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How do I get sentenced for a crime?

October 28, 2011

2. Law, 7. Post-Trial

How do I get sentenced for a crime?


The end of the process is rarely pretty.  A client pleads out to a certain charge or set of charges, or a jury came back with a guilty verdict.  However the client gets there, most bets are off when sentencing arrives.  The judge is in charge.  The DA cannot bind the judge to give a defendant a certain sentence – period, end of story.  The best you can hope for is an agreement that the DA will agree to stay quiet at sentencing.  The pleading game does come into play – defense counsel will seek a plea that will result in certain suggested sentencing ranges.

But it’s not all bad.

Assume someone is charged with Burglary graded as a Felony 1 (meaning the place entered had a bed or some other manner of overnight accommodation – if not, it’s an F2).  F1 Burglary carries 10 to 20 years, and that is what the newspaper will report upon arrest or during the trial.  Ouch!  But that’s not how a judge sets a sentence.  He or she looks at the Sentencing Guidelines.  That doc takes into account not just the severity of the crime but also the criminal history of the defendant.

An F1 Burglary buys my client an “Offense Gravity Score” of 9.  Assume she has no criminal history.  That’s a “Prior Record Score” of zero.  Using this chart, she’ll get in a range of 12 to 24 months and is eligible for Boot Camp.  As her criminal history accumulates, her sentence drifts from left to right on the chart increasing with each step.  A client doesn’t enter the 10+ years range until they’ve proven their complete stupidity through not only being violent repeatedly but getting caught repeatedly.  Look, if you’re accumulating felony arrests, maybe you need a different line of work, OK?

The next step in understanding sentencing is how to interpret the “12” and “24.”  The “12” is the minimum sentence; the “24” is called the tail.  Tails are important.  If a tail is two years or more up to a day shy of five years, then the judge determines the place of confinement – the county hotel (“jail”) or a state correctional facility (“prison”).  A tail at or over five years means state time.  If a client is doing a life sentence on the installment plan, then state time is actually better than county time – county jails suck.

Another issue on the tail is that whenever it hits two years or more, then the state takes over parole instead of the county.  If the focus is to hit the street as soon as possible, then state parole sucks.  Requests for early release are routinely denied.  A 12 to 24 sentence will almost always see a minimum of 15 to 18 months in the pokey.  Also, with county parole the likelihood of getting work release after serving half the minimum is pretty good.  Keeping county control is why so many folks are sentenced to 12 to 23-1/2 months – the tail is under two years.

The sentencing hearing will include a Presentence Investigation – called a PSI.  It’s a doc that includes a full history – family, work, criminal, etc.  Any issues that could increase or decrease a sentence – called mitigating or aggravating circumstances – are also listed.  Remember that meeting with Probation & Parole is after trial or entering the guilty plea?  They wrote this report after it – so don’t be an idiot.

The PSI also includes the Guideline Sentence Form.  The GSF is usually the last page of the doc.  You want to find this page and go to the right column – “Guideline Ranges.”  The “Standard” range is your operative bit.  Count on getting that.

If you’re on the street before sentencing and get a term of incarceration instead of probation, will you leave in handcuffs?  Probably, yes.  I’ve had plenty of clients that were able to delay the start of serving their time because of appeals or the grace of the judge, but it’s rare.

Every judge is different, but my home-court guy has his magic phrase, “And now in lieu of sentence …”  That preceded every probationary sentence.

Sentencing is only a marginally controlled environment.  Avoid it.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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