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Sentencing Guidelines for Mandatory Prison Sentences and Three-Stikes

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Many defendants are concerned that every state has a “three-strike” law such as California promulgates.  Many defendants believe that all states have the same exact law.  I want to examine Illinois and Ohio, and examine the way in which the Midwest differs from the model in California regarding Criminal Sentencing.

Specifically, Illinois and Ohio allow for more judicial discretion than many other states. Many States have moved towards rehabilitative efforts especially for Drug Offenders. For Example, Ohio specifically articulates the “drug treatment in lieu of conviction statute.The Court uses the information provided from the facts articulating regarding the drug offender law in Ohio. For a possession offense, as separated from intent to deliver offense a person may be sentenced to an intervention under Baldwin's Ohio Revised Statutes Section 2951.041, which states in part,

"2951.041 Drug treatment in lieu of or during term of conviction (later effective date) (A)(1) If an offender is charged with a criminal offense and the court has reason to believe that drug or alcohol usage by the offender was a factor leading to the offender's criminal behavior, the court may accept, prior to the entry of a guilty plea, the offender's request for intervention in lieu of conviction. The request shall include a waiver of the defendant's right to a speedy trial, the preliminary hearing, the time period within which the grand jury may consider an indictment against the offender, and arraignment, unless the hearing, indictment, or arraignment has already occurred. The court may reject an offender's request without a hearing. If the court elects to consider an offender's request, the court shall conduct a hearing to determine whether the offender is eligible under this section for intervention in lieu of conviction and shall stay all criminal proceedings pending the outcome of the hearing. If the court schedules a hearing, the court shall order an assessment of the offender for the purpose of determining the offender's eligibility for intervention in lieu of conviction and recommending an appropriate intervention plan.

(2) The victim notification provisions of division (C) of section 2930.08 of the Revised Code apply in relation to any hearing held under division (A) (1) of this section.

(B) An offender is eligible for intervention in lieu of conviction if the court finds all of the following:

(1) The offender previously has not been convicted of or pleaded guilty to a felony, previously has not been through intervention in lieu of conviction under this section or any similar regimen, and is charged with a felony for which the court, upon conviction, would impose sentence under division (B)(2)(b) of section 2929.13 of the Revised Code or with a misdemeanor.

(2) The offense is not a felony of the first, second, or third degree, is not an offense of violence, is not a violation of division (A)(1) or (2) of section 2903.06 of the Revised Code, is not a violation of division (A)(1) of section 2903.08 of the Revised Code, is not a violation of division (A) of section 4511.19 of the Revised Code or a municipal ordinance that is substantially similar to that division, and is not an offense for which a sentencing court is required to impose a mandatory prison term, a mandatory term of local incarceration, or a mandatory term of imprisonment in a jail.

(3) The offender is not charged with a violation of section 2925.02, 2925.03, 2925.04, or 2925.06 of the Revised Code and is not charged with a violation of section 2925.11 of the Revised Code that is a felony of the first, second, or third degree.

(4) The offender is not charged with a violation of section 2925.11 of the Revised Code that is a felony of the fourth degree, or the offender is charged with a violation of that section that is a felony of the fourth degree and the prosecutor in the case has recommended that the offender be classified as being eligible for intervention in lieu of conviction under this section.

(5) The offender has been assessed by an appropriately licensed provider, certified facility, or licensed and credentialed professional, including, but not limited to, a program licensed by the department of alcohol and drug addiction services pursuant to section 3793.11 of the Revised Code, a program certified by that department pursuant to section 3793.06 of the Revised Code, a public or private hospital, the United States department of veterans affairs, another appropriate agency of the government of the United States, or a licensed physician, psychiatrist, psychologist, independent social worker, professional counselor, or chemical dependency counselor for the purpose of determining the offender's eligibility for intervention in lieu of conviction and recommending an appropriate intervention plan.

(6) The offender's drug or alcohol usage was a factor leading to the criminal offense with which the offender is charged, intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.

(7) The alleged victim of the offense was not sixty-five years of age or older, permanently and totally disabled, under thirteen years of age, or a peace officer engaged in the officer's official duties at the time of the alleged offense.

(8) If the offender is charged with a violation of section 2925.24 of the Revised Code, the alleged violation did not result in physical harm to any person, and the offender previously has not been treated for drug abuse.

(9) the offender is willing to comply with all terms and conditions imposed by the court pursuant to division (D) of this section." (West Publishing, 2009).

Like many states, Ohio allows for judicial discretion through drug sentencing. However, if the drug offender has an intent to deliver, or an intent to corrupt another with drugs, then the sentence for prison is mandatory. For example, in Ohio Statutes, Section 295.02, the charge is corrupting another with drugs. In that statute, there is a mandatory prison term , "the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree." (West Publishing, 2009). On very good example of the way in which drug charges are allocated and sentenced. First, in . State v. Stanovich,

173 Ohio App.3d 304, 878 N.E.2d 641, 2007 -Ohio- 4234, Ohio App. 3 Dist., August 20, 2007 (NO. 6-06-10). The Court articulates a variety of sentencing options. Often, the Court will move towards the intervention statute as in this case. Even if the Defendant has a potential assault charge, it does not preclude the Defendant from still having the opportunity for intervention. " Defendant's ineligibility for intervention on assault counts of indictment did not automatically preclude his eligibility on count of aggravated possession of drugs; statute allowing trial court to grant offender's request for rehabilitative drug intervention instead of conviction contained no express prohibition against granting intervention to offender who was eligible on one count of indictment but not on another count that constituted a different offense, and statute contained no reference to multiple offenses." Id. at 641.

Many factors determine the type of sentencing scheme that may create defendant liability. Many States, Including Illinois have constructions, under felony law, in which a person falls into a category that requires mandatory sentencing that puts the defendant in jail for a very long time without parole, if not for life. In Illinois,for example under 720 ILCS 5/33-B-1 articulates a habitual offender sentencing mandatory construct which applies throughout for violent and non-violent offenders. The Illinois statute states in part, "

5/33B-1. Habitual criminals; determination; application of article

§ 33B-1. (a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.

(b) The 2 prior convictions need not have been for the same offense.

(c) Any convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this Section as one conviction.

(d) This Article shall not apply unless each of the following requirements are satisfied:

(1) the third offense was committed after the effective date of this Act;

(2) the third offense was committed within 20 years of the date that judgment was entered on the first conviction, provided, however, that time spent in custody shall not be counted;

(3) the third offense was committed after conviction on the second offense;

(4) the second offense was committed after conviction on the first offense.

(e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment." (West, Publishing 2009)

Ohio does not have a statute which specifically states this imposition on the defendant. In Ohio examine the case of State v. Whitesell,

Not Reported in N.E.2d, 2006 WL 902407, 2006 -Ohio- 1781, Ohio App. 12 Dist., April 10, 2006 (NO. CA2005-04-100), which articulates a requirment for a five year probation, in which if any offenses are done within the five years, the person is sentenced to a mandatory sentence term in excess of 15 years.

Therefore, we see that in many circumstances judicial discretion is allowed in sentencing guidelines for the States of Illinois and Ohio. The recidivist and the drug offender who contributes to the delinquency of others are not tolerated.  Yet, the defendant who wants to work towards the rebuilding of his life is welcomed into being a part of civilization outside of prison.

Craig Cunningham is a published author in the areas of family and criminal law.  In addition to being an attorney, he is also a professor and will educate his clients regarding their case and the law. Clients are able to reach him through several outlets such as, email, cell phone, office line and fax. He will never keep his clients in the dark. With any new developments, he will definitely keep clients informed. For more information please visit at www.cunninghamlaw.cc

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