Understanding How Understanding How Prison Sentences WorkPrison Sentences Work

Chris FlorianChris Florian

Deputy General CounselDeputy General Counsel

South Carolina Department of South Carolina Department of CorrectionsCorrections

Call Us FirstCall Us FirstWe can help draft the proposed We can help draft the proposed sentencing order to ensure it will have sentencing order to ensure it will have the intended result.the intended result.

SCDC General Counsel: SCDC General Counsel: 803-896-8508803-896-8508 florian.chris@doc.sc.gov

The Maxout DateThe Maxout Date

4 types of sentences4 types of sentences Parolable offensesParolable offenses 85% offenses85% offenses Day-for-dayDay-for-day YOA sentencesYOA sentences

Substantial difference in percentage of Substantial difference in percentage of time offender would serve until maxouttime offender would serve until maxout

Parolable SentencesParolable Sentences

Felony D and lesser offenses with no mandatory minimumFelony D and lesser offenses with no mandatory minimumTypical offender will serve between 60% and 70% before maxout Typical offender will serve between 60% and 70% before maxout

Service TimeService Time Good Time Credits – SC Code Good Time Credits – SC Code § 24-13-210§ 24-13-210

20 days per month if disciplinary free20 days per month if disciplinary freeCan lose earned credits for a disciplinary offenseCan lose earned credits for a disciplinary offense

Earned Work/Education Credits – Earned Work/Education Credits – § 24-13-230§ 24-13-230Amount variesAmount variesMaximum is 1 day for every 2 days employed or enrolledMaximum is 1 day for every 2 days employed or enrolled

Service Time Good Time Work Credits

85% Sentences85% Sentences

““No parole” offenses S.C. Code No parole” offenses S.C. Code § 24-13-100§ 24-13-100 Defined as Class A, B, or C felonies, or offenses exempt from Defined as Class A, B, or C felonies, or offenses exempt from

classificationclassification

Cannot be released until served 85% of the sentenceCannot be released until served 85% of the sentence Service TimeService Time Good Time Credits – SC Code Good Time Credits – SC Code § 24-13-210§ 24-13-210

3 days per month if disciplinary free3 days per month if disciplinary free Earned Work/Education Credits – Earned Work/Education Credits – § 24-13-230§ 24-13-230

6 days per month if participating6 days per month if participating

Service Time Good Time Work Credits

Day-for-day offensesDay-for-day offenses

Offenses with mandatory minimum periods of Offenses with mandatory minimum periods of incarceration that must be served day-for-day.incarceration that must be served day-for-day.

Cannot reduce service time below mandatory minimum Cannot reduce service time below mandatory minimum through earned work credits or good time credits.through earned work credits or good time credits.

Example: Nelson v. Ozmint, 390 S.C. 432, 702 S.E.2d Example: Nelson v. Ozmint, 390 S.C. 432, 702 S.E.2d 369 (2010)369 (2010)

Requires day-for-day service on CDV 3Requires day-for-day service on CDV 3rdrd..

Service Time

YOA SentencesYOA Sentences

Targeted institutional programmingTargeted institutional programming

Administrative Release AuthorityAdministrative Release Authority Still in developmentStill in development Panel of 3-5 members to approve YOA parole release and Panel of 3-5 members to approve YOA parole release and

revocation revocation Considers 3 factorsConsiders 3 factors

Severity of crime as measured by Release MatrixSeverity of crime as measured by Release Matrix

Release Recommendations from community, victim(s) and institutionRelease Recommendations from community, victim(s) and institution

Risk Assessment Score as measured by Global Risk Assessment Device Risk Assessment Score as measured by Global Risk Assessment Device (GRAD)(GRAD)

Intensive Supervision ProgramIntensive Supervision Program

Sentence Calculation on the Sentence Calculation on the InternetInternet

Start at Start at http://www.doc.sc.gov

Common Pitfalls to Watch Out ForCommon Pitfalls to Watch Out For

Conflicting Sentencing Conflicting Sentencing OrdersOrders

The sentencing judge pronounces The sentencing judge pronounces one sentence and writes a one sentence and writes a

different sentencedifferent sentence

Conflicts between Pronouncement Conflicts between Pronouncement of Sentence and Written Orderof Sentence and Written Order

Boan v. State, 388 S.C. 272, 695 S.E.2d Boan v. State, 388 S.C. 272, 695 S.E.2d 850 (2010)850 (2010) Oral pronouncement: 20 years plus 10 years Oral pronouncement: 20 years plus 10 years

consecutiveconsecutive Written order: 30 years plus 10 years Written order: 30 years plus 10 years

consecutiveconsecutive ““In a situation such as the one on appeal, due In a situation such as the one on appeal, due

process requires the judge's oral process requires the judge's oral pronouncement control over a conflicting pronouncement control over a conflicting written sentencing order.”written sentencing order.”

