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Third Proportionality Post in a Row

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by: Ryan Scott • August 3, 2023 • no comments

There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor.

My first example can't be blamed on the prosecutor but rather the judge. When a defendant is sentenced on multiple counts, and the counts arise from the same criminal episode, the judge is supposed to sentence on the primary offense first, which is the offense with the highest crime seriousness level (CSL). So assume, for example, a defendant is charged with Assault in Second Degree and Burglary in the First Degree. The victim in both is the same. The CSL for both is 9, so either could be the "primary offense." The defendant has a criminal history score of C. If the Assault II is sentenced first, it is sentenced under M11, and a 70 month sentence is imposed, even though the gridblock is 56-60 months in prison. If the judge were to run the burglary sentence consecutively, the shift-to-I rule would kick in, and the defendant would fall into the 9I gridblock, with a presumptive sentence of 34-36 months. In total, the defendant would get 104-106 months in DOC custody.

But if the judge determines that the Burglary is the primary offense, he gets 56-60 months on the burglary, and he gets the same 70 M11 time on the assault, even if run consecutively, so his total sentence is 126-130 months in DOC custody.

Because the higher sentence is based not on anything unique about the defendant or the circumstances of the case, but just the creativity of the court, I believe you should invoke Article I, section 16, and object to the sentence.

Back to prosecutors. Ever since State v. Dulfu, prosecutors can achieve a higher sentence on multiple counts of ECSA I by not charging a theory of "possession with intent to distribute," something they used to do quite regularly. Instead, the defendant is only charged with duplication, which is often the result of downloading the images. In other words, the state can get a greater sentence by not charging the defendant as a distributor but only as an end user.

Unlawful Use of a Weapon is another crime where the state will often go forward on fewer alternative theories of guilt, because fewer theories can often prohibit merger and allow consecutive sentences.