E – Criminal Sentencing
MD Criminal Sentencing Law
How This Step in the Criminal Justice System Works
The sentencing proceedings in state court can be divided in to five categories, as follows: (1) an original sentencing proceeding; (2) an Application for Review of Sentence by a Three-Judge Panel; (3) a Motion for Modification or Reduction of Sentence; (4) a Motion to Correct Illegal Sentence, and (5) a petition for inpatient drug addiction treatment. (Warnken, LLC handles sentencings whether or not we handled the trial. Call us for a consultation. 443-921-1100)
Sentencing includes:
(1) Who is the sentencing authority — judge or jury?
(2) Is there a mandatory sentence or are sentencing options discretionary with the judge, as to sentence imposition and sentence execution?
(3) What are the sentencing options — incarceration, home detention, treatment, probation before judgment, probation after judgment, fine, restitution, and community service?
(4) Are there applicable sentencing enhancement statutes – 25 years without parole in the “three-time loser” statute, life without parole in the “four-time loser” statute, life without parole for first degree murder, and the death penalty for first degree murder by the actual killer or a contract-for-hire hirer with aggravating factors?
(5) Is the sentence “with parole” or “without parole”?
(6) Has a presentence investigation (PSI) report been completed?
(7) Has a victim impact statement been submitted?
(8) Has the defendant been properly prepared for allocution to the judge?
(9) What sentencing factors are appropriate and which ones are inappropriate?
(10) What are the sentencing guidelines for this case? Does the State agree with the sentencing guidelines?
(11) Is the defendant eligible to file an Application for Review of Sentence by a Three-Judge Panel?
(12) Is the defendant eligible to file a Motion for Modification or Reduction of Sentence?
(13) Is the defendant eligible to file a Motion to Correct Illegal Sentence?
(14) When is the defendant eligible for parole?
(15) Is the defendant guilty of violating the terms of probation or parole?
(16) Can the defendant obtain any form of executive clemency, such as commutation of sentence or pardon?
In an original sentencing proceeding, the trial judge is the sentencing judge and imposes sentence on the defendant. Depending on the offense, on the defendant, and on the judge, the sentence may range from probation before judgment (PBJ) to the death penalty. In a PBJ, if the defendant successfully completes probation, the defendant obtains no criminal record from this incident, and the defendant may take steps to expunge the arrest record.
Most Circuit Court sentences involve a period of incarceration, which may range from one day to life without parole. All offenses have a maximum permissible sentence. Some offenses – but not many – have either a mandatory sentence or a mandatory minimum sentence. Some offenses – very few – have a sentence without parole. One example that does both is the use of a handgun in the commission of a felony or crime of violence, which has a 20-year maximum sentence and has a mandatory sentence of no less than five years, without parole.
For most offenses, the judge decides what sentence to impose, and whether to suspend some or all of that sentence, placing the defendant on probation, either at that time of sentencing or upon completion of a certain portion of the sentence. If the defendant is placed on probation, and later violates the conditions of the probation, the judge may find the defendant guilty of violation of probation and may require the defendant to serve the entire sentence that was originally suspended.
Even if the judge imposes the maximum sentence, and suspends none of that sentence, it is highly unlikely that the defendant will serve the entire sentence because of parole and/or release on mandatory supervision because of an accrual of diminution of confinement credits (e.g. good time credit). In fact, even if the sentence is “without parole,” it is highly unlikely that the defendant will serve the entire sentence because diminution of confinement credits.
If the defendant is found guilty of multiple offenses, the judge will impose a sentence on each offense, making the sentences run either concurrent or consecutive. When sentences are concurrent, the defendant is able to serve multiple sentences at the same time. When sentences are consecutive, the defendant must serve one sentence before starting to serve the next sentence. If, at the time the defendant is sentenced, the defendant is already serving a sentence, the judge may make the sentence currently being imposed run either concurrent or consecutive to the sentence for the prior offense.
In state court, the sentencing judge is aided by Sentencing Guidelines, informing the judge of the typical sentence for defendants similarly convicted, with similar criminal records, under similar circumstances. Because the guidelines are discretionary, judges may sentence higher or lower than the Sentencing Guidelines. In federal court, the once mandatory Sentencing Guidelines were held to be unconstitutional, as applied. The Sentencing Guidelines became discretionary and, thus, constitutional.
