| Sentencing
for offenses with mandatory minimum sentences of incarceration. |
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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. |
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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:
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- 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.
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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.
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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. |
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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.
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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.
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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. |
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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.
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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. |
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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.
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| 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.
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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.
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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. |
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| 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.
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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.
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| 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. |
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| 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). |
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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. |
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The sentencing
judge is not required to conduct an evidentiary hearing in
determining mitigating factors when departing from a mandatory
minimum sentence of incarceration.
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