Andrew Fulkerson, JD, PhD

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Andrew Fulkerson, JD, PhD Southeast Missouri
State University Criminal Procedure Chapter
14 After Conviction
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After Conviction

• Before conviction, constitutional rights apply to
  fullest extent
• After conviction, fewer rights
• No presumption of innocence
• Presumption of regularity
• Burden of proof shifts to D to show by clear and
  convincing evidence that there was error

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After Conviction

• No constitutional right to appeal,
• But all states and federal courts have rights to
  appeal.

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Sentencing

• Should punishment fit the crime or the criminal?

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Types of Sentencing

• Determinate sentencing
• Fixed sentences
• Puts sentencing authority in control of
  legislature

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Types of Sentencing

• Indeterminate sentencing
• Tailors punishment to the needs of the offender
• Sentencing authority in hands of judge and parole
  board

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Sentencing Authority

• American legal system has used three institutions
  to exercise power in sentencing offenders
• Legislatures
• Courts
• Administrative agencies

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Legislative Sentencing Model

• Legislature sets penalty for each offense
• Little regard for individual characteristics of
  offender
• Removes discretion from judges and parole
  boards, but does not eliminate problems from
  prejudicial laws that impact certain groups.

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Judicial Sentencing Model

• Judge sets sentence within broad range set by
  legislature
• Legislature grades offenses and sets range for
  sentence for each level of offense.
• Judge sentences within that range

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Administrative Sentencing Model

• Legislature sets range for level of offense
• Judge sets maximum sentence for offender
• Administrative agency (parole board) sets release
  date (may have minimum percentage to serve or
  may be totally indeterminate)

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Other Influences

• Plea bargaining
• Charge bargaining

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Guidelines and Mandatory Minimum Sentences

• Indeterminate sentencing, good time, parole
  remain part of system
• Fixed sentencing has grown tremendously

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Guidelines and Mandatory Minimum Sentencing

• Fixed sentencing forms
• Sentencing guidelines
• Mandatory minimum sentences

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Goals of Fixed Sentencing

• Uniformity similar sentence for similar crime
• Certainty (truth-in-sentencing)- offender,
  victim, society know how long defendant will
  serve.
• Retribution, deterrence, incapacitation
  rehabilitation is not a goal

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Sentencing Guidelines

• Sentencing commission sets narrow range of
  penalties
• Judge must sentence within this range.
• Sentences are presumptively incarceration or
  probation.
• Judge may depart from guideline sentence, must
  give written reasons
• Factors such as prior history, value of property
  taken, extensive planning, cooperation with govt,
  etc, affect the guidelines and departure

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Sentencing Guidelines

• Ewing v. California, 538 U.S. 11 (2003)

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Sentencing Guidelines

• Blakely v. Washington, 124 S.Ct. 2531 (2004)

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Mandatory Minimum Sentences

• Another type of fixed sentence.
• Judge must sentence defendant to a minimum
  sentence
• May sentence to more within the statutory range
• But may not sentence to any less period of
  incarceration

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Mandatory Minimum Sentences

• Goals of mandatory minimum sentences
• retribution
• incapacitation
• deterrence

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Offenders Rights at Sentencing

• Upon conviction, defendant becomes a convicted
  offender
• Constitutional protections are intended to
  prevent abuse of persons rights during trial.
• These protections do not apply to same extent
  after conviction.

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Offenders Rights at Sentencing

• Right to confront witnesses applies at sentencing
• See Apprendi-Blakely
• Pre-sentence reports include broad range of
  background information
• D has right to review pre-sentence report and to
  contest inaccuracies
• Application of Apprendi-Blakely???

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Offenders Rights at Sentencing

• Judge may consider Ds conduct during trial
• D retains right to counsel at sentencing

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Offenders Rights At Sentencing

• Equal protection considerations
• Violates equal protection to fine defendants, but
  convert fine to jail if D cannot pay the fine.
• D must be given reasonable opportunity to pay
  fine.
• If D does not make reasonable effort to pay, then
  D can be sentenced to jail for non-payment.

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Offenders Rights at Sentencing

• 8th Amendment prohibition against cruel and
  unusual punishment
• This does not apply to length of sentence

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Sentencing

• Death penalty cases
• Death is different
• Jury must consider
• Aggravating circumstances
• Mitigating circumstances

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Appeals

• No Constitutional right to appeal a conviction
• States may provide an appeal process
• Since there is no right to appeal at state level,
  state does not have to provide appointed counsel
  for indigent person who does appeal.

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Appeals

• Differences between trial and appellate stages
• All Constitutional protections at trial to
  provide fair process in determination as to
  whether a person is guilty of a crime.
• The trial follows criminal charges instituted by
  the state against a person who is presumed
  innocent.
• Appeals usually instituted by a D who wishes to
  reverse a finding of guilt.
• State need provide no appeals process at all.

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Appeals

• Federal court and most states have two-tiered
  appellate system
• Intermediate appellate court.
• Supreme Court is the court of last resort.
• Appeal to the intermediate court is by right.
• Appeal to the Supreme Court is discretionary
• Writ of certiorari
• Court grants writ and hears the appeal only for
  cases which it finds to be of great importance.

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Scope of Review

• Mootness
• Raise or waive
• Plain error

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Plain Error Doctrine

• Exception to raise or waive is plain error
• Plain errors affecting substantial rights cause
  manifest injustice
• Court applies this doctrine rarely
• D bears the burden of proving the error was of
  such magnitude that it constitutes plain error.

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Guidelines for Finding Plain Error

• When evidence is closely balanced, court is more
  likely to find plain error
• Constitutional errors more than statutory or
  rule errors
• Where error could have easily been corrected at
  trial, appellate court is much less likely to
  find plain error.

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Habeas Corpus

• History
• Habeas corpus- common law remedy to challenge
  unlawful detention.
• Made a part of the U.S. Constitution in Article
  I, Section 9.
• May be suspended only in case of rebellion on
  invasion

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Habeas Corpus

• Provides mechanism for prisoners to challenge
  violation of rights in the course of their case.
• Focuses on violations of constitutional rights

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Habeas Corpus

• Limitations
• Prisoner must first exhaust available state
  remedies
• appeal
• state post-conviction relief procedures
• only then will federal court entertain petition
  for writ of habeas corpus

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Habeas Corpus

• Applications
• Wrongful conviction due to constitutional
  violation
• Improper loss of good-time
• Child custody cases

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Habeas Corpus

• State inmates
• Many states have habeas corpus statutes
• May file in federal court after exhausting state
  remedies
• Must allege a federal violation for federal
  jurisdiction
• However, Stone v. Powell, state inmates may not
  use 4th Amendment violations as basis for federal
  habeas jurisdiction if issue was fully considered
  by state appellate court.

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Habeas Corpus

• Right to counsel
• No right to counsel in federal habeas actions
• Inmate must prepare and file his own petition
• Some states have programs for assistance of
  counsel
• Exception inmates seeking habeas relief in death
  penalty cases are appointed counsel.

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Habeas Corpus

• Antiterrorism and Effective Death Penalty Act,
  1996
• 18 U.S.C. 2244
• Limits number of habeas petitions

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AEDPA, 1996

• 2d habeas petition dismissed unless
• Claim is based in new Constitutional argument
  from new SCOTUS case law, or
• New facts previously undiscoverable, and
• But for the error a different outcome