Understanding Prison Sentences

Chris FlorianDeputy General Counsel

South Carolina Department of Corrections

Call Us First

• Find out projected maxout and parole dates for a hypothetical sentence.

• We can review the sentencing order to ensure it will have the intended result.

• SCDC General Counsel: • 803-896-8508• florian.chris@doc.sc.gov• Internet sentence calculator: http://www.doc.sc.gov

Calculation of Release Dates

Or

Why a Manual Sentence Calculation Looks Like a Tax Return

The Distinction between Parole Eligibility Date and Maxout Date• Parole Eligibility Date

• Earliest opportunity for release• Derived from total sentence• Determination made by parole board• Offender continues to serve sentence under supervision

by SCDPPPS• Date calculated by SCDC based on statutory criteria as

interpreted by SCDPPPS• Maxout Date

• End of prison sentence• Derived from incarcerative sentence• May be followed by supervision by SCDPPPS

Calculating a Maxout Date

• 3 types of offenses• Parolable offenses• 85% offenses• Day-for-day

Parolable Sentences

• Felony D and lesser offenses with no mandatory minimum• Typical offender will serve between 51% and 65% before maxout

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

• 20 days per month if disciplinary free• Can lose earned credits for a disciplinary offense

• Earned Work/Education Credits – § 24-13-230• Amount varies• Maximum is 1 day for every 2 days employed or enrolled

Service Time Good Time Work Credits

85% Sentences

• “No parole” offenses S.C. Code § 24-13-100• Defined as Class A, B, or C felonies, or offenses exempt from classification• Any offense punishable by 20 years or more

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

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

• 6 days per month if participating

• Includes offenses with special parole eligibility provisions in S.C. Code 44-53-370 and -375.

• ALC is split on this issue• On appeal to the Court of Appeals

Service Time Good Time Work Credits

Day-for-day offenses

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

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

• Example: Nelson v. Ozmint, 390 S.C. 432, 702 S.E.2d 369 (2010)• Requires day-for-day service on CDV 3rd.

Service Time

Sentence Calculation on the Internet• Start at http://www.doc.sc.gov

The Sentencing OrderThe Final Word on an Inmate’s Sentence…Most of the Time

Sentencing Order vs. Pronouncement, Part I• Boan v. State, 388 S.C. 272, 695 S.E.2d 850 (2010)

• Oral pronouncement: 20 years plus 10 years consecutive

• Written order: 30 years plus 10 years consecutive• “In a situation such as the one on appeal, due

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

Sentencing Order vs. Pronouncement, Part II• Tant v. SCDC, 408 S.C. 334, 759 S.E.2d 398 (2014)

• Oral pronouncement: 10 + 5 + 5 + 5 + 5 + 5 + 5 = 40 years• 6 5-year terms to run consecutively to each other• Or was it?

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

• Letter from judge: 40 years• “The sentencing sheets were signed by the judge and both attorneys

without objection and are assumed to memorialize the judge's intention no less than what was pronounced from the bench. We see no reason why the Department should not be able to rely on unambiguous sentencing sheets as indicative of the intended sentence.”

• Oral pronouncement and written order found ambiguous. Rule of lenity.• Letter was a nullity because judge no longer had jurisdiction• Boan limited to its facts

Jail Time CreditThe Most Common Source of Sentencing Problems

Jail Time – What credit counts?

• Full credit must be given for time served prior to trial and sentencing. S.C. Code 24-13-40

• Sentencing judge’s refusal to give credit is an error of law. State v. Boggs, 388 S.C. 314, 696 S.E.2d 597 (Ct. App. 2010)

• Offender gets credit for time in custody even if arrest warrant for particular offense has not been served. Blakeney v. State, 339 S.C. 86, 529 S.E.2d 9 (2009)

Jail Time – What does not count?• Time on escape. S.C. Code 24-13-40• Time before offense is charged. Crooks v. State, 326

S.C. 171, 485 S.E.2d 374 (1997).• Pre-conviction time if sentenced pursuant to YOA.

S.C. Code 24-19-120.• Time while serving a sentence for one offense while

awaiting trial on another• A subsequent concurrent sentence

Subsequent Concurrent SentencesSubsequent Concurrent Sentences

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.

