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

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Presentation on theme: "Criminal Sentencing in Illinois Stephen L. Richards Deputy Defender OSAD/DPTA January 11, 2008."— Presentation transcript:

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

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

3 Poked in the Eye with A Sharpe Stick “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)

4 Sharpe overrules: 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)

5 People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1 (2007) 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

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

7 Does Apprendi require these findings to be made by a jury? 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)

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

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

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

11 Thumbnail Sketch of Consecutive sentencing 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

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

13 Two rules for severe bodily injury 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)

14 What is SBI? 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?

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

16 Apprendi – Where are we? 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

17 New Apprendi SC rule (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)

18 New Apprendi instructions may have flaw 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)

19 A judge’s finding at a sentencing hearing. 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.

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