Articles Posted in Sentencing

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This past November, the New Jersey Supreme Court decided State v. Kiriakakis.  There the Court upheld the constitutionality of a sentence within the range authorized by a jury verdict that included a mandatory period of parole ineligibility, or parole disqualifier.

Understanding this holding requires a review of basic sentencing concepts.  First, the New Jersey Code of Criminal Justice authorizes ranges of sentences for different degrees of criminal offenses.  Generally speaking, someone convicted of a fourth degree offense can receive a sentence of up to 18 months.  A third degree offender can receive a sentence within a range of three to five years.   A second degree offender can be sentenced to between five and ten years.  With some notable exceptions not relevant here, a first degree offender can be sentenced within a range of ten to twenty years.  A sentence for a particular defendant within the statutory range is supposed to be based upon a balancing of aggravating and mitigating factors that are also listed in the sentencing section of the Code.  These factors are supposed to help guide the judge to customize the sentence to the needs of the case.  Our judges have considerable discretion to impose sentences within the applicable statutory ranges, so long as they follow the proper procedures.

Sentencing involves more than just setting a number within a range based upon a balancing of factors listed in the statute.  Some sentences are a “flat” number, which is simply a term of years standing alone.  However, sentences can, and often are, composed of two separate numbers.  The “top” number is the highest or outside number of years that a defendant will serve.  The “bottom” number is the amount of time that a defendant must serve before becoming eligible for parole.  The latter may be referreed to as a “period of parole ineligibility”, “parole disqualifier”, or “stip”.  (Both of these numbers can be reduced by “credits”, but that issue is not relevant here). Continue reading ›

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A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading ›

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Effective January 1, 2017, Missouri sex offenders guilty of 13 different sex crimes based on acts committed on or after August 28, 2006, are subject to additional security requirements.  They will be required to wear GPS monitoring devices for the rest of their lives.  This includes defendants who were sentenced before this requirement was enacted.  This raises two important issues.  First, many of these defendants resolved their cases prior to the first of this year, and this requirement was not included in their original plea arrangement or sentence.  Additionally, it makes daily functioning in the community as a convicted sex offender that much more onerous and burdensome.  Both of these issues require careful consideration.

The GPS devices at issue alert authorities if an offender “lingers” near a school or park.  When the device activates, the defendant receives directions from a state official to, for example, report immediately to a probation officer.  The devices are also waterproof, and will alert the authorities if a defendant attempts to remove it.  The new rules affect hundreds of sex offenders throughout the state.

The first problem that the implementation of this GPS monitoring technology raises is that it was not contemplated by plea deals agreed to, or sentences imposed, prior to January 1, 2017.  Defendants who resolved their cases prior to the implementation date agreed to plead guilty based upon certain stated terms and conditions, all of which were presumably included in the records of their cases.  At sentencing, the court imposed certain terms and conditions of supervision with which they had to comply prospectively.  They were presumably advised by competent counsel, received notice of all of the requirements of community supervision, and consented to them in connection with the disposition of their cases.  In short, they knew the deal, and consented to it.  Now, after the fact, the rules are being changed with the addition of new, burdensome requirements that are apparently permanent.  How the terms and conditions of a plea arrangement or sentence can be so altered with no discussion or debate runs roughshod over basic concepts of due process, as well as fairness and decency. Continue reading ›

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Jeff Sessions, our new Attorney General, issued a Memorandum to all United States Attorneys on May 10, 2017 which states, in relevant part, that “it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense [] By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

This Memorandum represents a significant departure (no pun intended) from the bipartisan support for overhauling the federal criminal justice system that had been intensifying in Congress over the last few years.  It also reflects President Trump’s campaign promise to get tough on crime.  The general targets of the new policy include narcotics and weapons offenses, and gang violence.

