What is a sentencing hearing?
Most cases are resolved one of three ways: they either go to trial, they get dismissed, or they are worked out with a negotiated plea agreement with the state attorney’s office. A sentencing hearing comes up in those scenarios where a client doesn’t want to go to trial, the state is not willing to dismiss the case, and the client does not want to accept the plea offer that’s been made by the state attorney. A sentencing hearing is an option where you allow the judge to decide your sentence. Now, obviously there’s some inherent risks in that.
If you’re not able to work out a negotiated plea agreement with the state attorney, a lot of our decision is going to come down to where you fall on the sentencing guidelines. If you score out to a mandatory sentence, which is anything more than 44 points, the judge is going to start out with the presumption that he has to send you to prison. So in that scenario, a sentencing hearing is risky, because he is going to be inclined to think he has to give you a prison sentence.
One option to avoid the judge having to give you the mandatory prison sentence is to argue for what’s called a “downward departure.” A downward departure is where the judge is allowed, legally, to go below the sentencing guidelines and not impose the sentence that you otherwise would have to serve. There’s a two part process to securing a downward departure for our clients. The first step is to show the judge, legally, that he has the legal authority to issue the downward departure, because there are certain criteria that have to be met. The second part of the analysis is that we have to convince the judge that your case is one that’s appropriate. In other words, we have to convince him to want to do this for you, even though he doesn’t have to. It’s completely within the judge’s discretion whether or not to issue a downward departure. So that’s one factor that goes into our thinking on whether or not to recommend a sentencing hearing.
Another factor we’ll consider is something called a “capped plea.” A capped plea is where we weren’t able to negotiate a sentence with the prosecutor, but the prosecutor agrees that the sentence won’t be any more than a certain amount, which gives us the opportunity to go in knowing that we’ve limited the potential exposure at the top end, while also preserving the ability to argue for something less with the judge, so it’s kind of like having our cake and eating it too.
Another option to consider is something called a “suspended sentence.” A suspended sentence is a sentence that the judge imposes on you, but doesn’t require that you serve it immediately. So, for example, the judge might say “I sentence you to five years probation with five years in prison suspended.” Now what that means is the judge is giving you the opportunity to stay out of prison, go on probation, complete the requirements that he gives you, and if you do that, you won’t ever have to serve any time in prison. But if you do violate your probation or don’t do what you’re supposed to do, that sentence is already hanging over your head and it’s very easy for the judge to simply say “I’m now imposing the previously announced sentence that was suspended.” So that can be a risky move, but sometimes it may be the only option available to avoid going to prison now.
Hopefully what this does is that it illustrates that there are several things that we look at, all with an attempt to keep a felony conviction off your record and to keep you out of jail. So we look at things like preparing the case for trial, negotiating with the prosecutor, seeking to get charges dismissed, and then a sentencing hearing is just another tool that we use to accomplish our goals. So, call Flaherty Defense Firm and get the help that you need.