Sentencing for offenses with mandatory minimum sentences of incarceration.

In general, sentences that depart from mandatory minimum sentences of incarceration prescribed by statute are prohibited by the guidelines. Offenses affected by mandatory minimum terms are indicated by a notation on the Master Crime List.

OUI and Firearms
For OUI and firearm offenses punishable by mandatory minimum sentences, the commission adopted as its sentencing guidelines the current statutory penalty provisions associated with these offenses (see Attachment E), allowing for no departures from the minimum term of incarceration, except for OUI offenses:

  • pursuant to G.L. c. 90 § 24, a judge may sentence a second OUI offender to a residential alcohol treatment program of not less than 14 days as a condition of probation as an alternative to the mandatory sentence under certain circumstances; and
  • a judge may sentence a defendant, who has been previously convicted of a violation of GL c. 90 § 24 (1)(a)(1) or c. 90B § 8 (a)(1)(A) or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation not more than two times within ten years preceding the date of the commission of the operating under the influence offense for which he has been convicted, to a long term residential substance abuse treatment program, approved by the office of community corrections, as established in GL c. 211F § 2(a), in lieu of imposing the mandatory minimum sentence.

Although neither OUI or firearm offenses appear on the sentencing guidelines grid, all have been assigned an offense seriousness level and placed on the Master Crime List for purposes of determining a defendant’s criminal history only.

Illustration 12: A defendant has been convicted of Possession of a Sawed-Off Shotgun, a felony requiring a mandatory minimum sentence to incarceration of 1 year.

In determining the sentence, the judge must abide by the statutory penalty provisions set forth in GL c. 269 § 10(c). Under no circumstances can the judge depart from the statutory provisions and impose a sentence below the mandatory minimum.

The judge’s discretion is limited only by the required mandatory minimum term and the statutory maximum penalty. Accordingly, the above defendant could be sentenced to 1 year up to life.

Other Non-Drug Offenses
For all other non-drug offenses punishable by mandatory sentences of incarceration, the commission retained the mandatory minimum term as prescribed by statute. Unlike OUI and firearm offenses, these crimes have been assigned an offense seriousness level for purposes of placement on the sentencing guidelines grid.

Though in some instances the applicable sentencing guidelines range may encompass a sentence which would be below the mandatory minimum term prescribed by statute, such a sentence is prohibited by the guidelines.

Illustration 13: A defendant has been convicted of Stalking In Violation of a Restraining Order, a level 5 offense. Based on the defendant's prior record of convictions, the defendant's criminal history group is determined to be category A (No/Minor Record). The grid cell which represents the intersection of level 5 and category A has a range of 12 to 36 months and allows for intermediate sanctions. The judge in this instance is prohibited from imposing a sentence which would result in a term of incarceration of less than one year, the mandatory minimum term prescribed by statute, even though such a sentence would be consistent with the sentencing guidelines range.

In contrast, where the applicable sentencing guidelines range requires a sentence of incarceration which exceeds the mandatory minimum term, it would be considered a departure for a judge to sentence below the range, even when sentencing the defendant to the mandatory minimum.

Illustration 14: A defendant is convicted of Stalking - Subsequent Offense, a level 5 offense with a mandatory minimum term of two years and statutory maximum sentence of 10 years. Based on the defendant's prior record of convictions, the defendant's criminal history group is determined to be category E (Serious Violent). The grid cell which represents the intersection of level 5 and category E has a range of 60 to 90 months. The judge in this instance cannot impose a sentence below the sentencing guidelines range without writing a departure, even if the sentence the judge wishes to impose is consistent with the two year mandatory minimum term prescribed by statute. Furthermore, under no circumstances can the judge impose a sentence that would result in a term of incarceration of less than two years.

Drug Offenses
Under limited circumstances a sentencing judge may depart from a mandatory minimum sentence of incarceration as prescribed in GL c. 94C, and impose a sentence in accordance with the sentencing guidelines range. For this reason drug offenses have been placed on the Master Crime List and assigned an offense seriousness level.

