Sack Lunch Sentencing: Criminal History Calculation · 2019. 9. 18. · non-MN criminal history...

Sack Lunch Sentencing: Criminal History Calculation

1Criminal History Calculation Webinar

CRIMINAL HISTORY CALCULATION WEBINAR 2

GUIDELINES EFFECTIVE DATES

• Always start with the Guidelines in effect when the current offense was committed.

• The 2019 Guidelines are in effect for offenses committed on or after August 1, 2019, and remain in effect until the next publication.

THE COMMISSION’S 2019 ACTION ON EFFECTIVE DATE

• The Commission modified Guidelines §3.G to clarify that the effective-date policy, enacted in 1987, applies to the whole Guidelines.

• The Commission clearly stated its unanimous intent that the 2019 Guidelines modifications apply prospectively (for offenses committed on/after 8/1/2019).

Before We Begin – Effective Dates

The Level of Sentence: An Imposed Sentence

Felonies: Minn. Stat. § 609.02, subd. 2

• The court records a finding of guilt and a sentence is imposed but not executed.

• A felony sentence is defined as a sentence duration of more than one year may –minimum 1 year and 1 day.

• The disposition can be a stay of execution or a commit (prison).

• The offense will be included in the felony section based on the policies in 2.B.1.

Gross Misd.: Minn. Stat. §609.02, subd. 4


• A gross misd. sentence is defined as a sentence duration of 91 to 365 days.

• The disposition can be a stay of execution or local confinement (jail).

• The offense will be included in the misd./gross misd. section based on the policies in 2.B.3.

Misd.: Minn. Stat. § 609.02, subd. 3


• A misd. sentence is defined as a sentence duration of not more than 90 days.

• The disposition can be a stay of execution or local confinement (jail).


Criminal History Calculation Webinar 3

The Level of Sentence: A Stay of Imposition Sentence

Stay of Imposition for a Felony level offense

• The court records a finding of guilt.

• No sentence duration is imposed that aligns to Minn. Stat. §609.02, subd. 2.

• The disposition will be a stay.

• The offense will be included in the felony section based on the policies in 2.B.1.

• The offense will be deemed a misd. if successfully completed for non-criminal history purposes.

Stay of Imposition for a Gross Misd. level offense






Stay of Imposition for a Misd. level offense







The Level of Sentence: “Non-conviction” Disposition

• The offender may or may not enter a guilty plea, but the court will not enter a final judgement of guilt.

• Without a final judgement of guilt, there is no conviction.

• With no conviction, there can be no sentence imposed.

• With no sentence imposed (or stay of imposition) a “non-conviction”* disposition will not be included in criminal history unless it is revoked and a sentence is imposed (including a stay of imposition).

• * “Non-conviction” disposition is an MSGC training term to differentiate between offenses that have a finding of guilt – a conviction – and those that do not.


Other things to consider before calculating criminal history –non-MN criminal history

• For non-MN offenses, the policy in 2.B.5 states that “the court must make the final decision as to whether and how a prior non-MN conviction should be counted in criminal history.

• The court “should consider, but is not limited to, the factors in…sections 2.B.1 through 2.B.7” which are the criminal history policies.

• Unless it is absolutely clear, such as with a felony drug offense or a felony DWI offense (and even then the court should make the final decision), non-MN priors should not be listed in criminal history.

• If they are included, a note should also be placed on the worksheet indicating that the court made the determination as to how to include the priors; MSGC cannot review a worksheet without a comment to that effect.


Other things to consider before calculating criminal history –Enhanced offenses

• Enhanced offenses fit into two categories: DWIs and non-DWIs. The policies are:

• A qualified custody status point can be given for a targeted misd., a non-traffic gross misd., or a gross misd. DWI that is used to enhance.

• Qualifying targeted misd. or gross misd. priors used to enhance will NOT be included in criminal history on the worksheet being completed for the enhanced felony offense.

