A defendant enters a “sentencing” phase to his criminal case if he is found guilty during a trial or pleads guilty to a crime. The phase determines how a convicted party will be punished or penalized for the crime that he was found guilty of committing. Penalties range broadly and they may include:

• Fines
• Jail or prison time
• “Alternative” State programs

Sentencing can be just as important as a criminal trial. There are many rules to understand. The ultimate task is also critical in nature. That being, to get a defendant the least possible punishment under the law, or, the most care and attention for his particular situation. This importance demands a closer look at the issues involved.

Our Washington criminal defense attorneys will discuss the following in this article:

1. What is sentencing (in general)?

2. Are there maximum criminal penalties?

3. How does sentencing work in misdemeanor cases?

4. What is the sentencing grid for felony cases?

5. Are there sentencing options or alternatives?

6. What is community supervision?

7. What does “Three Strikes and You’re Out” Mean?

1. What is sentencing (in general)?

Sentencing is one of the phases within a criminal court case. It occurs after a defendant either:

• Pleads guilty to a charge, or
• Is found guilty during trial.

The main task of the phase is to determine how the defendant should be punished for the crime that he was found guilty of committing.

Sentencing takes place at a sentencing hearing. This is typically held a few weeks after a conviction (or guilty plea). The following parties are present:

• A judge
• The defendant
• The defendant’s attorney
• The prosecutor

In some situations, the defendant’s family and friends may be present to testify on his behalf.  For many cases, victims will either appear or send a message to the court in advance.

The judge will consider many factors during this hearing to arrive at the ultimate sentence. These include the:

• State sentencing guidelines
• Severity of the crime committed
• Circumstances surrounding the commission of the crime
• Criminal history of the defendant
• Victim statements
• Statements from the defendant’s family and friends
• Personal history of the defendant (including work history and standing in the community)

The judge has many options in handing out the ultimate sentence. He could impose fines. A judge can place a defendant in custody in jail or prison, or order alternatives to confinement such as work release or electronic home detention. He can even award restitution, or make the defendant pay a “victim” for any damages his crime caused.

2. Are there maximum criminal penalties?

There are maximum criminal penalties in Washington. Learning this requires understanding the categories and classes of crimes in the State. There are three categories of crimes in Washington. These are:

• Misdemeanors (the least severe of offenses)
• Gross misdemeanors
• Felonies (the most severe of offenses)

Note that felonies are divided into three classes: A, B, and C. The A class includes the worst crimes that deserve the greatest penalties. The C class represents the least severe felonies.

The above classifications are associated with a maximum sentence. These maximums are:

• Misdemeanors – punishable by not more than 90 days in jail and a fine of up to $1,000.
• Gross misdemeanors – punishable by not more than 364 days in jail and fines of up to $5,000.
• Class C felonies – punishable by up to 5 years in prison and fines of up to $10,000.
• Class B felonies – punishable by up to 10 years in prison and fines of up to $20,000.
• Class A felonies – punishable by up to life in prison and fines of up to $50,000.

Note the distinction between jail and prison. “Jail” means time served in county jail. “Prison” means time served in a state correctional facility.

3. How does sentencing work in misdemeanor cases?

For simple misdemeanors judges can impose up to 90 days in jail and for gross misdemeanors they can impose up to 364 days.  Legally, judges can impose sentence anywhere in that range, up to the maximum authorized by law.  However, they rarely do this, typically only in exceptional cases.  What happens more often is that a judge will impose either a short jail sentence or no jail at all, but will suspend or defer the sentence, which means that more jail can be imposed at a later time if the defendant does not comply with the other conditions a judge orders.  These other conditions might include things like community service or substance abuse treatment.  Judges can often be persuaded to impose little or no jail time in cases where defendants have little or no criminal history, where the crime is not severe, and/or when compelling circumstances supporting leniency exist.

4. What is the sentencing grid for felony convictions?

For felony convictions a judge does not always have to impose the maximum punishment, and often cannot.  Judges in these cases do not have unlimited discretion.  When imposing sentence in felony cases the court must first consider the state sentencing guidelines set forth in the Sentencing Reform Act (SRA), which set a range that is typically far less than the maximum.  Judges must impose sentence within this range unless certain factors that call for an “exceptional sentence” exist.  Judges consider all the factors set forth above in deciding where in the range to sentence a defendant or whether to go above or below the range or issue an alternative type of sentence (discussed below).

Judges use a sentencing grid when they opt to not give a maximum penalty. The grid is used as a means to calculate jail and prison sentences and it helps ensure that similar crimes receive similar sentences. While its primarily used in felony cases, past misdemeanor convictions can affect a defendant’s ultimate score. The grid itself is found in the following statute: RCW 9.94A.510.