But when the situation is But when the situation is reversed…reversed…

Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct. App. Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct. App. 2011) (petition for cert. pending)2011) (petition for cert. pending)

Oral pronouncement: 10 + 5 + 5 + 5 + 5 + 5 + 5 = 40 yearsOral pronouncement: 10 + 5 + 5 + 5 + 5 + 5 + 5 = 40 years6 5-year terms to run consecutively to each other6 5-year terms to run consecutively to each other

Written order: 10 + 5 = 15Written order: 10 + 5 = 15Silent as to whether the 5 year terms run consecutively to each Silent as to whether the 5 year terms run consecutively to each otherother

““Under ordinary circumstances, SCDC must determine the Under ordinary circumstances, SCDC must determine the sentence imposed by the trial court from the sentencing sheets. sentence imposed by the trial court from the sentencing sheets. If there is some ambiguity in the sentencing sheets, SCDC may If there is some ambiguity in the sentencing sheets, SCDC may examine the transcript of record to determine the intent of the examine the transcript of record to determine the intent of the sentencing judge.”sentencing judge.”

What about What about BoanBoan??““There are some situations in which SCDC may look beyond There are some situations in which SCDC may look beyond unambiguous sentencing sheets.”unambiguous sentencing sheets.”

Pre-Conviction Jail TimePre-Conviction Jail Time

Subsequent ConcurrentSubsequent ConcurrentSentencesSentences

Subsequent Concurrent Sentences:Subsequent Concurrent Sentences:The ProblemThe Problem

The jail time statute - SC Code The jail time statute - SC Code § 24-13-40§ 24-13-40 Automatic credit for time served before sentencingAutomatic credit for time served before sentencing

No credit for home detention. State v. Higgins, 357 S.C. No credit for home detention. State v. Higgins, 357 S.C. 382, 593 S.E.2d 180 (Ct. App. 2004)382, 593 S.E.2d 180 (Ct. App. 2004)

With 2 exceptions:With 2 exceptions:EscapeEscape

Already serving a sentence for another offenseAlready serving a sentence for another offense

The Court has the power to award a specific The Court has the power to award a specific amount of jail time under the statuteamount of jail time under the statute

Subsequent Concurrent Sentences:Subsequent Concurrent Sentences:The ProblemThe Problem

Sentence ASentence B

Under the statute (SC Code Under the statute (SC Code § 24-13-40)§ 24-13-40), the second , the second sentence starts on the date of sentencing!sentence starts on the date of sentencing!

Running them concurrently doesn’t change the jail time Running them concurrently doesn’t change the jail time credit.credit.

The SolutionThe Solution

Use the Court’s power to award a Use the Court’s power to award a specific amount of jail timespecific amount of jail time

Set sentence start date to same start Set sentence start date to same start date as sentence already being serveddate as sentence already being served

Indicate in the “Other” section of the Indicate in the “Other” section of the sentencing sheet sentencing sheet

Sentence A

Sentence B

Youthful Offender Act Youthful Offender Act Mandatory MinimumsMandatory Minimums

Second-Degree BurglarySecond-Degree Burglary

YOA Sentences for Second-Degree YOA Sentences for Second-Degree Burglary:Burglary:

The ProblemThe Problem

S.C. Code 24-19-10 now has a 3-year S.C. Code 24-19-10 now has a 3-year mandatory minimum for YOA 2mandatory minimum for YOA 2ndnd degree degree burglary sentences.burglary sentences. Both violent and non-violent.Both violent and non-violent.

Persons convicted of 2Persons convicted of 2ndnd degree burglary and degree burglary and sentenced under YOA must serve 3 years, sentenced under YOA must serve 3 years, day-for-day.day-for-day.Disqualifies these inmates for the shock Disqualifies these inmates for the shock incarceration program.incarceration program.

YOA Sentences for Second-Degree YOA Sentences for Second-Degree Burglary:Burglary:

The SolutionThe Solution

Mandatory minimum does not apply to other Mandatory minimum does not apply to other related offenses.related offenses.