Jail Time – Court’s Authority

• The Court may designate specific time for commencement of service of sentence. S.C. Code 24-13-40

• SCDC is obligated to follow the court’s order. Mention v. SCDC, unpublished S.Ct. order filed October 20, 1999.

Jail Time – Setting a Sentence Start Date

• Avoiding the subsequent concurrent sentence problem.• Set sentence start date to same start date as sentence already being

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

Sentence A

Sentence B

Jail Time Credit – House Arrest

• Sentencing judge has discretion whether to award credit:• In every case in computing the time served by a prisoner, full credit against

the sentence must be given for time served prior to trial and sentencing, and may be given for any time spent under monitored house arrest. S.C. Code 24-13-40.

• If it’s on the written order, the defendant will get credit

Youthful Offender ActHow an Indeterminate Sentence Is Determined

Eligibility for YOA

• Must be less than 25 years old at time of conviction• Cannot be a violent offense

• Listed in SC Code 16-1-60• Except for burglary 2nd, violent (more on this in a

minute)• Cannot be a Class A, B, C, or exempt felony

• Crimes punishable by 15 years or less

Youthful Offender Program

• Access to additional programs • Release determined by administrative release

authority• Offender serves a minimum period of incarceration

corresponding to seriousness of offense• 6 months to 12 months from assignment of ISO• Offenses categorized by seriousness at:

http://www.doc.sc.gov/pubweb/research/offense_categories.pdf• Administrative release authority approves/disapproves YOA

parole• Considers recommendations from community, victim(s), and

institution

YOA after Relase

• Supervision for at least one year

• Evaluated for unconditional discharge by release authority after one year

YOA: Special Rules for Burglary 2nd

• S.C. Code 24-19-10 has a 3-year mandatory minimum for YOA 2nd degree burglary sentences.

• Both violent and non-violent.• Persons convicted of 2nd degree burglary and

sentenced under YOA must serve 3 years, day-for-day.

YOA: The Non-Conforming Sentence

• Non-conforming means the offender was not eligible for a YOA sentence, but the sentencing judge ordered YOA

• Offenders are typically incarcerated at least 3 years

Shock Incarceration Program

Eligibility for Shock

• Eligibility is evaluated by SCDC• No convictions for violent or no parole offenses• No previous service at SCDC• Physically and mentally able to participate

Shock Program

• Ninety day incarcerative program• Following incarceration offenders are released

under parole supervision

Addiction Treatment UnitReferrals and Available Programs

Addiction Treatment Unit

• All offenders are screened for placement into the ATU• If ordered by the sentencing judge, offender will have higher priority• Otherwise, offenders who are referred are placed randomly as

bedspace is available• Offenders must have at least 9 months until their maxout to be

eligible

Concurrent Federal and State Sentences

Will they really run concurrently?

Concurrent Federal and State Sentences:The Problem

• Will they really run concurrently?• The federal rule: 18 USC § 3585• Federal sentence starts when defendant arrives in

federal custody• BOP does not defer to State sentencing order• BOP typically accepts custody only if they have

“primary jurisdiction”• Primary jurisdiction is the first jurisdiction to make arrest.

Concurrent Federal and State Sentences:The Solution

• Setser v. United States 132 S.Ct. 1463 (2012)• Coordinate with federal authorities

• BOP must follow federal orders• The federal sentencing judge can order federal sentence

be concurrent or concsecutive• Even before State sentencing!

Common Law Escape or Statutory Escape

Automatic consecutive sentence?

Two Escape Offenses – the Problem

• There are two possible escape offenses in South Carolina.• Common law escape. State v. Walker, 311 S.C. 8, 426 S.E.2d 337 (Ct. App.

1992)• Statutory escape. SC Code § 24-13-410.

• What are the rules for consecutive or concurrent sentencing?

Two Escape Offenses – the Solution

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

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

• Will run consecutively unless order says otherwise.• Common law escape.

• Penalty comes from S.C. Code § 17-25-30 (sentence where no punishment is provided)

• “The court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.”

• Will run concurrently unless order says otherwise.

Changes in LawDoes an amended penalty apply to offenses committed before the

amendment?

Changes in Sentencing Law

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

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

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

• State v. Dawson, 402 S.C. 160, 740 S.E.2d 501 (2013)

• 2010 Omnibus Act Savings clause unambiguously detail the Act's prospective application

Final Thoughts

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

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

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

THE END

• Questions?