Understanding How Prison Sentences Work

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Understanding How Prison Sentences Work

• Chris Florian
• Deputy General Counsel
• South Carolina Department of Corrections

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Call Us First

• We can help draft the proposed sentencing order
  to ensure it will have the intended result.
• SCDC General Counsel
• 803-896-8508
• florian.chris_at_doc.sc.gov

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The Maxout Date

• 4 types of sentences
• Parolable offenses
• 85 offenses
• Day-for-day
• YOA sentences
• Substantial difference in percentage of time
  offender would serve until maxout

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Parolable Sentences

• Felony D and lesser offenses with no mandatory
  minimum
• Typical offender will serve between 60 and 70
  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
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85 Sentences

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

Service Time
Good Time
Work Credits
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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
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YOA Sentences

• Targeted institutional programming
• Administrative Release Authority
• Still in development
• Panel of 3-5 members to approve YOA parole
  release and revocation
• Considers 3 factors
• Severity of crime as measured by Release Matrix
• Release Recommendations from community, victim(s)
  and institution
• Risk Assessment Score as measured by Global Risk
  Assessment Device (GRAD)
• Intensive Supervision Program

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Sentence Calculation on the Internet

• Start at http//www.doc.sc.gov

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Common Pitfalls to Watch Out For
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Conflicting Sentencing Orders

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

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Conflicts between Pronouncement of Sentence and
Written Order

• 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.

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But when the situation is reversed

• Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct.
  App. 2011) (petition for cert. pending)
• Oral pronouncement 10 5 5 5 5 5 5
  40 years
• 6 5-year terms to run consecutively to each other
• Written order 10 5 15
• Silent as to whether the 5 year terms run
  consecutively to each other
• Under ordinary circumstances, SCDC must
  determine the sentence imposed by the trial court
  from the sentencing sheets. If there is some
  ambiguity in the sentencing sheets, SCDC may
  examine the transcript of record to determine the
  intent of the sentencing judge.
• What about Boan?
• There are some situations in which SCDC may look
  beyond unambiguous sentencing sheets.

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Pre-Conviction Jail Time

• Subsequent ConcurrentSentences

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Subsequent Concurrent SentencesThe Problem

• The jail time statute - SC Code 24-13-40
• Automatic credit for time served before
  sentencing
• No credit for home detention. State v. Higgins,
  357 S.C. 382, 593 S.E.2d 180 (Ct. App. 2004)
• With 2 exceptions
• Escape
• Already serving a sentence for another offense
• The Court has the power to award a specific
  amount of jail time under the statute

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Subsequent Concurrent SentencesThe Problem
Sentence A
Sentence B

• Under the statute (SC Code 24-13-40), the
  second sentence starts on the date of sentencing!
• Running them concurrently doesnt change the jail
  time credit.

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The Solution
Sentence A
Sentence B

• Use the Courts power to award a specific amount
  of jail time
• Set sentence start date to same start date as
  sentence already being served
• Indicate in the Other section of the sentencing
  sheet

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Youthful Offender Act Mandatory Minimums

• Second-Degree Burglary

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YOA Sentences for Second-Degree BurglaryThe
Problem

• S.C. Code 24-19-10 now 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.
• Disqualifies these inmates for the shock
  incarceration program.

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YOA Sentences for Second-Degree BurglaryThe
Solution

• Mandatory minimum does not apply to other related
  offenses.
• Where there are multiple offenses
• Seek incarcerative sentence on other offenses
• Ask for adult offender sentence instead of YOA
• No mandatory minimum
• Still could be eligible for shock incarceration
• But offender would lose benefits of YOA

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Concurrent Federal and State Sentences

• Will they really run concurrently?

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Concurrent Federal and State SentencesThe
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.

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Concurrent Federal and State SentencesThe
Solution

• Encourage coordination with federal authorities
• BOP gives greater deference to federal orders
• BOP has power to designate SCDC as a facility for
  service of the federal sentence.
• 18 USC 3621.
• Sentences would then run concurrently
• State waiver of primary jurisdiction
• Rarely done
• Shumate v. U.S., 893 F. Supp. 137 (NDNY 1995)

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Common Law Escape or Statutory Escape

• Automatic consecutive sentence?

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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?

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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.

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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

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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 Courts intent
  clear
• Use the Other part of the sentencing sheet
• We are happy to help in preparing a sentencing
  order to reflect Courts intent

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THE END

• Questions?