By Sentencing Attorney Thomas Gallagher
The final step in the criminal court process is sentencing. Of course, many charges result in dismissal or acquittal. When the defense wins, it’s over.
The two broad stages of criminal cases are:
- whether criminal liability attaches, and if it does,
- the court then has sentencing jurisdiction.
If the court adjudicates guilt, then sentencing
Whether there was a guilty plea under a plea agreement or a guilty verdict after trial, the court has 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.
The Pre-Sentence Investigation Report
Before the sentencing, a Probation Officer will assist the judge by conducting a Pre-Sentence Investigation Report (“PSI” in Minnesota state court or “PSR” in federal court).
The defendant provides written information. Then a Probation Officer interviews her, and gathers other information. After that, the P.O. writes the presentence investigation report. The court provides 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 defense counsel prepare to present the best information and arguments.
The Minnesota Sentencing Guidelines
In the early 1980s, Minnesota developed Sentencing Guidelines. The goal was to encourage more uniform sentences for similar crimes among diverse judges. But the price for that has been punishments that no longer fit the crime.
The Guidelines are available online. They apply to all Minnesota felony crimes. The Guidelines don’t apply to gross misdemeanor and misdemeanor convictions. Non-felony convictions can affect the Criminal History score under the Guidelines, however.
The core of the Guidelines are the three Minnesota Sentencing Guidelines grids. Each shows a presumptive sentence in months, based upon:
- Severity Level of offense of conviction
- Criminal History score
The grids show some boxes in grey, others in white. The grey boxes show a presumptive disposition of a stayed sentence. The white boxes indicate a presumptive commitment to prison for the specified number of months.
The Guidelines also offer grounds for upward and downward departures from the presumptive sentence.
Mandatory Minimum Sentencing laws
For some crimes, the legislation tries to strip power from judges to impose fair, proportionate penalties. These are Mandatory Minimum Sentencing statutes. Controversy surrounds these laws. They cause evil results.
But from defense attorney perspective, we must try to avoid or mitigate the evil effects of Mandatory Minimums.
Some so-called mandatory minimums in Minnesota do not really claim to be mandatory. That’s because these statutes say a judge can disregard the “mandatory minimum.” Others explicitly attempt to limit the judge’s discretion to impose a proportionate sanction.
Sentencing attorneys like Thomas Gallagher work to avoid convictions where a Mandatory Minimum would apply. When that does not happen, we work to get the prosecutor or the judge to agree to a sentence below the “mandatory minimum.” Sometimes this takes the form of a downward departure motion.
What is a Disposition in a Minnesota criminal case?
A 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. Pretrial Diversion is a disposition since it’s the last court appearance for the successful defendant. It’s not a sentence, since the judge never adjudicates the defendant guilty.
But more loosely speaking, a defendant might receive a Pretrial Diversion disposition at a “sentencing hearing” documented in a “sentencing order” signed by a judge. It would be nice if courts could clean up the language, but if we understand the full meaning of these terms, we’ll be alright.
The defense attorney or the prosecuting attorney may prepare departure motions. Defense attorneys make more of these motions.
These could include, for example, motions for upward or downward departures from the Guidelines presumptive sentence.
Our motions can be either for:
- 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 a sentence imposing more months in prison than presumed under the Guidelines, but with a probation – a stay of execution. The conditions of the stay of execution could include up to twelve months 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 and deterrence; and
- rehabilitation (no repeat offenses)
Those two public policy goals are often in conflict. For example, when judges sentence people with sex crime convictions to probation and inpatient sex offender treatment programs, rate of recidivism is much lower than for than those judges commit to prison.
Most people in Minnesota care more about preventing future crimes than revenge on convicted criminals.
This is the best basis for a downward departure motion.
Where the court orders any sort of conditional disposition, the Probation Officer writing the PSI or PSR, the prosecutor, the defense lawyer, the defendant, and the victim if any, will all get to weigh in with recommendations. The judge will determine what, if any conditions may be ordered.
Types of Criminal Case 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)
- Executed Sentence (for felonies, accompanied by a Commitment Order to Minnesota Department of Corrections, or United States Bureau of Prisons)
Probation vs. Executed Felony Sentence
Strictly speaking, “probation” narrowly means the defendant was convicted of a crime but either imposition or execution of sentence was stayed, upon various conditions. If the conditions are all met, at the end of the period of the stay the defendant is then discharged from court jurisdiction.
Probation vs. a conditional disposition
Sometimes we misuse the term “probation” to broadly mean any conditional disposition where something worse will happen to the defendant if he or she fails to meet all conditions. This could apply to any of the dispositions listed above, other than outright dismissal (or acquittal).
What is the difference between a stay of imposition and a stay of execution?
A “stay of imposition of sentence” is where the judge postpones 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 a felony sentence means the court will never sentence the defendant to a felony sentence at all, if she does not violate a condition of the stay.
On the other hand, when a judge stays of 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?
A conviction on a felony charge becomes a non-felony conviction after a stay of imposition
In a case where the defendant was adjudicated guilty of a felony crime, probation means a prison sentence of a year-and-a-day or longer was stayed (either its imposition or its execution), provided conditions are met over the period of the stay. These conditions can include between zero to 365 days in the county jail (or workhouse).
After successful completion of a stay of imposition, the conviction is a non-felony for purposes other than civil rights to firearms under Minnesota law, expungement, federal immigration law, among other exceptions.
Why? Because the sentence imposed determines Minnesota conviction level. Minnesota Statutes §609.13.
After successfully completing a stay of imposition of sentence, the court discharges the defendant without ever imposing a felony sentence. This small advantage does not exist for Minnesota Stays of Execution of Sentence in misdemeanor cases.
Is a stay of imposition better than a stay of execution?
Yes, a stay of imposition is better than a stay of execution — but only slightly. 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 exceptions swallow that rule. After successful completing 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 it is better? Sure. It’s a bit better. But be real.
Often a felony defendant is better off trying to get a plea agreement for a gross misdemeanor sentence instead of a stay of imposition. That way the conviction will never be a felony, at least under Minnesota law. Minnesota Statutes §609.13.
If this seems complicated, that’s because it is. But that’s what an experienced sentencing attorney like Thomas Gallagher is for – to explain and to protect.
Revocation of probation
Strictly speaking probation means the defendant is on a stay of imposition or a stay of execution after the judge adjudicated 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 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 attorney applies.
Then the court will hold two court appearances:
- First appearance
- 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.
An executed vs. a 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 to the Minnesota Department of Corrections or the U.S. Bureau of Prisons.
Slavery today. The Thirteenth Amendment to the United States Constitution:
“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.”
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.
The defendant’s right to an executed sentence in Minnesota
Under Minnesota law, a defendant generally has the right to demand the Minnesota court “execute” their sentence. State v. Rasinski, 472 N.W.2d 645, 651 (Minn. 1991); see also, Minn. Stat. §609.135, subd. 7. But defendants rarely ask judges to execute their full sentences.
Most prefer probation and will put up with onerous conditions of probation to keep out of lock-up. But some prefer incarceration to probation, and it’s their right to choose jail or prison instead.
Defendant’s already committed to prison often will seek to execute sentences on old and pending cases to get credit and clear their status prior to release.
And when conditions of probation are too much, a defendant may prefer to execute their sentence than get violated later anyway.
A Sentencing Attorney can help get a favorable outcome
The law isn’t always easy to understand for regular people, at least not without some study. 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.
Question? You can call Minneapolis Sentencing Attorney Thomas Gallagher at 612 333-1500.