D.C. Voluntary sentencing guidelines training - PowerPoint Presentation

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D.C. Voluntary sentencing guidelines training

Scoring Out-of-District Offenses

November 28, 2018

Scoring Out-of-District Offenses

Outline of Session

General rules

Steps in identifying the current D.C. offense that “most closely matches” the out-of-District offense.

What to do if there is more than one possible D.C. statute that “closely matches” the out-of-District offense.

What to do if there are no comparable D.C. statutes.

The process for challenging a decision regarding an out-of-District Offense.

Special rules for out-of-District offenses committed before a defendant’s 18

th

birthday.

Rules for scoring Territorial and Foreign convictions

General Rules

Look at the name of the offense in the out-of-District statute.

Examine the elements of the offense in the out-of-District statute.

Based only on those two factors, choose the current D.C. offense that most closely matches the out-of-District offense. Score the out-of-District offense just as the most closely matched D.C. offense would be scored.

Example: An out-of-District offense that most closely matches ADW is scored as 2 points, just as is a prior D.C. ADW conviction.

General Rules

If there is more than one D.C. statute that “closely matches” the out-of-District offense, select the least severe D.C. statute.

It’s fine if the least severe D.C. statute is a felony even though the out-of-District offense is a misdemeanor (which happens often with Maryland statutes).

Do not look to underlying conduct; focus on the name and elements of the offense.

If there is >1 possible D.C. statute that “closely matches” the out-of-District offense, the PSR writer should always identify all of the matching offenses in a footnote and indicate that the least severe was scored.

General Rules

Example

: The Commission was recently asked how to score the N.C. crime of Burning a Schoolhouse (N.C. § 14-60

).

There

is more than one D.C. statute that closely matches that NC offense:

Arson - § 22-301, an M6 felony

Felony malicious burning § 22-303, an unranked felony

Misdemeanor malicious burning § 22-303, a

misdemeanor

It should be initially scored as the least severe offense – a misdemeanor – with a footnote indicating that the offense could also match one or the other felony offenses.

General Rules

If no comparable D.C. statute can be found, the following default rules apply:

1

point for all convictions classified as felonies

¼ point for all convictions classified as misdemeanors where the sentence max is ≥ 90 days

No score for convictions classified as misdemeanors where the sentence max is < 90 days

½ point for adjudications classified as felonies

No score for adjudications classified as misdemeanors

No score where the conduct of conviction has been decriminalized in D.C.

General Rules

Steps for seeking a criminal history correction if a party thinks these rules have been applied improperly:

If the court concludes by a preponderance of evidence that the underlying conduct for the out-of-District conviction most closely matches a more or less severe D.C. offense, then the court must apply the same number of points applicable to the more or less severe D.C. offense.

The burden is on the party challenging the initial determination.

The court should apply a new score only if it determines that the conduct of conviction, as opposed to the alleged conduct or conduct relating to other offenses, more closely matches the more or less severe D.C. offense.

General Rules

Under nearly all circumstances, the Guidelines prohibit the parties from bargaining over criminal history score, but this is an exception – the parties can agree that the court should apply a particular number of points for an out-of-District conviction.

If agreed upon by the parties, CSOSA and the court should accept this score when calculating criminal history.

This exception applies only to out-of-District convictions and is the only exception to the general prohibition on bargaining over criminal history score.

General Rules

In some cases,

the sentence

imposed on the prior case may assist in making the determination of which D.C. statute most closely matches the out-of-District offense.

Example: The N.C. offense of “breaking and entering” includes both a misdemeanor element (simple breaking or entering) and a felony element (the intent to commit a felony or larceny). It is impossible to know from a simple docket entry whether this prior was a felony or a misdemeanor. But if the defendant received a 5-year sentence, it must have been a felony because the maximum punishment for a misdemeanor is 120 days.

General Rules

Ascertaining which D.C. offense most closely matches an out-of-District offense may not be necessary if:

The number of criminal history points assigned to it would be the same regardless of whether it comes closer to one offense or another.

The total number of criminal history points would not change the column in which the defendant is

placed.

A defendant has six or more points (e.g., two prior violent felonies; three prior mid-level felonies; sex prior low-level felonies; or a combination of these and misdemeanors that add up to six points or more.

Special Rules for Scoring Out-of-District Offenses Committed Before a Defendant’s 18

th

Birthday

If the defendant’s out-of-District conviction was for an offense committed when he or she was under 18:

A prior conviction where the defendant was less than 15 is scored as a juvenile adjudication.

Except for certain circumstances (see below), a prior conviction where the defendant was 15 or older is scored as a juvenile adjudication

unless

the court finds (preponderance of the evidence) that the juvenile was tried as an adult (including both transfer and reverse transfer scenarios).

A prior conviction comparable to murder, first degree sexual abuse, robbery while armed (firearm) or assault with intent to commit any of these where the defendant was 16 or older at the time of offense is scored as an adult conviction.

Special Rules for Scoring Out-of-District Offenses Committed Before a Defendant’s 18

th

Birthday

A prior out-of-District conviction for armed robbery/robbery with a weapon is scored as an adult conviction

unless

the defendant can show by a preponderance that the weapon involved was

not

a firearm, in which case it’s scored as a juvenile adjudication (there’s a rebuttable presumption that the weapon was a firearm).

If the nature of the weapon can’t be confirmed, the PSR should include an asterisk saying “presumed firearm otherwise unknown.”

Scoring Military, Territorial and Foreign Convictions

Convictions for military offenses are scored if imposed by a general or special court martial. Convictions imposed by a summary court martial or Article 15 proceedings are not scored.

Federal convictions from U.S. territories are scored. Local convictions from U.S.

t

erritories are presumptively scored, unless it is shown that the territory’s criminal justice system doesn’t provide sufficient procedural protections (e.g., local convictions from the Northern Mariana Islands are scored as misdemeanors unless the sentence imposed was > 5 years).

Convictions

from foreign jurisdictions are not scored.

Additional Resources and Commission Staff

Please feel free to contact the Commission with additional questions or for assistance with specific cases.

Contacting the Commission with general questions:

scdc@dc.gov

(202) 727-8822

For specific questions about the Guidelines:

General Counsel Kara Dansky

Kara.dansky@dc.gov

(202) 727-7934

Additional resources, including the Voluntary Sentencing Guidelines Manual:

http://scdc.dc.gov