Indiana Post-Conviction Rule 1(10)

Criminal trial and appellate lawyers may not be familiar with a court rule that applies on occasion to their cases: Indiana Post-Conviction Rule 1(10). This rule applies when a criminal defendant obtains relief from a conviction or sentence and his case is returned to the trial court for further proceedings.

The rule reads as follows:

(a) If prosecution is initiated against a petitioner who has successfully sought relief under this rule and a conviction is subsequently obtained, or

(b) If a sentence has been set aside pursuant to this rule and the successful petitioner is to be resentenced, then the sentencing court shall not impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court's reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence, and the court shall give credit for time served.

(c) The provisions of subsections (a) and (b) limiting the severity of the penalty do not apply when:

(1) a conviction, based upon a plea agreement, is set aside;

(2) the state files an offer to abide by the terms of the original plea agreement within twenty (20) days after the conviction is set aside; and

(3) the defendant fails to accept the terms of the original plea agreement within twenty (20) days after the state's offer to abide by the terms of the original plea agreement is filed.

The policy behind the rule is straightforward: criminal defendants should not be penalized for obtaining relief from their convictions or sentences. In other words, defendants should not be afraid to seek relief for fear the consequences could be worse for them.

The text of the rule seems to limit its reach to only those defendants who receive relief “under this rule,” meaning through Indiana’s post-conviction process. However, Indiana’s appellate courts have applied it even where a defendant obtains relief from a conviction or sentence in other types of proceedings, including on direct appeal, habeas proceedings, etc.

Thus, under the rule a defendant who previously obtained relief from a conviction or sentence and finds himself being resentenced generally cannot receive a more severe penalty than originally imposed.

There are two exceptions to this rule. First, the court can impose a more severe penalty on resentencing if it relies upon “identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Usually this involves the defendant’s conduct while incarcerated.

Second, if the original conviction and sentence were the result of a plea agreement the sentencing limitation does not apply if the State, within 20 days after the conviction is set aside, files an offer to the defendant to abide by the terms of the original plea agreement, and the defendant fails to accept the offer.

This rule only applies on occasion. But it is important that attorneys are aware of the rule, because it does apply and can have a profound impact on a defendant’s sentence.