Archive for the 'Sentencing' Category

Mandatory Minimums

If an offense has a mandatory-minimum sentence, that means that the law requires a trial court to, at a minimum, impose a certain defined sentence.   The trial court can go beyond the mandatory-minimum sentence, but it must at least impose the minimum sentence set forth in the law.

For example, consider the offense of Resisting or Obstructing a Peace Officer.  The statute defining the offense, 720 ILCS 5/31-1, requires either 100 hours of community service work or 48 hours in jail.   The Unified Code of Corrections also states that this offense is not eligible for judicial supervision.  As such, at a minimum, the trial court must convict the defendant of the offense (supervision is not a conviction) and impose either the community service work or send the defendant to jail.  The Court could go beyond this minimum, for example, by sentencing the defendant to a month of jail and 150 hours of community service work, however, the Court could not go less than the mandatory minimum.

Jeremy Richey

Discretionary Consecutive Prison Sentences

Whenever a judge sentences a person to prison for multiple crimes, the law may require the sentences to run back to back.  When this happens, it is said that the sentences are mandatory-consecutive sentences.  If the law does not require consecutive sentences (in other words the sentences can run at the same time — concurrently), if appropriate, a judge can still choose to make the sentences run one after another under 730 ILCS 5/5-8-4(c).  This is known as a court’s discretionary or permissive authority to impose consecutive sentences.

Jeremy Richey

DUI Supervision: No Record?

Regarding Illinois DUI cases, one of the benefits of judicial supervision is that it prevents people from being convicted of DUI. As a matter of law, a person on supervision for an offense has not been convicted of the offense. But, this doesn’t mean that the DUI disappears in any way. A person should not equate the lack of a conviction with not having a record. DUI supervision can’t be expunged (officially erased), so there will always be an arrest and court record where a court sentences a person to DUI supervision.

So, what is the point of not being convicted of DUI? One of the most significant benefits of not being convicted deals with revocation of driving privileges. A sentence of DUI supervision will not trigger a revocation whereas a conviction will.

But note that a revocation in a given case is separate from any statutory summary suspension in the case.   Revocations are often on top of (in addition to) statutory summary suspensions.

Further note that, as a general rule, revocations are worse than suspensions.

Jeremy Richey

Pay Fines … Now

Stack of Money

When a court gives one of my clients a lengthy amount of time (e.g., a year) to have his fines and fees paid in full, I always tell the client to begin making payments right away.  Too many defendants make life difficult for themselves by putting off their payment obligations.  A defendant who fails to pay his fines risks having his supervision or probation revoked.  Furthermore, the government will likely arrest a defendant who fails to pay his fines and fails to show up for court as ordered.  Court fines are a debt that will not go away.  If a defendant fails to give his fines proper attention, a judge will get the defendant’s attention … and the result may not be pleasant.  So, defendants should pay as much as they possibly can each month towards their fines.  It is very important that defendants pay off their fines as soon as possible.  To do anything other than this is a recipe for disaster.

Jeremy Richey

Illinois Sentencing Hearings — #2

Evidence During Sentencing Hearings

During a sentencing hearing, both the defendant and the prosecution have the opportunity to present evidence that is relevant and reliable.  No other rules of evidence apply, so evidence that is inadmissible at trial may be admissible at sentencing.

At sentencing, the defendant seeks mercy from the judge.  The defendant introduces evidence that (hopefully) will convince the judge to show him as much mercy as possible.  To reach this end, the defendant may testify himself and he may offer the testimony of his friends, family, and members of his community.   The best evidence at sentencing hearings usually is, as Scott Ealy recently wrote, evidence that shows “specific post-crime conduct that demonstrates a firm and consistent resolve to make matters right.”  For example, in a DUI case, evidence that a defendant completed alcohol counseling (and took it seriously) long before being ordered to do so, will be much more powerful than a defendant’s promise not to use or abuse alcohol again.

Jeremy Richey

Illinois Sentencing Hearings — #1

Introduction

This blog post is the first post in a series about sentencing hearings in Illinois.  I will be writing most of these posts with the general public in mind, however, the legal practitioner unfamiliar with sentencing hearings may find these posts useful too.

When Sentencing Hearings Occur

Sentencing hearings are absent from most criminal cases.  This is because the defendant receives his sentence as result of a fully-negotiated plea bargain with the prosecutor’s office.  A plea deal happens when a defendant agrees to plead guilty and the prosecutor agrees to the sentence the defendant will receive in exchange for his plea of guilty.  A judge must approve the plea agreement, however, the acceptance of the plea by the judge is not a sentencing hearing.  A sentencing hearing is something different.  At a sentencing hearing, the judge decides the defendant’s sentence after hearing the evidence and arguments of the parties.

So, how does a sentencing hearing come about?  One way is when a defendant goes to trial and loses his case.  The trial in a criminal case merely results in the defendant being found guilty or not guilty.  The sentence the defendant receives after being found guilty is determined by a judge at a later sentencing hearing.

Another way for a sentencing hearing to occur is for a defendant to enter  what is called a blind or open plea.  This occurs when the defendant pleads guilty without any bargain in exchange from a prosecutor for his guilty plea.  This might happen for a number of reasons, but one reason is the defendant thinks the judge may give him a better sentence than he would receive if he accepted the prosecutor’s plea offer.

Sentencing hearings can also occur after the government revokes a defendant’s probation, conditional discharge, or supervision.  In these cases, a judge previously sentenced the defendant (to probation/conditional discharge/supervision), but the revocation of the defendant’s sentence triggers a new sentencing hearing and a new (and often harsher) sentence.

The defendant may also arrive at a sentencing hearing with a partially-negotiated plea.  When this happens, all terms may be negotiated except for one or two terms that the parties let a judge decide.  For example, in a DUI case, the parties may ask a judge to decide whether judicial supervision or probation should be imposed, but all the other aspects of the sentence (such as fines, alcohol counseling, community service work, etc.) have already been agreed to by the parties.

Jeremy Richey

First-Offender Probation & Expungement

Since we no longer have a war on drugs, let’s start doing things that help defendants get their lives back together.  One small thing we can do in Illinois is shorten the expungement waiting period for people sentenced to first-offender probation.

In Illinois, first-offender probation is a possible sentence in some drug cases.   With first-offender probation, the defendant does not receive a conviction.  With that stated, absent expungement, a defendant will still have a paper trail even if he is not legally convicted of the crime that he is receiving first-offender probation for.  He will still have an arrest record in a state police database and a public court file that anyone can review.   Furthermore, in most Illinois counties, some of the person’s case information will be publicly available on the Internet through judici.com or some other website.   A felony paper trail (regardless of whether the defendant is legally convicted of the crime), among other things, can make it difficult for a person to get a job.  When a person’s first-offender probation is expunged, it disappears from the state police database, the court system, and judici.com.  So, expunging first-offender probation is a good thing for a defendant who is trying to get his life back together.

Currently, a person is eligible to expunge his first-offender probation five years after successfully completing first-offender probation.  Since first-offender probation lasts two years, this means that it will be seven years after a judge enters the sentencing order before a person can begin the expungement process.  Why not reduce this wait period from five years to two years (or even less)?  Currently, many misdemeanors are expungeable two years after a person is successfully discharged from supervision.  The sooner a person can get the stain of his arrest and sentence removed from the public record, the sooner he can move on with his life.

Jeremy Richey


BROUGHT TO YOU BY:
Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.