Sentencing Hearing Guide

Estimated reading time: 17 minutes

Sentencing Attorney Thomas Gallagher’s guide

The final step in the criminal court process at the trial court level may be sentencing. Of course, many charges result in dismissal or acquittal. When the defense wins, it’s over — no sentence. But if convicted, then a sentencing attorney can help the court arrive at a fair and just, lenient, sentence.

The two stages of criminal cases are:

1. whether criminal liability attaches, and if it does,
2. then the court has sentencing jurisdiction.

If judge “adjudicates;” then sentencing: After a valid guilty plea under a plea agreement or guilty verdict after trial, the court has a basis for sentencing jurisdiction. The court then schedules a sentencing hearing. Your sentencing attorney can make a big difference for you. Rule 27 of the Minnesota Court Rules of criminal Procedure addresses the procedures. We’ll cover the main points here.

Pre-Sentence Investigation Report

Before sentencing, a Probation Officer assists the judge by creating a Pre-Sentence Investigation Report. (A “PSI” in Minnesota state court, or “PSR” in federal court). The defendant provides written information. Then a Probation Officer interviews her, and gathers records and other information. The P.O. then writes the presentence investigation report, providing a copy to the defense and the prosecution. The defendant can ask that the court correct errors in the PSI.

The judge will rely on this report. It is important that the defendant and his or her sentencing attorney prepare to present the best information and arguments.

Minnesota Sentencing Guidelines

In the early 1980s, Minnesota developed “Sentencing Guidelines.” The goal was to encourage more uniform sentences for similar felony crimes among diverse judges. The “Minnesota Sentencing Guidelines” are available online. They apply to all Minnesota felony crimes. So, the Guidelines don’t apply to gross misdemeanor and misdemeanor convictions. But non-felony convictions can affect the Criminal History score under the Guidelines.

The core of the Guidelines are the three grids. Each shows a presumptive sentence range in months, based upon:

• Severity Level of offense of conviction, and
• Criminal History score.

The grids show some boxes in grey, others in white. The grey boxes indicate a presumptive disposition of a stayed sentence (felony probation). And the white boxes indicate a presumptive “commitment” to prison for the specified number of months. The Guidelines also suggest grounds for upward and downward departures from the presumptive guidelines disposition and range of months.

Mandatory Minimum Sentence laws

For some crimes, the legislature tries to strip power from judges to impose fair, proportionate penalties. These are Mandatory Minimum statutes. Controversy surrounds these laws. They cause evil results. But from defense attorney perspective, we must try to avoid or mitigate the severe effects of Mandatory Minimums.

Some mandatory minimums in Minnesota don’t really claim to be mandatory. So under these statutes, a judge can ignore the “mandatory” minimum. Others explicitly attempt to remove the judge’s discretion to sentence fairly.

Sentencing attorneys like Thomas Gallagher work to avoid convictions where a Mandatory Minimum would apply. Failing that, we then work to get the prosecutor or judge to agree to a sentence below the “mandatory minimum.” This mat take the form of a “downward departure” motion.

Jury trial: Especially in cases where a mandatory minimum sentencing statute may apply, we believe that the defense should have the right to inform the jury about the sentence, in the event of a guilty verdict.

Jury sentencing: While England traditionally favored judge sentencing, in colonial and post-colonial America communities favored sentencing by juries. In states where juries did not have sentencing authority, they made a recommendation. But jurors’ role in sentencing has all but disappeared from American courts. Yet, modern juries do often tell the judge their views on sentencing, after a guilty verdict.

What is a “Disposition?”

A disposition is an action that the courts define as the final outcome of a case. So, every criminal sentence is a disposition. But not every disposition of a criminal case is a sentence.

Strictly speaking, several criminal case dispositions never result in a “sentence.” Examples include a “Pretrial Diversion” disposition, under Rule 27.05 of the Minnesota Court Rules of Criminal Procedure. Pretrial Diversion is a disposition since it may be the last court appearance for the successful defendant. But it’s not a sentence, since the judge never adjudicates the defendant guilty. (Sentencing jurisdiction never attaches).