• Felony offenses used to enhance, including juvenile adjudication for felonies when applicable, are used in criminal history per the policies in 2.B.1 and 2.B.4.

• Keep in mind:

• The ‘enhancing’ prior misd./gross misd. offenses are only removed from criminal history on the worksheet for the felony they are enhancing. They will be eligible to be used on future offenses per the policies 2.B.3 and 2.B.5.

• Prior misd./gross misd. DWI offenses used to enhance the first felony DWI will not also be included as history in any subsequent felony DWI criminal history. They are eligible to be used as criminal history on non-DWI offenses.


Criminal History Calculation – Custody Point (2.B.2)


CUSTODY STATUS POINT

For an adult-level or EJJ offense

Following a guilty plea, guilty verdict, or

conviction

For a felony, non-traffic gross misd. or DWI or reckless driving, or a

targeted misd.

One-half point is assigned when custody is for a severity level 1,

2, D1, or D2 offense

One-half point is assigned when custody is for an eligible gross

misd., or targeted misd.

All other offenses receive a full custody

point

Custody Status Types

• Probation – assigned when the new offense is committed while the offender is serving the probation portion of a stay of execution or stay of imposition.

• When the current offense occurred before 8/1/2019, probation is eligible for a 152.18 disposition.

• Parole/Supervised Release/Conditional Release – assigned when the new offense is committed while the offender is serving the post-incarceration portion of an executed sentence (SR) or the extended supervision period for specific offenses (CR).

• Confined – assigned when an offender is a) confined in jail pending sentencing; or, b) serving conditional jail time tied to a probation sentence; or, c) following an executed sentence – confined in jail or prison.


Custody Status Types, cont.

• Release Pending Sentencing – assigned when the current offense is committed while the offender is awaiting sentencing on an new felony offense.

• Escape – assigned when the offense is committed following escape from an executed sentence.

• Extended Jurisdictional Juvenile offense (EJJ) – assigned when the new felony is committed following an EJJ conviction but before the offender turns 21. If the EJJ is revoked, this status is not applicable.

• EFFECTIVE THROUGH 7/31/2019: Within Original Probation Period – assigned when the offender is discharged early from probation and commits the new felony offense between the date of discharge from probation and the date original term would have expired.


1. The current offense is found on the Sex Offender Grid at Severity Level A – G.➢ Failure to Register doesn’t qualify since

it is an H.

2. The offense that they are on custody for must also be at a Severity Level A-G.➢ Custody for Failure to Register doesn’t

qualify since it is an H.

TIP: Give the offender the first custody point then give consideration to whether or not they qualify for the second point.

Criminal History Calculation –Additional Custody Point

11 Criminal History Calculation Webinar

When not to assign a custody point

A custody status point for the new offense will not be assigned if the offender:

▪ was committed for treatment or examination pursuant to Minn. R. Crim. P. 20; or,

▪ committed the current offense on/after August 1, 2010 and is the custody is for a misdemeanor offense not found on the targeted misdemeanor list; or,

▪ was on any type of custody related to a juvenile offense (non-EJJ); or,

▪ was on custody for a M/GM DWI which was committed by a 16- or 17-year- old; or,

▪ Was discharged early from probation, and the current offense occurred on/after 8/1/2019 (Within Original Probation Period).


Criminal History Point – Juvenile Priors (2.B.4)

Age

• Under 25 when the current felony is committed.

• Over 14 when the eligible prior was committed.

Offense Type

• A felony offense that was adjudicated delinquent in juvenile court.

Points

• 2 priors make 1 point.

• List all eligible priors on the worksheet.


Criminal History Point – Misd./Gross Misd. Priors (2.B.3)

Eligible Misd./Gross Misd. Offenses

• Targeted misd.

• Non-traffic gross misd.

• Gross misd. DWI/Reckless Driving/Refusal to Test

• Felonies sentenced to less than 1 year/1 day

• Received an imposed sentence or stay of imposition prior to sentencing on the current offense

• If applicable, NOT used to enhance the current felony offense (such as a DWI or Domestic offenses)

Not Decayed

• Pre-2019:

• 10 years from the date of discharge or expiration of the prior offense to the date the current offense occurred.

