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Sentencing Guidelines: Step 4, Chapter 4

Determine Criminal History Category

Table of Contents

Determine Criminal History Category

Based on the number and seriousness of prior convictions, place individuals to be sentenced in one of five criminal history categories: No/Minor Record, Moderate Record, Serious Record, Violent or Repetitive Record, or Serious Violent Record.

This is an incident-based approach for determining placement within a criminal history category. This means that multiple prior convictions with the same arraignment date are presumed to have arisen from the same criminal conduct, and are to be counted as one prior conviction based on the most serious offense of conviction. The presumption that several offenses arraigned on the same date arose from the same criminal conduct is rebuttable.

A conviction is defined as any final disposition requiring a finding of guilt. Examples of final dispositions considered to be convictions include: Guilty Filed; Guilty; Probation; Fine; House of Correction Commitment; State Prison Commitment; Split Sentence; and Suspended Sentence. Examples of final dispositions not considered to be convictions include: Dismissed; Continued Without a Finding (even with probation); Filed (absent a finding of guilt); and Not Guilty.

Prior convictions should only include those offenses which reached final disposition before the disposition date of the offense for which the defendant is being sentenced. The reader may wish to consider that deep police penetration into minority and/or poor neighborhoods may increase an individual’s criminal history for certain offenses. This may be the basis for a downward departure.

To place a defendant into a criminal history group:

  1. Group defendant’s prior convictions by arraignment date into criminal incidents;
  2. Determine if a Gap/Decay provision applies;
  3. Using the Master Crime List, assign an offense seriousness level to each criminal incident based on the most serious offense of conviction;
  4. Record the number of criminal incidents at offense seriousness level 1, level 2, level 3, … level 9 and;.
  5. Using the criminal history definitions, assign the defendant to the appropriate criminal history category.

Considerations

Adult Gap and Decay Provisions

When calculating a defendant’s criminal history for purposes of the guidelines, a period of 8 consecutive years after arraignment date including juvenile adjudications, shall be deemed to have erased the defendant’s criminal history prior to that date, subject to the following exception: all prior convictions at offense seriousness levels 6 and above shall be counted for criminal history placement on the sentencing grid where the current governing offense is at offense level 6 or above.

If a person was in correctional custody, or under probation or parole supervision, excluding continuance without a finding supervision during a decay period, the judge may depart on that basis.

The judge should consider whether a shorter or longer decay period and/or departure is warranted based on the nature of the instant offense.

Juvenile Gap and Decay Provisions

No prior adjudication of delinquency for a misdemeanor shall be counted for criminal history placement on the sentencing grid. Prior adjudications of delinquency for a felony shall be counted for the criminal history placement on the sentencing grid but shall be reduced by two levels.

When calculating a defendant’s criminal history for purposes of the guidelines, a period of 8 consecutive years after arraignment date including juvenile adjudications, shall be deemed to have erased the defendant’s criminal history prior to that date, subject to the following exception: all prior convictions at offense seriousness levels 6 and above shall be counted for criminal history placement on the sentencing grid where the current governing offense is at offense level 6 or above.

If a person was in correctional custody, or under probation or parole supervision, excluding continuance without a finding supervision during a decay period, the judge may depart on that basis.

The judge should consider whether a shorter or longer decay period and/or departure is warranted based on the nature of the instant offense.

A youthful offender adjudication shall be treated for the purposes of calculating a defendant’s criminal history score in the same manner as a delinquency adjudication where the juvenile was committed to the Department of Youth Services or received a combination sentence under G.L. c. 119, § 58(b) or (c). A youthful offender adjudication shall be treated for the purposes of calculating a defendant’s criminal history score in the same manner as an adult conviction where the juvenile was sentenced to an adult sentence under G.L. c. 119, § 58(a).

Prior Convictions: Staircasing

Where a prior conviction is for a crime which has been staircased, unless one or more of the staircasing factors are ascertainable, the conviction should be assigned the lowest seriousness level for that offense.

Illustration 3: A defendant has a prior conviction for Assault and Battery with a Dangerous Weapon, though the degree of injury to the victim is unknown. This conviction should be placed at offense seriousness level 3, the lowest of the three seriousness levels to which a conviction for Assault and Battery with a Dangerous Weapon may be assigned.

Prior Convictions: Multiple Incidents/Single Arraignment Date

The presumption that several offenses arraigned on the same date arose from the same criminal conduct is rebuttable. Multiple convictions with the same arraignment date may each be counted for purposes of criminal history placement on the sentencing guidelines grid where the court is satisfied that each such conviction represents separate criminal conduct.

Prior Convictions: Single Incident/Multiple Arraignment Dates

Multiple convictions with different arraignment dates may be treated as the same criminal conduct for purposes of criminal history placement on the sentencing guidelines grid where the court is satisfied that such convictions represent the same criminal conduct.

Additional Resources

Figure 2. Criminal History Categories

E

Serious Violent Record
Two or more prior convictions in any combination for offenses in Level 7 through 9

D

Violent or Repetitive Record
Six or more prior convictions in any combination for offenses in Levels 3, 4, 5, or 6; or
Two or more prior convictions in any combination for offenses in Levels 5 or 6; or
One prior conviction for offenses in Levels 7 through 9

C

Serious Record
Three to five prior convictions in any combination for offenses in Levels 3 or 4; or
One prior conviction for offenses in Levels 5 or 6

B

Moderate Record
Six or more prior convictions in any combination for offenses in Levels 1 or 2; or
One or two prior convictions in any combination for offenses in Levels 3 or 4

A

No or Minor Record
One to five prior convictions in any combination for offenses in Levels 1 or 2; or
No prior convictions of any kind

Additional Resources

Contact

Address

John Adams Courthouse
One Pemberton Square - G300
Boston, MA 02108
Last updated: April 26, 2019
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