“Adjudication” is when a “conviction” occurs. Adjudication, or conviction, occurs the moment a judge finds that (a) the defendants procedural and legal rights were afforded or freely waived, and (b) a factual basis to believe the defendant is in fact guilty does exist. Some dispositions of criminal cases stop before adjudication (conviction), while others occur after. And when a judge does “adjudicate” (convict) a defendant, that moment normally comes near the beginning of the sentencing hearing. So, a “guilty” verdict or plea does not result in a conviction, until and unless a judge accepts the verdict or plea, and adjudicates the Defendant “convicted”guilty.”

But loosely speaking, a “sentencing order” could document a Pretrial Diversion disposition at a “sentencing hearing.” In that instance, the court is referencing the name of the court appearance, though it might not be accurate in terms of what happened.

Courts could clean up their language. But if we understand the full meaning of these terms, we’ll be alright. And your sentencing attorney can help with that.

Departure Motions

The defense attorney or the prosecuting attorney may prepare sentencing “departure motions.” Defense attorneys make most of these motions. But sometimes prosecutors do, as well.

These could include, for example, motions for upward or downward departures from the Guidelines presumptive sentence. In addition, our motions can be for either of two types of departure, from the Guidelines presumptive sentence:

• dispositional departures (i.e., a stay rather than executed prison commitment), or
• durational departures (i.e., fewer months rather than more years).

Example: A judge could impose a sentence that is both an upward durational departure, and a downward dispositional departure. That would mean imposing more prison months (durational) than presumptive under the Guidelines, but with a stay of execution (dispositional). The conditions of the stay of execution could include up to 364 days in county jail as probationary jail time.

“Amenable to probation”

Can the defendant rehabilitate himself? How good are the prospects? A judge may downwardly depart from a presumptive prison commit if she believes the defendant is amenable to probation. If the defendant is a good prospect for rehabilitation, she is amenable to probation.

People broadly want sentences for convicted criminals to serve two purposes:

• retribution, incapacitation and deterrence; and
• rehabilitation (no repeat offenses)

But those public policy goals often conflict. For example, when judges sentence people with sex crime convictions to probation and sex offender treatment; the rate of recidivism is much lower than for than those judges commit to prison. Most people care more about preventing future crimes than revenge on convicted criminals. This is the best basis for a downward departure motion.

Conditions

Where the court orders any sort of conditional disposition, the judge seeks input from many. So, the Probation Officer, prosecutor, defense lawyer, defendant, and the victim if any, will all get to weigh in. But the judge will determine the conditions.

Types of Criminal Dispositions

Of the several types of case dispositions below, only three of them are a “sentence;” only two are a felony sentence:

• Dismissal (or acquittal)
• “Continuance for Dismissal without a Plea,” with Conditions; aka Pretrial Diversion
• “Stay of Adjudication” (guilty-plea offered but not accepted by judge, with conditions)
• A “Stay of Imposition” of Felony Sentence
• “Stay of Execution of Sentence” (after imposition of a felony sentence)
• “Executed Sentence” (for felonies, accompanied by a Commitment Order to Minnesota Dept. of Corrections, or U.S. Bureau of Prisons)

Your sentencing attorney should know these well.

Probation vs. Executed Sentence

Strictly speaking, under Minnesota law, “probation” narrowly means the defendant was convicted of a crime; but the judge stayed either imposition or execution of sentence, upon various conditions. If the conditions are all met; when the stay expires the defendant is then discharged from court jurisdiction.

Probation vs. conditional disposition: Sometimes we misuse the term “probation” to broadly mean any conditional disposition where something bad will happen to the defendant if she fails to meet all conditions. This could apply to any of the dispositions listed above, other than outright dismissal (or acquittal).

