YOUR BEST DEFENSE
After a finding of guilt, either by plea or trial, the trial court is responsible for imposing a sentence in accordance with the provisions of law.
The judge has limited options as to the sentencing since most statutes dictate the range of punishment available on conviction. The court has some discretion as to the range of sentencing after taking certain variables into consideration. These considerations can be divided into two categories; mandatory sentences and discretionary sentences.
Mandatory Sentences: Most statutes provide, either within the body of the statute or under the specific class of violations (felony, misdemeanor, petty offenses) with a range of available sentences. This range includes:
- Period of incarnation (jail) with a statutory minimum and maximum
- Fine range with a minimum and maximum
Statutory provisions usually take the following variables into consideration:
- Nature of the crime
- Age of the defendant
- Prior criminal record of the defendant
- Use of a weapon in the commission of the crime
- Physical injury to the victim
These variables are very objective, easily documented and require little, if any, judicial interpretation. These statutes usually state that if certain conditions are present the “sentence must be……….”. The judge can not deviate from the “must be” language, however the judge is free to impose a sentence somewhere between the minimum and maximum range based on the following subjective considerations:
- Nature of physical injury to the victim, if any
- Restitution made
- Victim impact statement
- Psychological issues of the defendant
- Substance abuse issues if any
- Results/recommendation of a pre-sentence probation report (PSI)
- General societal impact caused by the commission of the crime
- Attitude of the defendant (remorse)
- Any other mitigating factors which may considered in arriving at a just sentence
Discretionary Sentences: These discretionary considerations are present in virtually all sentencing determinations from a simple traffic ticket up to and including major felony sentences.
The court is usually accorded great flexibility in accessing input from sources in arriving at a sentence appropriate for the individual crime and defendant. These sources include, prosecutor, defense counsel, medical records, victim statement psychological/substance abuse recommendations and pre-sentence reports. The court can pick and choose from these sources as long as both the prosecution and defense are informed of the counts reliance on these sources, and are provided with all reports considered by the court. However, judges do not live in a vacuum, and it would be foolhardy to believe that they are not influenced by considerations not contained in official court records.
Courts are strictly prohibited from establishing a “policy” of handling matters in a certain way. (i.e. All DWI violators will spend a week end in jail). This policy is permitted in a statutory mandate but is improper as a exercise of judicial discretion. That having been said, judges will be influenced, either positively or negatively, by subjective considerations. A contrite defendant who acknowledges their wrongdoing and takes positive steps to rectify negative influences on their behavior is more likely to make an important positive influence on the sentencing judge. On the other hand a combative, surly, non-remorseful defendant will surely make the opposite impression.
Discretionary sentencing options available to the court include:
- Felony – 5 years or more
- Class A Misdemeanor – 3 years
- Class B Misdemeanor – 1 year
- Split sentence:
- Reduced period of incarceration plus probation
- Conditional discharge:
- Community service
- Counseling for psychological/substance abuse
- Youthful Offender
Obviously, a sentencing judge can take advantage of a wide variety of options designed to assist the defendant in returning to society while taking the victim into consideration.
Next to the trial, one of the most important services an experienced, knowledgeable, competent attorney can provide their client is exploring these sentencing options with the prosecutor and court to the advantage of their client.
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