Sentencing

What is Sentencing?

Sentencing is the method the court uses to determine and pronounce your punishment. The defense presents “extenuation and mitigation” evidence, which is supposed to explain why you committed the crime and why your punishment should be lessened. The prosecution presents “aggravation” evidence, which is supposed to explain why you should be punished more severely.

What types of punishment may I receive?

Common types of punishment imposed at Sentencing are any combination of the following: probation, jail time, community service, fines (determined by the criminal statute itself), costs (court administrative costs), restitution (a victim’s out-of-pocket losses), probation oversight fees, driver’s license sanctions, and vehicle immobilization (you make your car inoperable by selecting and paying for the services of a commercial immobilizing company).

How is Sentencing conducted?

With few exceptions, Sentencing is conducted by holding a hearing on the record in the courtroom. In felony cases and many misdemeanor cases, a Pre-Sentence Investigation Report (PSIR) will have been previously created. The PSIR, created by a probation officer, provides the court with an investigation into your background, the circumstances of the offense, the victim’s role and desires, and recommendations as to punishment. If a PSIR has been created, the judge at Sentencing will first ask you or your attorney whether the PSIR has been reviewed, and whether there are any additions or corrections to note. After this is completed, the judge will provide your attorney and you with an opportunity to make a statement to the court. Your statement is called an “allocution,” and you have a right to make this statement.

What should I say at Sentencing?

First and foremost, if you are represented, and you should be represented at Sentencing, follow your attorney’s advice on what to say—and what not to say. Generally, you want to express to the court your regret, sorrow, and remorse for your actions. You can apologize to the victim, but try not to apologize to the court (many courts don’t like it). You can explain why you committed the crime, like making a mistake in judgment or a bad choice (But DO NOT say “It was a mistake” with nothing more; after all, it’s not like you tripped and fell and committed the crime.) You can then talk about the impact of the crime on you, your family, and your friends, i.e., how embarrassed and humiliated you are, and how much you disappointed and let down your family and friends. Finally, you can tell the judge whether you’ve learned and changed from the offense—and whether you’ll ever commit another crime again.

Will the prosecutor be present at Sentencing?

Yes, in Circuit Court cases, i.e., which involve felonies and 2-year misdemeanors. Generally no in District Court cases, i.e., the remainder of misdemeanor cases.

What are common mistakes made at Sentencing?

First, defendants don’t prepare their statement enough, which causes them to forget, stammer, and cut their statements short. Before Sentencing you must craft your statement, and then practice it over and over. Second, defendants are frequently insincere, like they’re going through the motions, just wanting to get the hearing over with. Judges spot insincerity in milliseconds, so be sincere, embarrassed, and remorseful. It’s OK; in fact, it’s expected. Third, defendants are frequently not respectful enough and they interrupt or argue with the judge. You must remember to be very respectful, use copious amounts of “Your Honor,” and not—and I mean NOT—interrupt or argue with the judge. You will lose that argument every time. The judge is the master of your fate.

Can I provide a written statement or letters?

Yes. But if it’s your own personal written statement or letter, it’s better to just tell the court in your own words what you want to say, rather than delivering it to the court or reading it. You may also submit “character letters” from other people on your behalf. If you do this, the letters should, if possible, be delivered to the court before Sentencing.

Can someone appear on my behalf at Sentencing and make a statement?

Yes, if the court agrees to it. The statement should be limited to matters in extenuation and mitigation, i.e., an explanation of why you committed the crime and why you should be punished less severely.