Continuance for Dismissal vs. Stay of Adjudication

“Continuance for Dismissal without a Plea,” is an agreement between the Prosecutor and the Defendant, to postpone the criminal charges for up to one year, with Conditions including waiver of right to a speedy trial. If the Defendant complies with the conditions, the criminal charge(s) are automatically dismissed by the court at the end of the time period. Minnesota Statutes § 609.132 makes the “decision to offer or agree to a continuance of a criminal prosecution is an exercise of prosecutorial discretion resting solely with the prosecuting attorney.” That means a judge need not approve and may not block a Continuance for Dismissal. A defendant who successfully completes a Continuance for Dismissal, never plead guilty and has only dismissed charges in the court record. So he or she would have no conviction record resulting.

Pretrial Diversion: A Pretrial Diversion Program is similar, except more often associated with felony charge cases. See, Rule 27.05, Minnesota Rules of Criminal Procedure; Minnesota Statutes § 401.065.

A Stay of Adjudication can also result in no conviction under Minnesota law, but requires a rights waiver and offer of a guilty plea, at the beginning. The word “stay” means to pause (the court proceedings). The word “adjudication” means that a judge has ruled that the defendant’s rights have been exercised or waived, and the the result was either a guilty verdict or guilty plea (accepted by the judge). So the word “adjudication” is synonymous with “conviction.”

A Stay of Adjudication is an agreement between the Prosecutor and the Defendant, to postpone the criminal charges for a specified time period, with Conditions. If the Defendant complies with the conditions, the criminal charge(s) are automatically dismissed by the court at the end of the time period. The Conditions of a Stay of Adjudication, are agreed upon by the Prosecutor and the Defendant, but often include “no same or similar offenses,” restitution (if any), fine, and other conditions specific to the case.

Can a judge order a Stay of Adjudication over the objection of the prosecutor? In certain types of cases, like certain drug cases and juvenile cases, the judge can (see below). But in certain other cases listed in 609.095, a Stay of Adjudication over the objection of the prosecutor “must be justified in writing and on the record” by the judge. Minn. Stat. § 609.095. In most other types of criminal cases, however, “the district court can use its inherent judicial authority to stay adjudication ‘sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.'” State v. Foss, 556 NW2d 540, 540 (Minn. Supreme Court 1996); See, State v. Krotzer, 548 NW2d 252 (Minn. Supreme Court 1996).

But in some special types of cases, judges can stay adjudication regardless of a prosecutor’s objection, for example, in juvenile cases (Rule 15.05, Subd. 1 (B) Minnesota Rules of Juvenile Delinquency Procedure; Minnesota Statutes § 260B.198, Subd. 7), in certain drug cases (Minnesota Statutes §152.18), and in petty misdemeanor cases.

And judges can order a Stay of Adjudication disposition, even where the prosecutor has not agreed. Further, “A court may defer prosecution as provided in paragraph (c) for any person found guilty, after trial or upon a plea of guilty, of” certain Controlled Substance crimes, under Minnesota Statutes §152.18, Subd. 1; and “the court must defer prosecution” for certain defendants facing Controlled Substance 5th Degree Possession charges (even after a “guilty” verdict after a trial).

Note that a non-citizen defendants should generally avoid a Stay of Adjudication, since the federal immigration court does not respect Minnesota law, and view the imperfect guilty plea as a conviction.

“Stay of imposition” vs. “stay of execution”

A “stay of imposition of sentence” is where the judge postpones imposing a felony sentence for years, upon conditions. If the defendant meets the conditions, there never is a felony sentence. Minnesota Statutes § 609.135

The moment of sentencing is the moment the judge imposes a sentence. So a stay of imposition of felony sentence means the court will never sentence the defendant to a felony; if she does not violate a condition of the stay. (A felony sentence is one year or longer, imposed.) But, when a judge stays of the execution of a felony sentence already imposed, the person was sentenced to a felony. The judge only postpones the execution of it conditionally. Simple, right? Your sentencing attorney can help.