Where there are multiple offensesWhere there are multiple offenses Seek incarcerative sentence on other offensesSeek incarcerative sentence on other offenses

Ask for adult offender sentence instead of YOAAsk for adult offender sentence instead of YOA No mandatory minimumNo mandatory minimum Still could be eligible for shock incarcerationStill could be eligible for shock incarceration But offender would lose benefits of YOABut offender would lose benefits of YOA

Concurrent Federal and Concurrent Federal and State SentencesState Sentences

Will they really run concurrently?Will they really run concurrently?

Concurrent Federal and State Concurrent Federal and State Sentences:Sentences:

The ProblemThe Problem

Will they really run concurrently?Will they really run concurrently?The federal rule: 18 USC The federal rule: 18 USC § 3585§ 3585Federal sentence starts when defendant Federal sentence starts when defendant arrives in federal custodyarrives in federal custodyBOP does not defer to State sentencing orderBOP does not defer to State sentencing orderBOP typically accepts custody only if they have BOP typically accepts custody only if they have “primary jurisdiction”“primary jurisdiction” Primary jurisdiction is the first jurisdiction to make Primary jurisdiction is the first jurisdiction to make

arrest.arrest.

Concurrent Federal and State Concurrent Federal and State Sentences:Sentences:

The SolutionThe Solution

Encourage coordination with federal authoritiesEncourage coordination with federal authorities BOP gives greater deference to federal ordersBOP gives greater deference to federal orders BOP has power to designate SCDC as a facility for BOP has power to designate SCDC as a facility for

service of the federal sentence.service of the federal sentence.18 USC 18 USC § 3621.§ 3621.

Sentences would then run concurrentlySentences would then run concurrently

State waiver of primary jurisdictionState waiver of primary jurisdiction Rarely doneRarely done Shumate v. U.S.Shumate v. U.S., 893 F. Supp. 137 (NDNY 1995), 893 F. Supp. 137 (NDNY 1995)

Common Law Escape or Common Law Escape or Statutory EscapeStatutory Escape

Automatic consecutive sentence?Automatic consecutive sentence?

Two Escape Offenses – the Two Escape Offenses – the ProblemProblem

There are two possible escape offenses in There are two possible escape offenses in South Carolina.South Carolina. Common law escape. Common law escape. State v. WalkerState v. Walker, 311 , 311

S.C. 8, 426 S.E.2d 337 (Ct. App. 1992)S.C. 8, 426 S.E.2d 337 (Ct. App. 1992) Statutory escape. SC Code Statutory escape. SC Code § 24-13-410.§ 24-13-410.

What are the rules for consecutive or What are the rules for consecutive or concurrent sentencing?concurrent sentencing?

Two Escape Offenses – the Two Escape Offenses – the SolutionSolution

Statutory escape. Statutory escape. Term of imprisonment must be consecutive to original Term of imprisonment must be consecutive to original

sentence and sentences previously imposed. SC sentence and sentences previously imposed. SC Code Code § 24-13-410(C).§ 24-13-410(C).

Will run consecutively unless order says otherwise.Will run consecutively unless order says otherwise.

Common law escape.Common law escape. Penalty comes from S.C. Code § 17-25-30 (sentence Penalty comes from S.C. Code § 17-25-30 (sentence

where no punishment is provided)where no punishment is provided) ““The court shall award such sentence as is The court shall award such sentence as is

conformable to the common usage and practice in conformable to the common usage and practice in this State, according to the nature of the offense, and this State, according to the nature of the offense, and not repugnant to the Constitution.”not repugnant to the Constitution.”

Will run concurrently unless order says otherwise.Will run concurrently unless order says otherwise.

Changes in Sentencing LawChanges in Sentencing Law

State v. Varner, 310 S.C. 264, 423 S.E.2d State v. Varner, 310 S.C. 264, 423 S.E.2d 133 (1992)133 (1992) Language of statute controlsLanguage of statute controls But if there is nothing in the statue:But if there is nothing in the statue:

If the penalty is greater under new statute, apply If the penalty is greater under new statute, apply law as of date of offenselaw as of date of offense

If the penalty is less under new statute, apply law If the penalty is less under new statute, apply law as of date of sentencingas of date of sentencing

Final ThoughtsFinal Thoughts

SCDC is not in court when defendant is SCDC is not in court when defendant is sentenced; we are not part of the plea sentenced; we are not part of the plea negotiationsnegotiations

Use the sentencing sheet to make Use the sentencing sheet to make Court’s intent clearCourt’s intent clear Use the “Other” part of the sentencing Use the “Other” part of the sentencing

sheetsheet

We are happy to help in preparing a We are happy to help in preparing a sentencing order to reflect Court’s intentsentencing order to reflect Court’s intent

THE ENDTHE END

Questions?Questions?