After sentencing, defendants may file, within 30 days, an Application for Review of Sentence by a Three-Judge Panel, attempting to persuade three new judges why the sentence imposed by the original sentencing judge is inappropriate. The panel has the discretion to determine whether to even grant a hearing on the application. By majority vote, the three-judge panel may decrease the sentence, leave the sentence unchanged, or increase the sentence. If the offense required a mandatory sentence, the three-judge panel may decrease the sentence, but only by unanimous vote.
After the original sentence, the defendant may file, within 90 days, a Motion for Modification or Reduction of Sentence, attempting to persuade the original sentencing judge to modify or reduce the sentence. The judge has the discretion to determine whether to even grant a hearing on the motion, which may be denied without a hearing, but which cannot be granted without a hearing. The judge may decrease the original sentence or leave the original sentence unchanged, but the judge may not increase the original sentence. The judge may also hold the Motion for Modification or Reduction of Sentence sub curia, meaning holding it, without ruling on it, planning to rule on it in the future, depending on the defendant’s adjustment while incarcerated. If the original sentence was imposed after July 1, 2004, the court will only have five years from the date of the original sentence to rule on a motion for modification of sentence. If the judge modifies or reduces the sentence in any manner, that constitutes a new sentencing, permitting the defendant to file another Motion for Modification or Reduction of Sentence.
After sentencing, defendants may file, at any time, a Motion to Correct Illegal Sentence, attempting to persuade the sentencing judge that the sentence violates the law. The judge has discretion as to whether to even grant a hearing on the motion. If the judge grants a hearing, the judge may deny the motion, leave the sentence unchanged, or grant the motion, which entitles the defendant to a new sentencing proceeding.
A defendant may also file a petition for alcohol/drug addiction treatment in lieu of incarceration seeking to have the Court suspend the sentence so that a defendant may enter inpatient drug addiction treatment. A defendant may file such a petition under Md. Health General Code Ann. §8-505 to §8-507 at any time – even before the sentencing proceeding. The first step petitions the court to order a drug abuse evaluation to inform the court if drug treatment would be useful in the particular case. The second step, assuming the first step is successful, is to petition the court to release the defendant into treatment. Importantly, Maryland can provide funds to cover both the evaluation and the treatment.
The Firm’s Criminal Sentencing Lawyers
In the Firm’s criminal trial practice, if the client is found guilty, or if a guilty plea is entered, then (1) there is an original sentencing proceeding, (2) there is probably both an (a) an Application for Review of Sentence by a Three-Judge Panel, and (b) a Motion for Modification or Reduction of Sentence, (3) there could be a Motion to Correct Illegal Sentence, and (4) there could be a petition for drug addiction treatment. In the Firm’s criminal appellate practice, on occasion, the Firm handles the original sentencing proceeding. This sometimes happens when the Firm has been retained – prior to sentencing – to represent the client on the Motion for a New Trial and/or on appeal in the Court of Special Appeals of Maryland.
When the Firm handles the original sentencing, the Firm evaluates the sentencing guidelines and prepares to argue against the prosecution’s interpretation of the guidelines, if different. The Firm prepares the client and the client’s family for being interviewed by a parole and probation agent in preparation of the Presentence Investigation (PSI) report. The Firm interviews all individuals who are favorable to our client, encouraging them to each prepare a written statement, explaining why the client should receive a lesser – and not a greater – sentence, and encouraging them to be present in court during the sentencing hearing. The Firm attempts to interview all individuals on the other side – victims, family and friends of victims, witnesses – to determine who, if anyone, might be willing to say that our client should receive a lesser — and not a greater — sentence, and, if so, to request their presence in court at the time of the sentencing proceeding.
The Firm obtains the PSI report and evaluates it with our client. If any negative information in the PSI is incorrect, the Firm investigates that information, in an attempt to refute it. The Firm evaluates any victim-impact statements. The Firm compiles information that is favorable to our client that is not in the PSI report or the victim-impact statements. If the PSI report is not received with sufficient time to investigate all of the information contained in it, the Firm requests a continuance of the sentencing proceeding. The Firm prepares our client for allocution at the sentencing proceeding. Finally, the Firm conducts the sentencing hearing.
