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Step
8 - Nature of Science
Sentencing Guidelines
| Determining
the nature of the sentence. |
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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.
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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.
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| Considerations |
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School
/ Park Zone (GL c. 94C, § 32J)
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| 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. |
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Concurrent
Sentences
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| 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. |
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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.
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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.
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Consecutive
Sentences
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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.
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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.
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| 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. |
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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.
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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.
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Financial
Sanctions
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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.
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Split
Sentences
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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.
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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. |
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Return
to Step 7
Continue
to Step 9
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