Posted September 27, 2017 by Mark Hauser
Philadelphia Criminal Attorney Discusses What Happens At Sentencing
So the defendant is found guilty in a criminal trial — by either a judge or a jury — now what? In Pennsylvania, the jury does not participate in the sentencing except in death penalty cases. Hence, in all other cases, the defendant is at the mercy of the judge who presided over the trial whether or not it was a jury or a waiver (judge) trial. If the defendant is found guilty only of a misdemeanor, then usually the defendant goes straight to sentencing in Philadelphia. If it is a serious misdemeanor and the defendant has a bad prior record, sometimes a Pre-sentence Investigation is ordered in case the judge is considering jail time for the defendant. A Pre-sentence Investigation is an interview of the defendant about his whole life so that the judge knows the defendant as a person. They are almost always ordered in felony cases since the possibility of jail time is more likely. In addition, if there is a mental health or drug issue, a Mental Health evaluation is done by a qualified psychologist.
At the sentencing the judge reads any reports and puts on the record the offense gravity score (a number indicating how serious the crime is) of the lead charge and the defendant’s prior record score. These two factors give the judge the sentencing guidelines from which to work with for the sentencing. Sometimes there is also a mandatory minimum (but most of them are on hold in the state of Pennsylvania), and if there is one the judge cannot sentence the defendant less than the mandatory minimum time period (e.g., five (5) years incarceration). The judge can sentence the defendant less or more than the suggested guidelines (e.g.,+ or – 12 months) if they feel it is appropriate (called mitigation). If they deviates more than than the mitigated time frame, the judge has to have a good reason(s) and must put those reasons on the record.
The defendant’s attorney makes their argument first and suggests a possible sentence to the judge. Then the Assistant District Attorney makes their argument and tells the judge what sentence that they think is appropriate. Then the defendant gets to speak to the judge last — this is called a Right of Allocution. The defendant is allowed to say anything civil, however, it is best for the defendant to show remorse and not make excuses. Then the judge puts his feelings and reasoning on the record and delivers the defendant his sentence.