In the Firm’s criminal sentencing practice, criminal appellate practice, and criminal collateral review practice, the Firm may represent the client (1) in a new version of the original sentencing proceeding if the Firm succeeds in having the original sentence declared illegal in (a) a Motion to Correct Illegal Sentence, (b) on appeal, or (c) in a criminal collateral review proceeding, such as a (i) Petition for Post Conviction Relief, or (ii) Motion to Reopen a Closed Post Conviction Proceeding, or (2) on a belated (a) Application for Review of Sentence by a Three-Judge Panel, or (b) Motion for Modification or Reduction of Sentence if the Firm succeeds in gaining post conviction relief based on the failure of trial counsel to file either or both of these motions.
In any of those circumstances, if the client was recently incarcerated, the Firm handles the new sentencing proceeding in the same manner as it would the original sentencing proceeding. If, on the other hand, the client has been incarcerated for at least three years, the Firm handles the new sentencing proceeding as a combination of (1) an original sentencing proceeding, and (2) a parole hearing. In other words, if the defendant was recently sentenced, the Firm treats the sentencing proceeding as an original sentencing because the client has a short track record as an inmate. However, if the defendant was sentenced more than three years ago, the Firm treats the sentencing proceeding as both a sentencing proceeding and a parole hearing because the client has a track record, while incarcerated, that the original sentencing judge could not have known about. To that extent, the Firm utilizes the parole factors, as follows:
Factor #1: The circumstances surrounding the crime.
Factor #2: The defendant’s physical, mental, and moral status.
Factor #3: The defendant’s progress during confinement, including academic progress in mandatory education programs.
Factor #4: Why to believe that, if the sentence is reduced or modified, or the defendant is released, the defendant will comply with all conditions, particularly the requirement not to violate the law.
Factor #5: Why to believe that the defendant’s reduction or modification of sentence, or even release, will not be harmful to society.
Factor #6: Any original or updated victim impact statement regarding the true nature, extent, and impact of the crime.
Factor #7: Any recommendation of the sentencing judge in the sentencing transcript.
Factor #8: Why to believe that the defendant needs less incarceration, or no longer needs incarceration at all, to increase the ability to lead a law-abiding life when released.
Factor #9: The defendant’s prior criminal and juvenile record and the defendant’s response to any prior incarceration, parole, or probation.
Factor #10: The defendant’s behavior and adjustment while incarcerated and the defendant’s participation in institutional and self-help programs.
Factor #11: The defendant’s vocational training, educational training, and other training.
Factor #12: The defendant’s attitude toward society, discipline, and authority.
Factor #13: The defendant’s past use of drugs and alcohol.
Factor #14: The defendant’s emotional maturity and insight into his or her problems.
Factor #15: Reports and recommendations made by institutional staff personnel or by any professional consultant, e.g., physician, psychologist, or psychiatrist.
Factor #16: The defendant’s occupational skills and employment plans and potential.
Factor #17: The defendant’s family status and stability.
Factor #18: The defendant’s readiness to assume obligations and undertake responsibilities.
Factor #19: The adequacy of the defendant’s plan for a place to live and employment and available resources, if released.
SUCCESS SPOTLIGHT – SENTENCING PROCEEDINGS
ORIGINAL SENTENCINGS (AT TRIAL)
With the defendant facing a 25-year sentence, the Firm persuaded the judge to impose a five-year sentence, all suspended, save six months of home detention.
In 2010, Warnken, LLC represented a man facing 15 years for robbery. The Firm persuaded the court to give probation. He remained a free man.
In 2009, 39 defendants were all charged by the federal government with bribery, conspiracy, immigration fraud, and green card fraud. 38 of them went to federal prison. The one we represented is on home detention with his family.
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VACATING ILLEGAL SENTENCES
The Firm has prevailed on multiple Motions to Correct Illegal Sentence. For example, the Firm has had three sentences vacated because they were illegal. This includes two 25-year-without-parole “three-time-loser” sentences and a life sentence. ____________________________________________________________________
SENTENCE MODIFICATIONS
We have had numerous successes via Motions for Modification or Reduction of Sentence. We experience success for non-lifers with a certain regularity. For lifers in particular, we have had 6 sentences reduced to numbers, and every lifer knows it’s a huge success to go from a letter (“L”) to a number. Five of the six have been released.