The departure standard for going below a mandatory minimum term is more stringent than the general standard for departure from a sentencing guidelines range. Specifically, to make such a departure:

  • the defendant may not have a prior conviction for a drug trafficking offense at seriousness levels 7 or 8; and
  • the judge must set forth in writing on a sentencing statement the reasons for departing from the mandatory minimum sentence of incarceration, giving the facts, circumstances, evidence, opinions, and any other matters considered.

Illustration 15: A 17 year old defendant with no prior record has been convicted of Trafficking in Marijuana (100 to 2,000 lb.), an offense which carries a mandatory minimum sentence of incarceration of three years. It is revealed at trial that the defendant played a minor role in the criminal conduct and was suffering from a mental disorder at the time of the commission of the offense.

In this instance because the defendant has no prior conviction for a level 7 or level 8 drug trafficking offense, the judge has the discretion, upon finding one or more mitigating factors, of departing from the mandatory minimum sentence and sentencing the defendant in accordance with the guidelines. Factors that may warrant mitigation in the above example include the defendant’s age, role, and/or mental health at the time of the offense.

Under no circumstances, however, is the judge obligated to depart from the mandatory minimum sentence of incarceration.

In addition, the commission decided to allow limited departures below the sentencing guidelines range in exceptional circumstances, where the defendant does not have a serious record and where there is a substantial mitigating factor.

Specifically, a judge may impose a sentence below the sentencing guidelines range in this context, provided that:

  • the criminal history of the defendant falls in category A or B; and
  • there is a substantial mitigating factor in addition to the mitigating circumstance or circumstances that justified the departure below the mandatory minimum sentence, that should result in a sentence below the sentencing guidelines range.

Illustration 16: A 19 year old defendant with no prior record has been convicted of Trafficking in Heroin (28 to 100 g.), an offense which carries a mandatory minimum sentence of incarceration of seven years. A pre-sentence report indicates the defendant was suffering from severe drug addiction at the time of the offense but has since completed a long-term drug treatment program.

Based on the defendant’s youthfulness at the time of the offense, the sentencing judge has decided a sentence below the mandatory minimum sentence is warranted.

In this example, because the defendant falls into either category A or B, the judge may make further written findings that a substantial mitigating factor exists in addition to the mitigating circumstance (i.e., defendant’s age) and should result in a departure below the sentencing guidelines range. Factors that may warrant departure below the sentencing guidelines range, in this example, may include the defendant’s physical condition at the time of the offense and/or subsequent participation in a long-term drug treatment program.

Under no circumstances, however, is the judge required to depart below the mandatory minimum sentence or sentencing guidelines range.

In imposing a sentence of incarceration that departs from the sentencing guidelines range, the Not Less Than sentence shall be automatically fixed at two-thirds of the Not More Than sentence.

Therefore, if the judge departs below the mandatory minimum sentence and imposes a sentence within or below the sentencing guidelines range, the minimum sentence shall be two-thirds of the maximum sentence, and the defendant shall be eligible for parole at the minimum sentence. Similarly, if the judge departs below the mandatory minimum sentence and imposes a sentence within or below the sentencing guidelines range, the defendant shall be eligible for earned good time, work release, and other pre-release programs deemed appropriate by the correctional authority with custody responsibility, notwithstanding the provisions of GL c. 94C § 32 (H).

On the other hand, if the judge does not depart from the mandatory minimum sentence and imposes a sentence pursuant to the mandatory sentencing provisions, the minimum sentence need not be two-thirds of the maximum, and the defendant shall not be eligible for parole, earned good time, work release, or other prerelease programs until he has served the mandatory minimum sentence.

The sentencing judge is not required to conduct an evidentiary hearing in determining mitigating factors when departing from a mandatory minimum sentence of incarceration.


Attachments

Attachment A pdf format of Attachment A - Level of Injury Scale
Attachment B pdf format of Attachment B - Mini Master Crime List
Attachment C pdf format of Attachment C - Sentencing Chart
Attachment D pdf format of Attachment D - Mitigating and Aggravating Factors
Attachment E pdf format of Attachment E - Mandatory Offenses
Guideline Sentence Form pdf format of sentform.pdf
Criminal History Groups
Sentencing Guidelines Grid