Sentencing

For an overview of sentencing:

• watch Greg Scholl’s two-part presentation on felony sentencing in Oregon
• read Ryan Scott’s articles on Merger, Separate Criminal Episodes and other topics.

Sentencing Checklist

Step I:  What’s the worst case scenario?

1. Are there any felony sentencing laws that take the case out of the felony sentencing guidelines?

• Measure 11
• RePO/M57
• Denny Smith
• Gun Minimum
• Jessica’s Law
• Dangerous Offender

2.  If none of the above apply, what will the DA argue is the guidelines sentence for the most serious felony?

• Criminal history scoring
• Crime seriousness level

3.  Is defendant eligible for an upward departure?

4.  Can defendant be sentenced for multiple counts?

• How many criminal episodes will the DA argue there are?
• Do any counts have to merge with each other?
• Can the counts be run consecutive?
• Can the defendant be reconstituted up the guidelines grid and do any counts have to shift to I?
• Does the 200% or 400% rule cap the defendant’s sentence?

5.  Is the sentencing back on remand?

Step II:  What’s the best case scenario?

1.  Is the defendant eligible for diversion or misdemeanor sentencing?

2. If one of the special increased sentencing laws apply is there an escape clause available?

3.  What will you argue is the guidelines sentence?

4.  Is defendant eligible for a downward departure?

5a. What is the smallest number of criminal episodes that cover all the counts?

5b.  Can any counts merge?

5c.  What is the likelihood of everything being run concurrent?

5d.  Do any of the remediating guidelines rules apply, like shift to I, 200%, or 400% rule?

6.  For how much of a reduction in time is defendant eligible?

• Good time
• Credit for Time Served
• AIP

7.  Do you have a proportionality argument?

Step III:  What are the other consequences of conviction?

1. What sort of probation/PPS term is defendant facing?

• Length
• Terms and Conditions
• Transfers of Probation/Parole
• Violation and Revocation
• Parole Board

2.  What’s it going to cost?

• Fines
• Restitution
• Loss of Bail Money
• Forfeiture

3.  Will the defendant have to register as a sex offender?

4.  Are there any immigration consequences of conviction?

5.  Will defendant’s drivers license be affected?

6.  Are there any Federal benefits that might be lost?

• Housing
• Social Security
• Student Loans

7.  Is this defendant’s first felony conviction?

8.  Is/Are the conviction(s) expungeable?  If so, when?

9.  What is the stigmatizing effect of the conviction in terms of ability to obtain employment or housing?

10.  Will the defendant’s Constitutional rights be affected?

• the right to vote
• the right to serve on a jury
• the right to hold public office
• the right to own firearms
• the right to possess other weapons

11.  Has the defendant positioned himself for repeat offender sentencing upon further convictions?

12.  Will the defendant’s family rights be affected?

• adoption
• custody
• termination of parental rights

13.  Will the convictions trigger the potential application of any new crimes?

• guns
• weapons
• failure to register