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Criminal Sentencing in Illinois

Criminal Sentencing in Illinois . Stephen L. Richards Deputy Defender OSAD/DPTA January 11, 2008. Range ? Probation? Consecutive? Extendable? Good-time credits? Treatment? Boot camp?. Sentencing Checklist.

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Criminal Sentencing in Illinois

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  1. Criminal Sentencing in Illinois Stephen L. Richards Deputy Defender OSAD/DPTA January 11, 2008

  2. Range ? • Probation? • Consecutive? • Extendable? • Good-time credits? • Treatment? • Boot camp? Sentencing Checklist

  3. “A defendant may not challenge a penalty under the proportionate penalties clause by comparing it to the penalty for an offense with different elements.” • People v. Sharpe, 216 Ill. 2d 481, 839 N.E.2d 492 (2005) Poked in the Eye with A Sharpe Stick

  4. People v. Walden, 199 Ill. 2d 392 (firearm add-on for armed robbery) • People v. Moss, 206 Ill. 2d 503 (15 and 20 year add-ons for armed robbery, AVH, and AK) • People v. Morgan (firearm add-on for attempt first degree murder) Sharpe overrules:

  5. Sharpe applies retroactively to all cases pending on direct appeal at the time Sharpe was decided • 15 year add-on for armed robbery with firearm still unconstitutional because of “identical elements” comparison with armed violence People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1 (2007)

  6. Transactional drug offense involving five or more grams of cocaine • Forcible felony related to the activities of an organized gang Common “findings” which make offenses nonprobationable

  7. See Cunningham v. California, 166 L. Ed. 2d 856 (2007) (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates Apprendi) Does Apprendi require these findings to be made by a jury?

  8. Presumption is to be given unless: imprisonment needed to protect public or Probation would deprecate the seriousness of the offense Presumption in favor of probation

  9. Harris v. United States, 536 U.S. 545 2002): Apprendi only applies to findings which raise the maximum, not to findings which raise the minimum Probation and Apprendi

  10. Count the justices: • Majority: Kennedy, Scalia, O’Connor, Breyer, and Rehnquist (two missing) • Minority: Thomas, Stevens, Souter, and Ginsberg (all still on court) But . . .

  11. Mandatory: class 1, class X, first degree murder and severe bodily injury CSA, ACSA, PCSA Solicitation, heinous battery, agg bat senior citizen, class X drug case Bond on bond Thumbnail Sketch of Consecutive sentencing

  12. Discretionary: • No single course of conduct • Needed to protect public Thumbnail sketch of consecutive sentencing

  13. Severe bodily injury must be part of triggering murder, class X felony, or class 1, not part of nontriggering offense. People v. Whitney, 188 Ill. 2d 91 (1999) • But SBI can be inherent in or element of triggering offense, People v. Phelps, 211 Ill. 2d 1 (2004) Two rules for severe bodily injury

  14. Nick or cut on arm, caused by gunshot? • Fractured big toe, caused by gunshot? • Injury to knee, “sharp pain,” caused by gunshot? • Grazed right cheek? Caused by gunshot? What is SBI?

  15. Independent motivation test • Or: time lapse, proximity, number of victims Single course of conduct?

  16. Not retroactive – Schiro v. Summerlin, 542 U.S. 556 (2002) • Doesn’t apply to consecutive sentencing. People v. Carney, 196 Ill. 2d 518 (2001) • Doesn’t apply to good time credits – People v. Bell, 327 Ill. App. 3d 328 • Doesn’t require indictment – People v. Thurow, 203 Ill. 2d 352 • Doesn’t apply to recidivist cases. • Can be waived and/or harmless Apprendi – Where are we?

  17. (g) Proceedings When an Enhanced Sentence is Sought. When the death penalty is not being sought and the State intends, for the purpose of sentencing, to rely on one or more sentencing enhancement factors which are subject to the notice and proof requirements of section 111-3(c-5) of the Code of Criminal Procedure, the court may, within its discretion, conduct a unitary trial through verdict on the issue of guilt and on the issue of whether a sentencing enhancement factor exists. The court may also, within its discretion, upon motion of a party, conduct a bifurcated trial. In deciding whether to conduct such a bifurcated trial, the court must first hold a pretrial hearing to determine if proof of the sentencing enhancement factor is not relevant to the question of guilt or if undue prejudice outweighs the factor's probative value. • RULE 415(G) New Apprendi SC rule

  18. While it would have been preferable to have used a more precise instruction and verdict form in order to communicate to the jury that a single juror's “no” vote would prevent an affirmative verdict of brutal or heinous conduct, we find no abuse of discretion.People v. Starnes  374 Ill.App.3d 132, *142, 869 N.E.2d 834, **844, 311 Ill.Dec. 821, ***831 (Ill.App. 1 Dist.,2007) New Apprendi instructions may have flaw

  19. I find that the defendant deserves a harsh sentence. She has not spoken at this sentencing hearing and has not expressed remorse. She went to trial. Her witnesses perjured themselves. Her family disrupted this courtroom. If she is put on probation she may become pregnant. She is unemployed, she lives her boyfriend, she is HIV positive, and she is an unwed mother. She stole property, so she received compensation for committing this offense. A judge’s finding at a sentencing hearing.

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