Felony conviction becomes non-felony after stay of imposition?

In a case where the defendant was adjudicated guilty of a felony crime; probation means a prison sentence of a year or more was stayed (its imposition or its execution), provided conditions are met. These probationary conditions can include between zero to 364 days in the county jail (or workhouse).

After successful completion of a stay of imposition, the conviction becomes a non-felony but with many, big exceptions. So for example, the law still treats it like a felony for purposes of civil rights to firearms, expungement, and federal immigration law, among other exceptions.

Why? Because the “imposed” sentence determines Minnesota conviction level (whether “executed” or not.) Minnesota Statutes § 609.13.

After successfully completing a stay of imposition of sentence, the court discharges the defendant without ever imposing a felony sentence. In misdemeanor cases, this tiny advantage does not apply.

FAQ: Is “stay of imposition” better than “stay of execution?”

Yes, a stay of imposition is better than a stay of execution — but barely. The problem? Many lawyers and others in the criminal justice system overstate the value of a stay of imposition. “It will be reduced to a misdemeanor if you successfully complete the stay of imposition,” they say. Well, yes, Minnesota Statutes §609.13 says the conviction level will be reduced to a misdemeanor.

But the numerous exceptions swallow that rule. After successful completion of a stay of imposition on a felony adjudication, the conviction will still be a felony for purposes of civil rights to firearms, expungement, federal immigration law, and so on. Not only that, potential employers will see it all on the public criminal court record. So is it better? Sure. It’s a little better. But let’s be real.

Often a felony defendant would be better off with a plea agreement for a gross misdemeanor sentence instead of a stay of imposition. That way the conviction will never be a felony (even for a minute), at least under Minnesota law. Minnesota Statutes § 609.13.

If this seems complicated, that’s because the law is unnecessarily complicated. But that’s what an experienced sentencing attorney like Thomas Gallagher is for – to explain and to protect.

Maximum Length of Probation

Minnesota Statutes § 609.135, Subd. 2 is titled “Stay of sentence maximum periods.” A “stay of sentence” is what we often call “probation.” That statute provides the maximum period of the stay, or of probation shall be:

1. Felony convictions: the general rule is up to five years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is less. But for about 18 listed crimes and inchoate crimes, up to four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer.
2. Gross misdemeanor convictions: For listed statute sections 169A.20 (DWI), 609.2113, subd. 3 (CVO), or 609.3451 (Crim Sex 5), the stay shall be up to four years. But the general rule (for other gross misdemeanor convictions), is the stay shall be up to two years.
3. Misdemeanor convictions: For listed statute sections 169A.20 (DWI); 609.746, subd. 1 (Interfere with Privacy); 609.79 (Obscene or Harassing Phone Calls); or 617.23 (Indecent Exposure); or a misdemeanor under section 609.2242 (Domestic Assault) or 609.224, subd. 1 (Assault 5) in which the victim was a family or household member, the stay shall be up to two years. But the general rule (for other simple misdemeanor convictions), is the stay shall be up to one year.
4. But the court may extend the period of probation (the stayed sentence) for one to three years for failure to pay off any restitution or to complete ordered treatment, according to this statute.

Revocation of probation

Strictly speaking probation means the defendant is on a stay of imposition or execution after the judge adjudicates her guilty. But broadly, the term probation describes any conditional disposition, even where the person was not “convicted.” (And so the court yet lacks sentencing jurisdiction.)

If the court believes the defendant may have violated a condition, it initiates probation revocation proceedings. For felonies, the probation officer typically does this. Rule 27.04 of the Minnesota Court Rules of Criminal Procedure lays out the procedures.

The court may mail the defendant a notice to attend the hearing. Or the court may issue an “Arrest and Detain Order.” An “A & D” is basically an arrest warrant for an alleged probation violation. After an arrest on an A & D; the defendant may sit in jail a while before appearing again in front of the judge. The right to a defense and sentencing attorney applies.

