Departing from the sentencing guidelines range.
The sentencing judge may impose a sentence below or above the sentencing guidelines range by setting forth in writing reasons for departing from that range on a sentencing statement, giving the "facts, circumstances, evidence, opinions, and any other matters considered" (G.L. c. 211E, § 3(h)). A sentencing judge may also depart from the guidelines by imposing a sentence of incarceration where the guidelines prescribe intermediate sanctions only (green zone), or by imposing a sentence of intermediate sanctions where the guidelines prescribe incarceration only (red zone). Any departure must be based on a finding that one or more mitigating or aggravating circumstances exist.
In imposing a sentence of incarceration that departs from the guidelines, the Not Less Than sentence shall automatically be set at two-thirds of the Not More Than sentence.
The commission established non-exclusive aggravating and mitigating circumstances to guide the sentencing judge (see Attachment D). The presence of any such circumstance may warrant departure in the discretion of the sentencing judge. In determining mitigation or aggravation, the sentencing judge shall consider:
- any evidence received during the proceedings;
- any pre-sentence report, when the judge requests one; and
- any other information that the judge deems credible.
The sentencing judge is not required to conduct an evidentiary hearing in determining aggravating or mitigating factors.
Illustration 9: A 65 year old defendant has been convicted of Larceny ($10,000 to $50,000), a level 4 offense. The defendant has one prior conviction, incurred at age 18, for Involuntary Manslaughter (level 6), placing the defendant in criminal history category C (Serious Record). The grid cell which represents the intersection of level 4 and category C presumes incarceration and has a range of 20 to 30 months. Prior to the defendant’s conviction on the Larceny charge, full restitution to the victim was made.
Citing the age of the defendant’s prior criminal record and his act of restitution, the sentencing judge has decided to depart below the prescribed sentencing guidelines range and sentence the defendant to 60 days in the house of correction. The Not Less Than sentence is automatically set at 40 days, two-thirds of the Not More Than sentence.
Statutory minimum terms of incarceration
The criminal penalty provisions of some offenses do not require incarceration, but specify the minimum term of incarceration when incarceration is imposed. For these crimes it is not a departure for a judge to impose a sentence within the applicable sentencing guidelines range, including intermediate sanctions, even though the sentence may be below the statutory minimum term. At the same time, if the statutory minimum term exceeds the sentencing guidelines range, the imposition of the statutory minimum is not a departure.
illustration 10: A defendant with no prior record has been convicted of Home Invasion, a level 8 offense. The applicable sentencing guidelines range for a defendant in criminal history category A (No/Minor Record) convicted of a level 8 offense is 96 to 144 months. However, GL c. 265, § 18C directs the sentencing judge to impose a minimum sentence of 20 years in state prison if a sentence of incarceration is imposed.
Under these circumstances the guidelines permit a judge to sentence the defendant to a Not More Than (NMT) term of incarceration in accordance with the prescribed sentencing guidelines range of 96 to 144 months, even though the sentence would be below the statutory minimum. Such a sentence would not constitute a departure.
The imposition of the statutory minimum term would also not constitute a departure. The guidelines permit the judge to sentence the defendant to the statutory minimum 20 years in state prison even though the sentence would be above the prescribed sentencing guidelines range.
Illustration 11: A defendant with no prior record has been convicted of Use of Motor Vehicle Without Authority. The applicable sentencing guidelines range for a defendant in criminal history category A (No/Minor Record) convicted of a level 2 offense prescribes intermediate sanctions levels I through III. However, GL c. 90 § 24 allows a judge to impose a term of imprisonment of no less than 30 days.
Under these circumstances the guidelines permit a judge to sentence the defendant in accordance with the prescribed sentencing guidelines range of intermediate sanctions levels I through III, or in the alternative, to the minimum 30 days in the house of correction. Such sentences would not constitute a departure.