Notice of Appeal for Review (G.L. c. 211E)
Except as provided in G.L. c. 278, §§ 28A-28C, there shall be no right of appeal of a lawful sentence by either the defendant or the Commonwealth. As to criminal offenses for which the legislature has provided penalties, any penalty within the range provided therefor shall be a lawful sentence. As to those crimes for which no specific penalty is provided by statute, the provisions of G.L. c. 279,§ 5 shall apply, and any such sentence as conforms to the common usage and practice in the commonwealth shall be a lawful sentence. As to plea tender and sentence proposed pursuant to plea agreement which includes both a specific sentence and a charge concession pursuant to Mass. R. Crim. P. 12 (d), if the judge accepts such a plea agreement, nothing herein shall be constructed to permit the imposition of a sentence other than as provided in Mass. R. Crim. P. 12 (d)(6).
In making these Sentencing Guidelines advisory, rather than voluntary, the Commission intends to provide a starting point for consideration, and not a constraint on judicial discretion in fashioning an appropriate sentence. We acknowledge that we have made judgment calls throughout these Guidelines, both in classifying offenses and in setting forth the various sentencing ranges we believe most appropriate, from which to begin consideration of a proper sentence in the specific facts and circumstances of each case. We appreciate that social science, medical science and correctional methodologies will continue to develop, and we acknowledge that what seems most effective today may not appear to be so tomorrow or in the years hence.
Appreciating that, we disclaim any intent to provide for a sentencing appeal, other than the existing appeal procedure contained in G.L. c.278, §§ 28A-28C, on the basis of a sentence which, though outside the Guidelines we have crafted, is within the range allowed by law. As to criminal offenses for which the legislature has provided penalties, we contemplate that any penalty within the range provided shall be a lawful sentence.
As to those crimes for which no specific penalty is provided by statute, the provisions of G.L. c. 279, § 5 shall apply, and any such sentence as conforms to the common usage and practice in the Commonwealth shall be a lawful sentence.
The sentencing judge may impose any lawful sentence, whether within, above or below the guideline range, taking into account all of the factors referenced in these Guidelines, the sentencing best practices of the court, and such other factors as evolving social science may suggest. To the extent that G.L. c. 211E, § 3(h) imposes a duty to memorialize such reasons in writing, such a mandate ought not to apply to these Advisory Guidelines, and the Commission has promulgated these Guidelines disclaiming any intent to require sentencing judges to set forth their reasons in writing. We acknowledge that Best Practices counsel that a sentencing rationale which is clearly explained benefits the parties, the victims, the community and the public.
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|Last updated:||April 26, 2019|