It’s a question every attorney gets asked in almost every case where jail time is a possibility: “How many years am I looking at?" Usually, clients seem to expect a simple answer: so many days, months, or years.
A variation on this question is, “What is the worst case scenario?"
But the actual answer – rather, the calculation that leads to the actual answer – is nowhere near that simple. There was a time when it was. Before, if a person was charged with a Class 1 felony, for example, and asked how much time he was looking at, the attorney would see that the felony charged was a single Class 1 felony and would then be able to say that it was anywhere between 4-15 years, based whether or not the judge was lenient or took a harder stance at sentencing.
However, due to various acts of the legislature that affect sentencing, as well as other administrative guidelines set in place by various prison agencies, the sentencing calculation is nowhere near that simple now and requires several steps in order to arrive at a good estimate of the potential sentence range.
In Illinois, an attempt to determine an accurate sentencing range on the state level follows this outline:
1.A review of the charge(s).
The attorney needs to know what you’re charged with, whether it is a felony or a misdemeanor, and how many counts. This information will be found in a charging instrument known either as an Indictment or an Information, or in the case of a misdemeanor, a Complaint. All are methods for the State of Illinois to charge a criminal defendant with a crime. The Indictment/Information lists the various counts a person is charged with, as well as the name of the offense and the statute under which the person is being charged. The counts may carry the same, similar, or different sentence ranges. A misdemeanor Complaint does the same.
The Indictment/Information/Complaint is the first step, and provides the attorney with the basic information he or she needs in order to analyze a person’s case and start doing a sentence calculation.
2.Find the statute(s) a person is charged under.
The Indictment/Information/Complaint will contain a statutory cite. This statute can be found in the Illinois Compiled Statutes, abbreviated as ILCS. An attorney will pull a statutory cite from the Indictment/Information/Complaint and look it up in the ILCS. That way, the attorney is able to go straight to the primary source (laws in Illinois) and learn about the crime being charged, its elements, and many more pertinent pieces of information that relate to the allegations.
3.Look in the “Sentence" section of the applicable statute(s).
One such example of pertinent information found in the statutes is what class the felony or misdemeanor is. This information is found in the Sentence portion of that statute. In that paragraph, it will say whether a felony being charged is a Class 4, Class 3, Class 2, Class 1, Class X, or Murder. The reason this is important is because each Class has a different sentence range. The following chart reflects sentencing ranges in Illinois for the different classes:
Class 4 = 1-3 years
Class 3 = 2-5 years
Class 2 = 3-7 years
Class 1 = 4-15 years
Class X = 6-30 years (non-probationable)
Murder = 20-life
But this is not the answer to the question. This is a starting point.
After all, for a Class 4, the sentencing range is 1-3 years for one count. If there are two Class 4 felonies, for example, the calculation becomes more complicated. And due to the way many prosecutors charge crimes, it is rare that a person will be charged with a single felony count.
4.Look at whether or not there is a mandatory minimum.
Since it is quite common for one person to be charged with multiple counts, even for technically the same ‘act,’ the attorney must first determine the Class of each count, and then determine whether there exists a mandatory minimum. Mandatory minimum means that prison or jail time is required; that is, probation is not an available sentence option for the Judge.
Some charges involve a mandatory minimum of a certain number of years served in prison. For example, an Unlawful Use of a Weapon – Use by a Minor involves a 1 year mandatory minimum of time served. This is something that varies by statute and must be considered by the attorney before he or she can even start to answer the client’s question about how much time must be served.
There are two sections to determine whether or not there exists a mandatory minimum for the particular crime(s) being charged: either the Authorized Disposition section found at 730 ILCS 5/5-5-3 or the general Disposition section found at 730 ILCS 5/5-4.5-15. From there, a determination as to mandatory minimums can be made.
5.Look to see if the sentences are to be served consecutively or concurrently.