The first step in using this statute is for a judge to determine the “seriousness level” for a given offense. The grid provides for 16 levels of seriousness. RCW 9.94A.515 shows the seriousness level for most felonies. So, a judge simply has to read the statute to find how serious a crime is. Aggravated murder is listed as the most serious offense in Washington and violating commercial fishing regulations is the least serious.

Next, a judge “scores” a defendant by looking at his criminal history. Histories with prior convictions result in higher scores, which in turn means, a greater prison sentence. Different scores will be given to different types of convictions (e.g., misdemeanor convictions receive lower scores than convictions for felonies, if they are scored at all).  Also, prior convictions score differently depending on the current charge, and score higher if they are similar to the current charge.

Once the above are calculated, a judge can then go back to the grid and it instructs on the recommended sentence, based on:

1. The seriousness of the defendant’s crime, and
2. The defendant’s criminal history.

The recommended sentence is expressed in months. An example is 12-14 months in prison. The judge then issues a sentence to the defendant that is within that range.

As noted above, there are times when a judge can deviate from this range. A prosecutor may ask for a “exceptional” sentence that is beyond the sentencing range in the grid. Likewise, a defense attorney can ask for an “exceptional down” sentence that is lower than the minimal sentence listed in the grid. The judge can agree with either party and award either an exceptional sentence or an exceptional down sentence.

5. Are there sentencing options or alternatives?

The above discussion has been limited to sentences including fines and jail/prison time. There are sentencing alternatives in Washington that do not involve these or may involve them on a less intrusive scale. An example is the first-time offender waiver. This waiver applies if a defendant has no:

• Felony record
• Previous violent offenses
• Previous sex offenses
• Specific drug dealing offenses

If applicable, a judge may award a defendant with a lighter sentence and it may include things like community supervision and partial confinement options.

A second sentencing alternative is the Drug Offender Sentencing Alternative (DOSA). The program is available to:

• Non-violent drug offenders,
• With an offense involving only a small amount of drugs.

If a defendant qualifies, a judge can:

• Impose a shortened period of confinement that is followed by community supervision, and
• Order the defendant to receive substance abuse treatment and certain testing to monitor program compliance.

One final example of an alternative sentencing option is the Special Sex Offender Sentencing Alternative (SSOSA). This program allows for community treatment for certain sex offenders. Defendants are eligible if they:

• Can be treated, and
• Are considered a low risk to community safety.

Participants in the program are not placed in confinement. Rather, a judge orders them to long periods of community supervision.

6. What is community supervision?

A judge may impose community supervision as part of a sentence in many cases.  In misdemeanor cases, this usually takes the form of probation, which can be supervised or unsupervised.  Unsupervised probation usually consists of nothing more than a court official periodically checking to make sure that no new criminal offenses have been committed and ensuring that all obligations, such as payment of fines or completion of community service hours, have been completed on time.  Supervised probation, on the other hand, involves regular interaction with a probation officer, who will more closely monitor behavior.  In either case, violation of the conditions of probation will lead to a review hearing before the judge, who may impose additional punishment including more time in jail.

In felony cases, judges impose “community custody” which is a form of probation monitored by the Department of Corrections.  The term of community custody is determined by the crime a defendant is convicted of and the length of the prison sentence.  Some crimes carry no term of community custody and some carry up to lifetime on community custody.

Community supervision often subjects an offender to the following rules:

• The offender cannot own, use, or possess a firearm,
• The offender must undergo evaluations and/or treatment for any substance abuse issues,
• The offender must perform community service,
• The offender must regularly report to a community corrections officer, and
• The offender can be prohibited from certain acts.

7. What does “Three Strikes and You’re Out” Mean?

“Three Strikes and You’re Out” is a criminal law that went into effect with the passage of Washington’s Initiative 593 in 1993. The law hands down the penalty of life in prison (without the possibility of release) for “persistent offenders.” “Persistent offenders” are those persons that commit three “most serious” offenses.

“Most serious” offenses are listed in RCW 9.94A.030(33). Examples of these are felonies like:

• Murder in the first or second degree
• Child molestation in the first or second degree
• Controlled substance homicide
• Incest when committed against a child under age fourteen
• Indecent liberties
• Kidnapping in the first or second degree
• Manslaughter in the first degree
• Promoting prostitution in the first degree
• Rape in the first, second or third degree

Note that offenders convicted of two separate sex offenses are also considered “persistent offenders.” This means that they are also subject to life in prison without the possibility of release.

Further Questions?

Contact Black & Askerov now if you or someone who know has been convicted of a crime in Washington. Our Seattle based criminal defense attorneys know the law and they have the experience that matters. Call Black & Askerov  today to get the quality legal representation you deserve and to ensure your freedoms and rights are protected.