The problem with this Memorandum is that it also reflects a reversal of some of the more intelligent decisions made during the Obama administration concerning the federal criminal justice system, specifically, the treatment of low-level, non-violent drug offenders.  For example, former Attorney General Eric Holder instructed federal prosecutors to consider the unique facts and circumstances of a particular case, and to exercise discretion in charging narcotics offenses.  Significantly, in narcotics cases involving non-violent defendants with minimal criminal histories and no connection to organized crime, Holder instructed US Attorneys to omit information concerning drug quantities from charging documents, thereby avoiding the automatic trigger of harsh penalties.  Mr. Sessions’ Memorandum references Mr. Holder’s prior instructions in a footnote, and rescinds them. Continue reading ›

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The New Jersey Supreme Court decided State v. Joe on March 7, 2017.  The case is significant because it relates to the issue of jail credit, which is an important issue in any case where the sentence includes the imposition of a custodial term.

Briefly, the two types of credit that arise most frequently in criminal cases are jail credit and gap credit.  By way of example, a defendant who has a single set of charges that are brought in a single indictment will be entitled to credit for any time spent in custody on those charges while the case is being resolved.  This type of credit is generally referred to as jail credit.  If the defendant is ultimately sentenced to a custodial term of five years with a three-year parole disqualifier, the jail credit will count against the three years, and the defendant will become parole eligible that much sooner.  Jail credit is not to be confused with gap credit.  Gap credit results when a defendant who has already been sentenced to a custodial term is subsequently sentenced again for different offenses committed before the earlier sentence.  Here, the defendant receives credit at the second sentence for the portion of the term of imprisonment already served on the prior sentence.  Whereas jail credit goes against the “bottom number” or parole ineligibility period, gap credit goes against the “top” or outside number.  Jail credit is generally viewed as more valuable because it effectively brings a defendant closer to parole.  (Anyone who seems confused by this brief explanation should not feel bad – credits are one of the most confusing subjects in New Jersey criminal procedure.)

In Joe, the defendant was arrested for drug offenses, but fled New Jersey.  The court issued a bench warrant for his arrest.  Joe was later arrested and charged with other offenses in New York State, and remained in custody on the New York charges from his arrest through sentencing, which was on February 13, 2012.  New Jersey filed an interstate detainer with New York on August 12, 2011, but Joe was not transferred to New Jersey until he was sentenced on the New York charges.  Joe resolved his New Jersey case by way of plea, and then requested jail credit for the time spent in pre-sentence custody in New York.  The sentencing court denied this request. Continue reading ›

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Many defendants focus exclusively on only one issue in their case – Am I going to jail?  If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail).  What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.

Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time.  These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life.  A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.

Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport.  She was coming from Montego Bay, Jamaica.  In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases.  Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000.  Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs.  The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute.  Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months. Continue reading ›

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We have written before about federal sentencing issues.  A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.

By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission.  The concept underlying the advisory guidelines is relatively simple.  They are designed to promote uniformity in sentencing.  Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence.  In this respect, the guidelines restrict the discretion of the sentencing judge.

The central role of the advisory guidelines in federal sentencing cannot be overstated.  As a general matter, current law does not require  judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”.  There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list.  However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue.  This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced.  (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for.  They are not easily obtained, and are not available in every case.) Continue reading ›

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One of the many defendants I have represented in federal district court in New Jersey resolved his case by pleading guilty to certain offenses that typically call for the imposition of a prison sentence.  After long and difficult negotiations with the US Attorney’s Office, and in light of other facts and circumstances unique to that case, I successfully persuaded the Government to recommend a sharply reduced sentence.  Had the court adopted the Government’s recommendation, my client would have received non-custodial probation.

I participated in a chambers conference with the judge and the US Attorney at a hearing prior to the sentencing date.  During this conference, which was off the record, the judge stated that they “always” place defendants like my client in jail.  The judge said this before reading a pre-sentence investigation report (one had yet to be prepared), a sentencing memorandum from either attorney (also not prepared at this stage), or the Government’s formal request for a reduced sentence (same).  Neither had the judge seen correspondence from friends or family members, or heard oral argument in connection with sentencing.  I foolishly believed that the judge would actually do their job, consider all of this material when it had been properly presented, and probably see things differently once a full record had been made.

