Sentencing Guidelines for Mandatory Prison Sentences and Three-Stikes

Sat, 18 Apr 2009 10:24:58 EST

Many defendants are concerned that every state has a “three-strike” law such asCalifornia promulgates. Many defendantsbelieve that all states have the same exact law. I want to examine Illinois and Ohio, andexamine the way in which the Midwest differs from the model in Californiaregarding 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 Courtuses the information provided from the facts articulating regarding the drugoffender law in Ohio. For a possession offense, as separated from intent todeliver offense a person may be sentenced to an intervention under Baldwin'sOhio Revised Statutes Section 2951.041, which states in part,

"2951.041 Drug treatment in lieu of or during term ofconviction (later effective date) (A)(1) If an offender is chargedwith a criminal offense and the court has reason to believe that drug oralcohol usage by the offender was a factor leading to the offender's criminalbehavior, the court may accept, prior to the entry of a guilty plea, theoffender's request for intervention in lieu of conviction. The request shallinclude a waiver of the defendant's right to a speedy trial, the preliminaryhearing, the time period within which the grand jury may consider an indictmentagainst the offender, and arraignment, unless the hearing, indictment, orarraignment has already occurred. The court may reject an offender's requestwithout a hearing. If the court elects to consider an offender's request, thecourt shall conduct a hearing to determine whether the offender is eligibleunder this section for intervention in lieu of conviction and shall stay allcriminal proceedings pending the outcome of the hearing. If the court schedulesa hearing, the court shall order an assessment of the offender for the purposeof determining the offender's eligibility for intervention in lieu ofconviction and recommending an appropriate intervention plan.

(2)The victim notification provisions of division (C) of section 2930.08 of theRevised 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 courtfinds all of the following:

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

(2)The offense is not a felony of the first, second, or third degree, is not anoffense of violence, is not a violation of division (A)(1) or (2) of section 2903.06 of the RevisedCode, is not a violation of division (A)(1) of section 2903.08 ofthe Revised Code, is not a violation of division (A) of section 4511.19 of theRevised Code or a municipal ordinance that is substantially similarto that division, and is not an offense for which a sentencing court isrequired to impose a mandatory prison term, a mandatory term of localincarceration, 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 aviolation of that section that is a felony of the fourth degree and theprosecutor in the case has recommended that the offender be classified as beingeligible for intervention in lieu of conviction under this section.

(5)The offender has been assessed by an appropriately licensed provider, certifiedfacility, or licensed and credentialed professional, including, but not limitedto, a program licensed by the department of alcohol and drug addiction servicespursuant 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 alicensed physician, psychiatrist, psychologist, independent social worker,professional counselor, or chemical dependency counselor for the purpose ofdetermining the offender's eligibility for intervention in lieu of convictionand recommending an appropriate intervention plan.

(6)The offender's drug or alcohol usage was a factor leading to the criminaloffense with which the offender is charged, intervention in lieu of convictionwould not demean the seriousness of the offense, and intervention wouldsubstantially 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 peaceofficer engaged in the officer's official duties at the time of the allegedoffense.

(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 theoffender previously has not been treated for drug abuse.

(9) theoffender is willing to comply with all terms and conditions imposed by thecourt 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 corruptanother with drugs, then the sentence for prison is mandatory. For example, inOhio Statutes, Section 295.02, the charge is corrupting another with drugs. Inthat statute, there is a mandatory prison term , "the court shall imposeas a mandatory prison term one of the prison terms prescribed for a felony ofthe first degree." (West Publishing, 2009). On very good example of theway 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 sentencingoptions. Often, the Court will move towards the intervention statute as in thiscase. Even if the Defendant has a potential assault charge, it does notpreclude the Defendant from still having the opportunity for intervention." Defendant's ineligibility for intervention on assault counts ofindictment did not automatically preclude his eligibility on count ofaggravated possession of drugs; statute allowing trialcourt to grant offender's request for rehabilitative drug intervention instead of conviction contained no expressprohibition against granting intervention to offenderwho was eligible on one count of indictment but not on another count thatconstituted a different offense, and statute contained no reference to multipleoffenses." Id. at 641.

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

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

§33B-1. (a) Every person who has been twice convicted in any state or federalcourt of an offense that contains the same elements as an offense nowclassified in Illinois as a Class X felony, criminal sexual assault, aggravatedkidnapping or first degree murder, and is thereafter convicted of a Class Xfelony, criminal sexual assault or first degree murder, committed after the 2prior 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 thepurposes of this Section as one conviction.

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

(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 wasentered on the first conviction, provided, however, that time spent in custodyshall 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 criminalshall be sentenced to life imprisonment." (West, Publishing 2009)

Ohio does not have a statute which specifically states this imposition on thedefendant. 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 fiveyear probation, in which if any offenses are done within the five years, theperson is sentenced to a mandatory sentence term in excess of 15 years.

Therefore, we see that in many circumstances judicialdiscretion is allowed in sentencing guidelines for the States of Illinois andOhio. The recidivist and the drug offender who contributes to the delinquency ofothers are not tolerated. Yet, thedefendant who wants to work towards the rebuilding of his life is welcomed intobeing a part of civilization outside of prison.

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Sentencing Guidelines for Mandatory Prison Sentences and Three-Stikes