Then the court will hold two court appearances:

1. First appearance, and
2. Contested, “Morrissey” hearing.

At the first appearance the parties may come to a settlement agreement. The Probation Officer has a lot of influence in these proceedings.

FAQ: “Can a Judge extend Probation beyond original end date?”

Yes. When a Judge finds that a defendant currently on probation (Stay of Imposition or Stay of Execution) violated a condition of probation, the court can either impose and-or execute prison (or jail) time (see above); or, the court can extend the length of the probation period beyond its original end date.

When the court extends probation to a later end date than it previously set, typically the defendant is near the end of the original discharge date but has not completed all the conditions of probation. So, the judge is then faced with a choice of revoking the stay (revoking probation) and executing prison or jail time, or perhaps giving the defendant more time to get it done, instead. If you are facing this situation, be sure to discuss with your lawyer, for further analysis.

FAQ: “Can the Court Violate Me After I’m Off Probation?”

After the probation period expires, the probationer can no longer face probation violation sanctions, except for acts or failures to act prior to its expiration.

Minnesota Statutes § 609.14, Subd. 1 (a) says:

“When it appears that the defendant violated any of the conditions of probation during the term of the stay, but the term of the stay has since expired, the defendant’s probation officer or the prosecutor may ask the court to initiate probation revocation proceedings under the Rules of Criminal Procedure at any time within six months after the expiration of the stay.”

Minn. Stat. § 609.14, Subd. 1 (a)

So, if the defendant allegedly violated a condition of probation prior to its expiration, he or she could still get locked up in jail or prison but the law requires revocation proceedings be initiated (not necessarily completed) within six months of the expiration. Getting help from your sentencing attorney is this situation can make a big difference.

Executed vs. Stayed sentence

“Executed” is the opposite of a “stayed” sentence.

With an executed sentence, there is no probation or court supervision of conditions. Executed generally means executed jail or prison time.

In the case of felonies, an executed sentence means a “Criminal Commitment Order” giving legal authority (ownership) over the person of the defendant (body and rights) to the Minnesota Department of Corrections or the U.S. Bureau of Prisons. Once that happens, the court no longer supervises the convicted person, the Corrections Agency does.

Slavery today: the 13th Amendment helps underscore that a court’s commitment Order transforms a person from a citizen into someone with the status of a slave. This is a recognition of the nature of incarceration in a prison.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

13th Amendment, U.S. Constitution

After that, DOC (or BOP) can release the defendant from prison on Supervised Release, Parole, transitional programming, half-way houses, etc. The law or a judge many partially or fully restore civil rights after that.

Right to executed sentence

Under Minnesota law, a defendant generally has the right to demand the Minnesota court “execute” their sentence. State v. Rasinski, 472 NW2d 645, 651 (Minn. Supreme Court 1991); see also, Minn. Stat. §609.135, subd. 7 (Defendant may demand execution of felony sentence). But as you might expect, defendants rarely ask judges to execute their sentences.

Most prefer probation and will put up with onerous conditions of probation to keep out of lock-up. But some few prefer incarceration to probation, and it’s their right to choose jail or prison instead. But when conditions of probation are too onerous, a defendant may choose to execute their sentence rather than get violated later anyway.

Defendants already serving a prison commitment, often seek to execute sentences on old and pending cases (hopefully, concurrently with their current sentence). They want jail credit; and to clear old cases prior to release.

Question? Call Attorney Thomas Gallagher, 612 333-1500

The law isn’t always easy to understand, at least not without some study. See: Criminal Law Questions | FAQ and Answers.

But sentencing attorney Thomas Gallagher knows that when the client understands the law, the client feels more in control. And that helps him get a better outcome for his client. You are welcome to call sentencing Attorney Thomas Gallagher with questions.

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