Foolish was right – even on a full record consisting of all of the foregoing items, this judge still sentenced my client to a (brief) custodial term, and then denied my motion for reconsideration.  In other words, this judge did what they “always” did in this type of case, regardless of what was in the record.  Ultimately, making a full record turned out to be a total waste of time and effort.  The judge could not have cared less about the unique facts and circumstances of this case or any of the submissions, but rather focused solely on their past practices in what they viewed as similar cases with absolutely no regard for anything else.  In my mind, this was as astonishing example of thoughtless, cookie-cutter justice at its worst. Continue reading ›

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John Mahoney shot and killed his father.  He was subsequently indicted for first-degree murder, weapons offenses and hindering apprehension, and the case proceeded to trial.  His defense was battered child syndrome – his actions toward his father were motivated by the latter’s physical and emotional abuse.  The jury convicted him of, among other things, first-degree aggravated manslaughter.

During deliberations, the jury sent the judge an unsolicited note saying, in part, that Mahoney should have significant therapy.  Shortly after the verdict, a juror wrote to Mahoney saying that he should have a second chance in life.  Mahoney responded, and the juror wrote him another letter saying that she struggled emotionally about the facts of the case.  This juror then wrote a letter to the judge that revealed the mental impressions of the jury, and stated further that this was a complicated and emotionally difficult case.  The juror asked the judge to place Mahoney on probation and require him to undergo extensive mental health therapy.

A second juror also wrote to Mahoney, the judge and defense counsel.  This letter also revealed the jury’s mental impressions, as well as that juror’s own issues with the case.  This juror apparently spoke to the other juror that wrote to Mahoney, and stated that s/he planned to contact defense counsel and write to the judge.  Significantly, the second juror stated that the jury was conflicted in convicting Mahoney of aggravated manslaughter.  Like the first juror, this juror believed that Mahoney needed treatment as opposed to punishment.  S/he also wrote to defense counsel on behalf of several jurors.  This letter revealed the jury’s deliberative mental impressions, and indicated that the jury wanted Mahoney to receive treatment rather than punishment. Continue reading ›

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The NJ Appellate Division recently decided the companion cases of State v. Fitzpatrick and State v. Brister.  These cases focus primarily on the statutory bar date prior to which the State must appeal from a trial court’s denial of the imposition of a Drug Offender Restraining Order, or DORO.  Although the discussion concerning this issue is important, the decision raises another problem which can potentially arise at any sentencing hearing that should be met with a defense objection.

Both defendants pleaded guilty to third degree drug charges and were sentenced to special terms of drug court probation in lieu of custodial terms in State prison.  At sentencing, the  prosecutor – for the very first time in either case – informed the Court and defense counsel that it would seek DOROs against each defendant.  Defense counsel objected to the DOROs because they were not mentioned at the time of the plea.  On December 2, 2014, after briefing and further argument, the trial court denied the imposition of a DORO in either case and sentenced each defendant to drug court probation as contemplated by the plea agreements.  On December 9, 2014, the trial court entered Orders granting the defense motions to preclude in imposition of DOROs in either case.  The State filed Notices of Appeal as to the denial of the DOROs on December 23, 2014.

The Appellate Division began its discussion by recalling that the purpose of a DORO is to prevent drug offenders from returning to the same location(s) where they previously traded in illegal drugs.  The Court also noted that because the State’s efforts to appeal a criminal sentence raise constitutional/double jeopardy concerns, the State can pursue such an appeal only when the sentence is illegal, or when it is expressly authorized by statute.  The DORO statute expressly authorized the State to appeal the denial of a DORO, but required that the Notice of Appeal had to be filed and served within 10 days.  The defendants were sentenced, and the DOROs were originally denied, on December 2, 2014.  The Notices of Appeal were not filed and served until December 23, 2014.  Because the State failed to comply with the statutory 10-day deadline, the Court dismissed the State’s appeals for lack of jurisdiction. Continue reading ›

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