Sentencing And Potential Outcomes

[Offenses index] [Home] [Book an appointment]

​

The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.

 

The vast majority of cases end in a guilty plea because of a plea agreement. This is often because while there is a ‘right’ to a trial, the immense pressure and strain that is put on defendants means they are often forced into it, while everyone involved in the process maintains a legal fiction that no one is coerced or pressured into that guilty plea and that a plea deal is simply an innocuous 'contract.' A person could be charged with a felony for simply stealing a candy bar. The potential mandatory minimum sentence or exposure to a potential sentence after a trial is too great a risk. Revoked bail may mean loss of freedom. This pressure is all part of the conveyor belt to a conviction that a defense attorney should try to stop.

 

Sentences as part of a plea deal are often agreed 'recommendations' made to a judge who imposes it. Based on that agreement for a particular recommendation, a judge can go lower but not higher. This practice has never heard of that happening. So, the agreed ‘recommendation’ is rubber-stamped and the case ends as choreographed based on plea negotiations between the defense attorney and prosecutor.

​

There are also potential outcomes that could be offered and that a defense attorney can and should advocate for. They are:

 

Filing: This is an agreement to, in effect, put the case in a file and do no more. The defendant needs to waive (give up) their right to a speedy trial, but if for a certain period (normally a year, but can be shorter or longer) there is no other issue, the case is dismissed. It requires a defense attorney to actually check that the dismissal is filed and for the prosecutor to do their job, but the case simply goes away. There is no guilty plea and no conviction. If there’s another case, the filed case is revived, zombie-like, and then there could be a trial or a guilty plea down the road.

 

Deferred disposition agreement: This is an agreement between a defendant and the government to do certain things, or not do others, in return for a good outcome - which could be a dismissal or a lesser charge. For a deferred disposition, a person pleads guilty but a conviction comes at sentencing, which is deferred - or put off to a later date. For a shoplifting case, for example, a person may be required to seek counseling or do a course, provide proof, pay restitution, not have any other criminal conduct, and if all conditions are met the defendant gets the good outcome (dismissal, or lesser charge for instance). These agreements also often outline a potential bad outcome, which could be an open sentence, or anything else. A formal agreement often means paying fees to the district attorney’s office. If successful and the outcome is a dismissal, another court appearance is often (but not always) unnecessary - so long as the guilty plea is withdrawn in any filing with the court.

 

Informal deferred disposition: This is almost identical to a formal agreement except there are no fees to pay - particularly helpful for those who are homeless or have little means. The agreement is often put on the record at a plea hearing (again there would be a guilty plea but a deferred sentence) and then a new hearing is scheduled after the agreed period. Then, if successful, the plea is withdrawn and the defendant gets the good outcome - whatever had been agreed (dismissal, or lesser charge for instance).

 

Things gets a little more complicated thereafter. A person may not get a good offer for a guilty plea and may take their chances with what is known as an ‘open’ plea. This could be because of a 'policy' by a district attorney about how they treat certain cases (like domestic violence or OUIs). That gives complete discretion to a judge in how they impose a sentence - subject to mandatory minimum sentences and some case law about how a judge should go through an analysis on what sentence to impose.

 

A person may also be sentenced after a guilty verdict at a trial. The same analysis is used for an ‘open’ plea, and the same mandatory minimum sentences apply.

 

A little more on that last point. For both open pleas and a post-trial sentence, the judge may have statutory constraints in the sentence they can impose based on minimum sentences set by legislators - hence the term ‘mandatory minimums.’ After that, and any analysis, the maximum sentence imposed (term of imprisonment, fine, driving suspension and so on) is determined by the class of crime for which they are charged and any special considerations for the particular charge. Here is a breakdown of classes of crime and sentences that could legally be imposed:

​

Class A offense: Maximum incarceration 30 years. Maximum fine $50,000.

Class B offense: Maximum incarceration 10 years. Maximum fine $20,000.

Class C offense: Maximum incarceration 5 years. Maximum fine $5,000.

Class D offense: Maximum incarceration 364 days. Maximum fine $2,000.

Class E offense: Maximum incarceration 6 months. Maximum fine $1,000.

 

Sentences can include a term of imprisonment with some of that time suspended for another set period with probation.  That is often expressed as follows - a two year sentence, all but 30 days suspended, and two years probation. In that instance a person would actually serve 30 days in jail. If a defendant has spent time in jail because they cannot afford bail, what was not a ‘sentence’ magically turns into one and with that sentence, the person would be released that day. Pre-trial incarceration is another of the ways the government used to force people to plead guilty. The system just nods and winks about that not being the case. Make no mistake - it is. If bail is revoked and bail arguments have failed - it is highly likely the only way to end the nightmare is plead guilty (or novo contendre) with ‘credit for time served’ or have to wait in a jail cell for a trial.

 

Probation, if imposed, will likely require other things to be done (and no criminal conduct would be part of that). If they are, and there are no other issues, then probation ends after the set period. A failure to complete certain conditions (such as complete a Certified Domestic Violence Intervention Program, or CDVIP) would mean a motion to revoke probation, perhaps some time in jail, and the probation clock ‘stops’ until the issue is resolved. In other words the ‘suspended’ period is left hanging over a person’s head until probation ends. Sometimes probation is completely revoked and the person serves the rest of the remaining suspended sentence. Using the above example, someone who violates probation ONE DAY before their two year probation is up could have to serve two years in prison - minus the thirty days.

​

To summarize, potential sentences are dependent on several factors - including the facts of a case. A defense attorney will need to advise their client on options that apply to a particular individual.

​