Criminal Sentencing in Illinois

Stephen L. RichardsDeputy Defender

OSAD/DPTAJanuary 11, 2008

Sentencing Checklist

Range ?

Probation?

Consecutive?

Extendable?

Good-time credits?

Treatment?

Boot camp?

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)

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)

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

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

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)

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

Probation and Apprendi

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

But . . .

Count the justices:

Majority: Kennedy, Scalia, O’Connor, Breyer, and Rehnquist (two missing)

Minority: Thomas, Stevens, Souter, and Ginsberg (all still on court)

Thumbnail Sketch of Consecutive sentencing

Mandatory:

class 1, class X, first degree murder and severebodily injury

CSA, ACSA, PCSA

Solicitation, heinous battery, agg bat senior citizen, class X drug case

Bond on bond

Thumbnail sketch of consecutive sentencing

Discretionary:

◦No single course of conduct

◦Needed to protect public

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)

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?

Single course of conduct?

Independent motivation test

Or: time lapse, proximity, number of victims

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

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)

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)

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.