94- 649 C.M.R. ch. 102, § 12

Current through 2024-50, December 11, 2024

Section 649-102-12 - SENTENCING OPTIONS, CONSEQUENCES AND PROCEDURES

1. Defense counsel should be familiar with the sentencing provisions and options applicable to the case, including:

A. deferred disposition, judgment without a finding, and diversionary programs;

B. probation or suspension of sentence and permissible conditions of probation;

C. restitution;

D. fines;

E. court costs;

F. imprisonment, including any mandatory minimum requirements;

G. confinement in mental institution;

H. forfeiture.

2. Defense counsel should be familiar with direct and collateral consequences of the sentence and judgment, including:

A. credit for pretrial detention;

B. parole eligibility and applicable parole release ranges;

C. effect of good-time credits on the client's release date and how those credits are earned and calculated;

D. place of confinement and level of security and classification;

E. self-surrender to place of custody;

F. eligibility for correctional programs and furloughs;

G. available drug rehabilitation programs, psychiatric treatment, and health care;

H. deportation;

I. use of the conviction for sentence enhancement in future proceedings;

J. loss of civil rights;

K. impact of a fine or restitution and any resulting civil liability;

L. restrictions on or loss of license;

M. loss of the right to possess a firearm under Maine or federal law.

3. Defense counsel should be familiar with the sentencing procedures, including:

A. the effect that plea negotiations may have upon the sentencing discretion of the court;

B. the procedural operation of any sentencing guideline system;

C. the effect of a judicial recommendation against deportation;

D. the practices of the officials who prepare the pre-sentence report and the client's rights in that process;

E. the access to the pre-sentence report by defense counsel and the client;

F. the prosecution's practice in preparing a memorandum on punishment;

G. the use of a sentencing memorandum by the defense;

H. the opportunity to challenge information presented to the court for sentencing purposes;

I. the availability of an evidentiary hearing to challenge information and the applicable rules of evidence and burdens of proof at such a hearing;

J. the participation that victims and prosecution or defense witnesses may have in the sentencing proceedings.

4. Preparation for Sentencing.

In preparing for sentencing, defense counsel should consider the need to:

A. inform the client of the applicable sentencing requirements, options, and alternatives, and the likely and possible consequences of the sentencing alternatives;

B. maintain regular contact with the client prior to the sentencing hearing, and inform the client of the steps being taken in preparation for sentencing;

C. obtain from the client relevant information concerning such subjects as his or her background and personal history, prior criminal record, employment history and skills, education, medical history and condition, and financial status, and obtain from the client sources through which the information provided can be corroborated;

D. ensure the client has adequate time to examine the pre-sentence report;

E. inform the client of his or her right to speak at the sentencing proceeding and assist the client in preparing the statement, if any, to be made to the court, considering the possible consequences that any admission of guilt may have upon an appeal, subsequent retrial or trial on other offenses;

F. prepare the client to be interviewed by the official preparing the pre-sentence report;

G. inform the client of the effects that admissions and other statements may have upon an appeal, retrial, parole proceedings, or other judicial proceedings, such as forfeiture or restitution proceedings;

H. inform the client of the sentence or range of sentences defense counsel will ask the court to consider; if the client and defense counsel disagree as to the sentence or sentences to be urged upon the court, defense counsel shall inform the client of his or her right to speak personally for a particular sentence or sentences;

I. collect documents and affidavits to support the defense position and, where relevant, prepare witnesses to testify at the sentencing hearing; where necessary, counsel should specifically request the opportunity to present tangible and testimonial evidence.

5. The Prosecution's Sentencing Position

A. Defense counsel should attempt to determine, unless there is a sound tactical reason for not doing so, whether the prosecution will advocate that a particular type or length of sentence be imposed.

B. If a written sentencing memorandum is submitted by the prosecution, defense counsel should request to see the memorandum and verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, defense counsel should take appropriate steps to correct the information unless there is a sound strategic reason for not doing so.

