Friday, March 26, 2010

Sentencing Trials

If you are convicted of a crime, the next phase is sentencing. In certain circumstances, the government may ask for the statutory maximum, rather than the guideline sentence. A guideline sentence is based upon a grid that is created by the sentencing guideline commission. This grid offers a guideline to the courts for sentencing. The guideline is based upon several factors, including, but not limited to, how people in similar circumstances have been sentenced in the past. For example, in Minnesota, possession of over 42.5 grams of marijuana is a felony with a statutory maximum penalty of 12 months and one day in prison. The guidelines suggest a sentence that has that 12 months and one day in prison stayed (do not have to do) as long as certain probationary conditions are met. This may, or may not include local jail time with work release privileges. Take a person caught with 45 grams of marijuana, with no criminal history. This person may want a sentence with no jail and probationary conditions to remain law abiding and remaining jail/prison time hanging over their head. The government may ask the court to not follow the guidelines and seek what is called an upward departure. The government may want you to serve the full one year and a day in prison, even though the guidelines do not recommend that.

In past years, the Court was simply able to consider the arguments of the prosecutor to determine if this prison sentence recommendation would be the correct thing to do. The legal landscape has just changed considerably on this issue. Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law , the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. This means that you have a right to a sentencing trial before the Court is able to upward depart on your sentence. In State v. Rourke, 773 N.W.2d 913 (2009), the Minnesota Supreme Court explained the difference between “facts” and “factors.” It also explained the differing roles that courts and juries play in sentencing departures.

Under the Minnesota Supreme Court’s Rourke case, in order for a defendant to receive an upward departure, a jury must find “additional facts.” By “additional,” the court means some fact that wasn’t necessary to prove the offense and wasn’t admitted by the defendant. For example, a finding that a defendant sprayed the handcuffed victims with chemicals is a fact, and it might be the kind of fact that justified a departure IF the sentencing court decides that spraying helpless people with chemicals amounts to “particular cruelty.” The court, not the jury, gets to decide that issue because “particular cruelty” is not a fact, it’s a factor.

If you should have questions about your criminal case, contact Patrick W. Flanagan for a free consultation.



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