Another consideration any experienced criminal defense attorney will look up is whether or not the sentences for each count are to be served consecutively or concurrently. For example, say that a person is charged with two counts of a Class 4 felony, each one carrying a sentence of 1-3 years. If the State has offered 1 year on each count, is that to be served consecutively or concurrently? If consecutively, the person will serve the first 1 year sentence, and then the second 1 year sentence – not 1+1 = 2. If concurrently, that means the 1 year on each of the two counts runs together (at the same time), so it would be 1 year total.
This is important information to know, as some crimes are such that the legislature has decided that if a person pleads guilty to or is sentenced on more than one count, then those sentences MUST run consecutively. An example of this is Possession of Child Pornography. If that is the case, then the attorney is limited in his or her arguments during sentencing due to the act of the legislature. If not, then the attorney has more latitude in his or her arguments before the judge at that point in the case.
This is why attorneys ask (or, should ask) about a client's criminal background, because that knowledge puts the attorney in gear as far as whether or not the Judge will take into consideration extended term sentencing.
Section 5-8-2 outlines several factors that will cause the sentence to be doubled as an extended term sentence. These factors include: if the client was convicted in Illinois for a felony of the same or greater class within ten years preceding the instant (current) case; if a client is charged with of any felony and the court finds that the felony was accompanied by brutalization or excessive cruelty; if the client is charged with a felony against a person under 12 or over 60 or the property of such people, or a person that was handicapped, or in the case of torture or kidnapping, or the theft of corpses; if the defendant is believed to be the ringleader in a criminal enterprise composed of more than two other people; when the offense involves a firearm with a laser sight attached; when the defendant served time in juvenile detention for a crime that, were he charged as an adult, would have been a Class X or Class 1 when such a case occurred within 10 years before the current case; when the defendant used an animal to attack a law enforcement officer.
A more complete list of the factors and reasons that a Court may impose extended term sentencing is found in 730 ILCS 5/5-5-3.2. This is the section the attorney must analyze and compare with the factors of the case, after having done all of the previous calculations discussed in this guide, in order to arrive at an approximate answer.
7.Look at if there is credit for time served, and what percentage of time must be served.
Finally, having a good idea of what class it is, what range the sentence will fall in, whether there is any mandatory minimum that must be served, and if the sentences are to be served consecutively or concurrently, the attorney must then turn his or her attention to the percentage of the sentence that must be served, and credit for time served, if any. If a client has been in custody for any length of time, that day is credited toward the final sentence given, even if it was only a few hours in a holding cell, which amounts to 1 day of credit.
In order to determine what percentage of the sentence must be served, the attorney must turn to the section of the ILCS titled, “Rules and Regulations for Early Release." In this section, found at 730 ILCS 5/3-6-3, the attorney will be able to determine from the language of the statute whether or not a sentence for a particular crime is to be served at 100%, 85%, or 50%.
Certain crimes are, for example, known as fifty-percenters. So if the State makes an offer or the judge makes a ruling as to sentence of 3 years on a single Class 1 felony, and if that particular felony is a fifty-percenter, then the person will only serve 1.5 years.
The rules for federal sentencing and the analysis required are considerable different than at the state level. Federal sentencing calculations requires a study of the United States Sentencing Guidelines in connection with the case, as well as point additions and deductions based on various factors found in the Guidelines. Various federal statutes regarding mandatory minimums and consecutive versus concurrent also must be considered, as must case law interpreting the applicable statutes.
As has been illustrated, the calculation for determining how much time a person will actually serve is quite complex. It is a step-by-step analysis that an experienced criminal defense attorney must do, and there is surely no simple answer to the question we are asked time and time again, “Hey, how much will I have to do?"
Just as important as the sentence calculation is the alternative sentencing options that may be available. Alternative sentencing options are those which avoid prison or jail time; avoid a conviction being entered in the defendant’s records; allow expungement; and provide educational and counseling in regards to the crimes charged.
This Avvo Guide has been prepared by Associate Attorney Huma Rashid and approved by Raymond Wigell of the Law Offices of Raymond G. Wigell, Ltd. Copyright 2013 Law Offices of Raymond G. Wigell, Ltd.