C. If defense counsel request to see the prosecution memorandum is denied, an applicable motion to examine the document should be made to the court or a motion made to exclude consideration of the report by the court and to prevent distribution of the memorandum to parole and correctional officials.

6. The Sentencing Process

A. Defense counsel should be prepared at the sentencing proceeding to take the steps necessary to advocate fully for the requested sentence and to protect the client's interest.

B. Defense counsel should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of sentence.

C. In the event there will be disputed facts before the court at sentencing, defense counsel should consider requesting an evidentiary hearing. Where a sentencing hearing will be held, defense counsel should ascertain who has the burden of proving a fact unfavorable to the client, be prepared to object if the burden is placed on the defense, and be prepared to present evidence, including testimony of witnesses, to contradict erroneous or misleading information unfavorable to the client.

D. Where information favorable to the client will be disputed or challenged, counsel should be prepared to present supporting evidence, including testimony of witnesses, to establish the facts favorable to the client.

E. Where the court has the authority to do so, defense counsel should request specific orders or recommendations from the court concerning the place of confinement, parole eligibility, psychiatric treatment or drug rehabilitation, permission for the client to surrender directly to the place of confinement and against deportation of the defendant.

F. Where appropriate, defense counsel should prepare the client to personally address the court.

7. The Defense Sentencing Memorandum

A. Defense counsel should prepare and present to the court a defense sentencing memorandum where there is a strategic reason for doing so. Among the topics defense counsel may wish to include in the memorandum are:

(1) challenges to incorrect or incomplete information in any prosecution sentencing memorandum;

(2) challenges to improperly drawn inferences and inappropriate characterizations in the official presentence report and any prosecution sentencing memorandum;

(3) information contrary to that before the court which is supported by affidavits, letters and public records;

(4) information favorable to the client concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, employment record and opportunities, education background, and family and financial status;

(5) information which would support a sentencing disposition other than incarceration, such as the potential for rehabilitation or the nonviolent nature of the crime;

(6) information concerning the availability of treatment programs, community treatment facilities, and community service work opportunities;

(7) presentation of a sentencing proposal.

8. Motion for a New Trial

A. Defense counsel should be familiar with the procedures available to request a new trial including the time period for filing such a motion, the effect it has upon the time to file a notice of appeal, and the grounds that can be raised.

B. When a judgment of guilty has been entered against the defendant after trial, defense counsel should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors defense counsel should consider include:

(1) the likelihood of success of the motion, given the nature of the error or errors that can be raised;

(2) the effect that such a motion might have upon the client's appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the client's right to raise on appeal the issues that might be raised in the new trial motion.

9. Bail Pending Appeal

A. Where a client indicates a desire to appeal the judgment and/or sentence of the court, defense counsel should inform the client of any right that may exist to be released on bail pending the disposition of the appeal.

B. Where an appeal is taken and the client requests bail pending appeal, defense counsel should cooperate with appellate counsel (if different counsel) in providing information to pursue the request for bail.

10. Self-Surrender

Where a custodial sentence has been imposed, defense counsel should consider requesting a stay of execution of the judgment to permit the client to report directly to the place of confinement.

11. Right to Appeal

A. Defense counsel should inform the client of his or her right to appeal the judgment of the court and the action that must be taken to perfect an appeal. In circumstances where the client wants to file an appeal but is unable to do so without the assistance of counsel, defense counsel should file the notice in accordance with the rules of the court and take such other steps as are necessary to preserve the client's right to appeal, such as ordering transcripts of the trial proceedings.

B. Defense counsel's advice to the client should include an explanation of the right to appeal the judgment of guilty and, in those jurisdictions where it is permitted, the right to appeal the sentence imposed by the court.

C. Where the client takes an appeal, defense counsel should cooperate in providing information to appellate counsel (if different counsel) concerning the proceedings in the trial court.

12. Sentence Reduction

Defense counsel should inform the client of procedures available for requesting a discretionary review of, or reduction in, the sentence imposed by the trial court, including any time limitations that apply to such a request.

94- 649 C.M.R. ch. 102, § 12