Determining the nature of the sentence.

When more than one offense arises out of the same criminal conduct, the governing offense is that crime in the highest level of seriousness pursuant to the sentencing guidelines grid. In all but a limited number of circumstances, i.e., violations of G.L. c. 94C, � 32J, the governing offense will always be associated with the base sentence.

Illustration 17: As the result of the same criminal conduct a defendant with no prior record has been convicted of Armed Robbery - Display of Gun (level 7), Assault and Battery With a Dangerous Weapon - Significant Injury (level 6), and Possession of a Controlled Substance - Class E (level 1).

The governing offense is Armed Robbery - Display of Gun, the crime with the highest level of seriousness pursuant to the guidelines. The base sentence must be imposed according to the applicable sentencing guidelines range associated with the Armed Robbery - Display of Gun conviction. Neither of the convictions for Assault and Battery With a Dangerous Weapon - Significant Injury nor for Possession of a Controlled Substance - Class E may serve as the basis for the defendant's sentence.

The following sentence would be permissible under the guidelines: 60 to 90 months committed (Armed Robbery), two years probation on and after (A&B DW), guilty filed (Possession Class E).

In contrast, the following sentence would be impermissible under the guidelines: 40 to 60 months committed (A&B DW), five years probation on and after (Armed Robbery), guilty filed (Possession Class E). In this example, the Assault and Battery With a Dangerous Weapon - Significant Injury has improperly served as the governing offense for the defendant's sentence.

Considerations:


  • School / Park Zone (GL c. 94C, § 32J)

When sentencing for a violation of GL c. 94C, § 32J (school or park zone), a level 4 offense, it is possible for the underlying drug distribution offense to have a lower seriousness ranking (e.g., Distribute Class D - level 2), because the statute requires that the sentence for the school or park zone offense be served consecutive to the sentence for the underlying drug distribution offense. Where this situation arises, the underlying drug distribution offense is to be treated as the governing offense.


  • Concurrent Sentences

When a defendant is convicted of multiple offenses arising out of the same criminal conduct, the judge may impose concurrent sentences. In imposing a concurrent sentence, the judge may base the sentence upon the sentencing guidelines range of the applicable grid cell for that defendant, or impose any sentence below the sentencing guidelines range without it being considered a departure. A concurrent sentence above the sentencing guidelines range in the applicable grid cell would constitute a departure.

When a defendant is convicted of multiple offenses which do not arise out of the same criminal conduct or when a defendant at the time of sentencing is currently serving a sentence for another criminal offense, the judge may impose a concurrent sentence from within the sentencing guidelines range. A concurrent sentence above or below the sentencing guidelines range in the applicable grid cell would constitute a departure

Illustration 18: As the result of the same criminal conduct a defendant with no prior record has been convicted of Armed Robbery - Display of Gun (level 7) and Unarmed Robbery (level 5).

The governing offense is Armed Robbery - Display of Gun, the crime with the highest level of seriousness pursuant to the guidelines. Under guidelines, the base sentence must be imposed according to the applicable sentencing guidelines range associated with the Armed Robbery - Display of Gun conviction. If the judge chooses to sentence concurrently on the Unarmed Robbery, however, the judge has total discretion to impose a NMT sentence of incarceration of 36 months, i.e., the upper limit of the applicable grid cell, or any lesser sentence, including probation. Such a sentence would not constitute a departure because the Unarmed Robbery was part of the same criminal conduct as the Armed Robbery.

In contrast, if the Unarmed Robbery conviction did not arise out of the same criminal conduct as the Armed Robbery, the judge in imposing a concurrent sentence would be required to select a sentence from the applicable sentencing guidelines range for Unarmed Robbery.


  • Consecutive Sentences

In general, when a defendant is being sentenced on multiple convictions arising from the same criminal conduct, the judge may impose consecutive sentences. The defendant’s criminal history may be considered for each consecutive sentence imposed, although it is not required. Where consecutive sentences are imposed for multiple offenses arising from the same criminal conduct, the judge may impose a consecutive sentence within or below the applicable guideline range, including probation. Such a consecutive sentence below the guideline range, including probation, does not constitute a departure.

Illustration 19: As the result of the same criminal conduct, a defendant is convicted of Breaking and Entering - Dwelling (level 4) and Assault (level 2). Based on the defendant’s criminal record, the defendant’s criminal history group is determined to be category B (Moderate Record).

Under the guidelines, the conviction for Breaking and Entering - Dwelling determines the base sentence. In this example, the cell representing the intersection of level 4 and category B allows for incarceration and prescribes a range of 3 to 30 months. It is from within this range the judge selects the Not More Than sentence.

The commission’s consecutive sentencing policy also allows the judge to impose a consecutive sentence for the Assault conviction. The cell representing the intersection of level 2 and category B allows for a maximum sentence of 6 months incarceration. In imposing a consecutive sentence for the Assault conviction, the judge can impose a sentence of probation or up to 6 months incarceration without writing a departure. Any sentence above 6 months incarceration, however, would require a departure.

Consecutive sentences to state prison are subject to the following limitation. The total of consecutive sentences to the state prison may be combined up to twice the upper limit of the sentencing guidelines range in the grid cell of the governing offense. Where the total of the combined sentences exceeds twice the upper limit, it shall be considered a departure from the guidelines. The existence of multiple victims is recognized as an aggravating circumstance which may justify such a departure.

Illustration 20: As the result of the same criminal conduct, a defendant is convicted of three counts of Rape, a level 7 offense. Based on the defendant's criminal record, the defendant's criminal history group is determined to be category A (No/Minor Record). Under the commission's consecutive sentencing policy, a judge would be permitted to give the defendant an aggregate sentence of 180 months, twice the upper limit of the applicable sentencing guidelines range, without writing a departure. The imposition of consecutive sentences resulting in an aggregate term of 181 months or longer, however, would require written reasons.

In the above example, the fact that the rape convictions involved three different victims would justify a departure and the imposition of consecutive sentences totaling more than 180 months.

When a defendant is convicted of multiple offenses which do not arise out of the same criminal conduct or when a defendant at the time of sentencing is currently serving a sentence for another criminal offense, the judge may impose a consecutive sentence from within the sentencing guidelines range of the applicable grid cell. The limitation on consecutive sentences to state prison does not apply to multiple offenses which do not arise out of the same criminal conduct.


  • Financial Sanctions

The commission recommends that restitution be imposed in every appropriate case. The commission recognizes the importance of restitution to the victim as a means of restoring the victim and of holding the offender accountable. Financial sanctions should be ordered by the court at any level and without regard to whether or not the offender is incarcerated. The guidelines are not intended to supersede the court’s ability to issue fines, fees, or restitution when appropriate.


  • Split Sentences

The sentencing commission has recommended that the split sentence to the house of correction be retained. The split sentence to state prison, in contrast, has been eliminated.

Illustration 21: A defendant is convicted of a single count of Indecent Assault and Battery, a level 4 offense. Based on the defendant’s criminal record, the defendant’s criminal history group is considered to be group B (Moderate Record).

Under the commission’s split sentence policy, a judge would be permitted to give the defendant a sentence of 20 to 30 months in the house of correction with six months to serve, the remainder suspended, and three years probation subject to intermediate sanctions.


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