• Post-2019

• 10 years from the sentencing date of the prior offense to the date the current offense occurred.

Assigning Units/Making Points

• Assign 1 unit to each prior.

• 4 units make 1 point (maximum point for most felonies).

• List all eligible priors on the worksheet.

• When the current offense is a felony DWI or Criminal Vehicular Operation or Homicide (CVO/CVH), eligibleprior DWI, or CVO offenses, will be assigned 2 units each. No limit to the number of points assigned for these priors in this felony situation.


Criminal History Point – Felony Priors (2.B.1)

Felony Offenses

• MN felonies

• Eligible non-MN felonies

• EJJ convictions

• Received an imposed sentence of at least 1 year/1 day or stay of imposition prior to sentencing on the current offense.

Not Decayed

• Pre-2019:

• 15 years from the date of discharge or expiration of the prior sentence to the date the current offense occurred.

• Post-2019

• Prison sentence: no change

• Probation sentence (never revoked) 15 years from the sentencing date of the prior to the date the current offense occurred.

• No decay if still under custody for the offense.

Assigning Points

• Points are assigned based on:

• The severity level of the prior offense (using the Guidelines in effect when the current offense occurred)

• Equating the severity level to the points based on the Grid the current offense is being sentenced from


Weighting Felony Priors – Standard or Drug Grid Offense

▪ Severity Level 1 – 2, D1 – D2 = .5 pt.

▪ Severity Level 3 – 5, D3 – D5 = 1 pt.

▪ Severity Level 6 – 8, D6 – D7 = 1.5 pt.

▪ Severity Level 9 – 11, D8 – D9 = 2 pts.

▪ Murder 1st Degree = 2 pts.

▪ Severity Level A = 2 pts.

▪ Severity Level B – E = 1.5 pt.

▪ Severity Level F – G = 1 pt.

▪ Severity Level H =

▪ .5 point for the first

▪ 1 point for subsequent

▪ Current felony offense being sentenced is found on the Standard Sentencing Grid or the Drug Offender Grid.

▪ That means the current offense is ranked at Severity Level 1 thru 12 orSeverity D1 thru D9 .

16Criminal History Calculation Webinar

Weighting Felony Priors – Sex Offender Grid Offense

17

▪ Current felony offense being sentenced is found on the Sex Offender Grid.

▪ That means the current offense is ranked at Severity Level A thru H.

▪ Severity Level 1 – 2, D1 – D2 = .5 pt.

▪ Severity Level 3 – 5, D3 – D5 = 1 pt.

▪ Severity Level 6 – 8, D6 – D7 = 1.5 pt.

▪ Severity Level 9 – 11, D8 – D9 = 2 pts.

▪ Murder 1st Degree = 2 pts.

▪ Severity Level A = 3 pts.

▪ Severity Level B – C = 2 pt.

▪ Severity Level D – E = 1.5 pt.

▪ Severity Level F – G = 1 pt.

▪ Severity Level H =

▪ .5 point for the first

▪ 1 point for subsequentCriminal History Calculation Webinar

State v. Strobel

Three questions have to be asked about the first 5th degree drug offense being included in criminal history:

1. Was the drug Marijuana or was this a sale?

2. Did the prior offense occur before 8/1/2016?

3. Does the offender have a prior drug conviction, even if decayed?

If the answer to ALL of the above questions is “NO,” this prior must be listed in the GM section based on the MN Supreme Court case State v. Strobel unless the prosecutor has established that the weight of the drug is more than a trace amount.


For details of these policies, pre-2019 policies, and all of the 2019 modifications,please refer to the Commission’s web site:

https://mn.gov/sentencing-guidelines


https://mn.gov/sentencing-guidelines/guidelines/

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Sack Lunch Sentencing: Criminal History Calculation · 2019. 9. 18. · non-MN criminal history...

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