Beware of Helpful Advice from the DOC on Sentence Calculation
by: Rjohnson • January 6, 2012 • no comments
A Department of Corrections employee, Bethany Smith, recently wrote [an open letter] to courts and criminal attorneys, asking for assistance in keeping sentence calculations easy for the DOC. In particular, she asks that judgments include crime-seriousness levels and subcategory facts so that the correct earned-time credit can be calculated - because it is 20% for some crimes and 30% for others. She suggests that, if the detail is not provided, the DOC will have to ask for clarification from the courts, or ask for other documents, such as charging documents.
Of course, my desire to assist the DOC knows no bounds, and I'm sure that every OCDLA member feels the same way. But attorneys should be aware of the legal and tactical implications of the changes that Ms. Smith requests.
Ms. Smith notes a specific issue: that the earned-time credit is different for CS 7 Supplying Contraband (when the contraband includes firearms) compared with CS 6 Supplying Contraband, (with no firearms.) Suppose that the defendant is indicted for supplying contraband firearms (CS 7, 20% credit.) The plea offer specifies a departure sentence, but does not specify a crime-seriousness level.
If client accepts that offer, defense counsel should fill out the plea petition without specifying the contraband supplied and without specifying a crime-seriousness level. It is at least arguable that, by tendering the plea petition to the court, the plea-bargain is enforceable. It is surely enforceable if the court accepts the plea and imposes sentence. And at that point, the defendant is entitled to the higher earned-time credit for the less serious crime.
If counsel were to follow the DOC's request and try to specify the CS level in the plea agreement, the DA might balk, withdraw the offer, or insist on the higher CS level. That sounds awfully close to malpractice to me. It depends on a lot of factors, but it's probably better to be quiet about terms like that until the deal is struck, and maybe until the DOC complains later on. At the sentencing hearing, counsel could push for a CS level, but even then it might be safer to leave it undecided.
Ms. Smith suggests that the DOC would seek clarification from the court, including obtaining the charging document. In my view it is improper for the Department of Corrections to use the indictment to clarify that ambiguity, because the plea-bargain is defined by the parties agreement. E.g., State v. Heisser, 350 Or 12, 249 P3d 113, (2011) (a plea bargain is generally construed as a contract). Counsel should object at that point and argue that, under the terms of the bargain, the defendant is entitled to the lower CS level. The DOC should find that helpful, because the shorter sentence is less work for them.
