A sentencing hearing within the context of a dui case resolution can occur based upon different circumstances. For example, a client may be before the judge as a result of a proposed plea agreement with agreed terms between the state and client that a judge must be willing to accept.
A settlement agreement may be designated as “open” meaning the client will get the benefit of acceptance of responsibility for the dui offense. However, the punishment appropriate will be decided by the judge following the respective arguments of opposing counsel. In such circumstances I believe it to be absolutely essential that an individual independently research and understand the potential consequences of a dui in Indiana prior to proceeding with an open sentencing hearing before a particular judge. Although one would expect that a lawyer would thoroughly communicate, much less understand the potential penalties possible within a specific prosecution, I have learned of far too many circumstances to the contrary.
Finally, such a sentencing hearing may come in the wake of an adverse verdict where, in effect, the hearing will be not much different than an “open” plea agreement hearing without benefit to the client of previously accepting responsibility for the dui offense.
In the case of a settlement or “plea” agreement to specific agreed to terms between defense counsel and prosecutor, it is important that the client be made aware that the presiding judge must be willing to accept the proposed terms. Depending upon the custom of the judge and/or the circumstances of a case, the negotiated agreement’s acceptance will either be a mere formality for the judge or an extensive hearing detailing why such an agreement to certain terms are appropriate. As a pre requisite to a judge being able to accept the terms of any bargained for plea agreement, the client must agree to admit to what is called a “facctual basis.” In other words, the client must be willing to accept the facts within an alleged prosecution that constitute the offense of owi in Indiana as a first step toward allowing for a proposed agreement to be legally binding. Should the judge in question reject the terms of the agreement, no admissions or statements made by the client admitting to the dui charge within a guilty plea hearing can be used against the client.
Should the dui agreement be to a misdemeanor dui offense both the guilty plea and sentencing can occur within one hearing. In the case of a felony dui in Indiana, unless waived by both parties, what is known as a “Pre Sentence Investigation,” or “PSI” must be compiled by the county probation department and available to a sentencing judge approximately thirty days following a guilty plea hearing within the later sentencing date. Such an agreement is formulated following an interview between the county probation department and the defendant. In theory, such a report is presented to allow the sentencing judge to learn about the criminal, family, mental health history, etc, of the defendant, in an effort to aid the judge in determining the suitability of any proposed settlement agreement.
For defendants whose agreements call for jail/prison tme to be served in excess of one year, the individual will be taken into custody following the sentencing hearing. For those with agreeements calling for imprisonment for less than a year, a request can be made to the judge for the individual to surrender oneself to a jail facility at a later date.
For defendants convicted of a felony whose ultimate probation will be transferred out of state, the complicated process under laws governed by interstate compact will dictate how and whether a defendant will be permitted to leave the state of Indiana following sentencing despite an accepted agreement before the court. For this reason, a capable attorney must know to advise a client on the payment of fees, completion of paperwork and the procedural process necessary to facilitate the approval process between the respective states before any sentencing hearing to avoid significant hardship thereafter.
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