Determine 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 (school zone), the governing offense will always be associated with the underlying sentence.
Illustration 13: 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 (A&B DW) - 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 underlying sentence should be imposed according to the applicable sentencing guidelines range associated with the Armed Robbery - Display of Gun conviction.
The following sentence would be consistent with 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 inconsistent with the guidelines: 40 to 60 months committed (A&B DW), five years probation on and after (Armed Robbery), guilty filed (Possession Class E).
Considerations
School/park zone (G.L. c. 94C, § 32J)
When sentencing for a violation of G.L. 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 14: 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 4).
The governing offense is Armed Robbery - Display of Gun, the crime with the highest level of seriousness pursuant to the guidelines. Under the guidelines, the underlying sentence would be calculated according to the applicable sentencing guidelines range associated with the Armed Robbery - Display of Gun conviction. A judge who wishes to impose a sentence within the sentencing guideline range may choose to sentence concurrently on the Unarmed Robbery, however, the judge has total discretion to impose a NMT sentence of incarceration of 24 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, the judge would have chosen to act outside the sentencing guideline range if she imposed a concurrent sentence.
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.
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, a judge acts within the sentencing guideline range if she imposes a consecutive sentence from within the sentencing guidelines range of the applicable grid cell.
Illustration 15: 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 advises 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, if she chooses to act within the sentencing guideline range, of 6 months incarceration.
When a defendant is convicted of multiple offenses which arise out of the same criminal conduct and there is a single or no victim, if the judge chooses to sentence within the sentencing guideline range, the judge could impose consecutive sentences, which, in total, do not exceed the upper limit range of the sentencing guidelines range in the grid cell of the governing offense.
Financial Sanctions
The Commission recommends that restitution be considered 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 defendant accountable.
Split Sentences
The split sentence to state prison has been eliminated by the Legislature.
Illustration 16: 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 acting consistent with the guidelines 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.
Additional Resources
Contact for Sentencing Guidelines: Step 10, Chapter 10
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| Last updated: | April 26, 2019 |
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