Understanding Prison Sentences

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Understanding Prison Sentences

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

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Call Us First

• Find out projected maxout and parole dates for a
  hypothetical sentence.
• We can review the sentencing order to ensure it
  will have the intended result.
• SCDC General Counsel
• 803-896-8508
• florian.chris_at_doc.sc.gov
• Internet sentence calculator http//www.doc.sc.go
  v

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Calculation of Release Dates

• Or
• Why a Manual Sentence Calculation Looks Like a
  Tax Return

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The Distinction between Parole Eligibility Date
and Maxout Date

• Parole Eligibility Date
• Earliest opportunity for release
• Derived from total sentence
• Determination made by parole board
• Offender continues to serve sentence under
  supervision by SCDPPPS
• Date calculated by SCDC based on statutory
  criteria as interpreted by SCDPPPS
• Maxout Date
• End of prison sentence
• Derived from incarcerative sentence
• May be followed by supervision by SCDPPPS

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Calculating a Maxout Date

• 3 types of offenses
• Parolable offenses
• 85 offenses
• Day-for-day

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Parolable Sentences

• Felony D and lesser offenses with no mandatory
  minimum
• Typical offender will serve between 51 and 65
  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
• Any offense punishable by 20 years or more
• 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
• Includes offenses with special parole eligibility
  provisions in S.C. Code 44-53-370 and -375.
• ALC is split on this issue
• On appeal to the Court of Appeals

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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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Sentence Calculation on the Internet

• Start at http//www.doc.sc.gov

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The Sentencing Order

• The Final Word on an Inmates SentenceMost of
  the Time

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Sentencing Order vs. Pronouncement, Part I

• 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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Sentencing Order vs. Pronouncement, Part II

• Tant v. SCDC, 408 S.C. 334, 759 S.E.2d 398 (2014)
• Oral pronouncement 10 5 5 5 5 5 5
  40 years
• 6 5-year terms to run consecutively to each other
• Or was it?
• Written order 10 5 15
• Silent as to whether the 5 year terms run
  consecutively to each other
• Letter from judge 40 years
• The sentencing sheets were signed by the judge
  and both attorneys without objection and are
  assumed to memorialize the judge's intention no
  less than what was pronounced from the bench. We
  see no reason why the Department should not be
  able to rely on unambiguous sentencing sheets as
  indicative of the intended sentence.
• Oral pronouncement and written order found
  ambiguous. Rule of lenity.
• Letter was a nullity because judge no longer had
  jurisdiction
• Boan limited to its facts

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Jail Time Credit

• The Most Common Source of Sentencing Problems

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Jail Time What credit counts?

• Full credit must be given for time served prior
  to trial and sentencing. S.C. Code 24-13-40
• Sentencing judges refusal to give credit is an
  error of law. State v. Boggs, 388 S.C. 314, 696
  S.E.2d 597 (Ct. App. 2010)
• Offender gets credit for time in custody even if
  arrest warrant for particular offense has not
  been served. Blakeney v. State, 339 S.C. 86, 529
  S.E.2d 9 (2009)

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Jail Time What does not count?

• Time on escape. S.C. Code 24-13-40
• Time before offense is charged. Crooks v. State,
  326 S.C. 171, 485 S.E.2d 374 (1997).
• Pre-conviction time if sentenced pursuant to YOA.
  S.C. Code 24-19-120.
• Time while serving a sentence for one offense
  while awaiting trial on another
• A subsequent concurrent sentence

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Subsequent Concurrent Sentences
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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Jail Time Courts Authority

• The Court may designate specific time for
  commencement of service of sentence. S.C. Code
  24-13-40
• SCDC is obligated to follow the courts order.
  Mention v. SCDC, unpublished S.Ct. order filed
  October 20, 1999.

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Jail Time Setting a Sentence Start Date
Sentence A
Sentence B

• Avoiding the subsequent concurrent sentence
  problem.
• 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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Jail Time Credit House Arrest

• Sentencing judge has discretion whether to award
  credit
• In every case in computing the time served by a
  prisoner, full credit against the sentence must
  be given for time served prior to trial and
  sentencing, and may be given for any time spent
  under monitored house arrest. S.C. Code
  24-13-40.
• If its on the written order, the defendant will
  get credit

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Youthful Offender Act

• How an Indeterminate Sentence Is Determined

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Eligibility for YOA

• Must be less than 25 years old at time of
  conviction
• Cannot be a violent offense
• Listed in SC Code 16-1-60
• Except for burglary 2nd, violent (more on this in
  a minute)
• Cannot be a Class A, B, C, or exempt felony
• Crimes punishable by 15 years or less

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Youthful Offender Program

• Access to additional programs
• Release determined by administrative release
  authority
• Offender serves a minimum period of incarceration
  corresponding to seriousness of offense
• 6 months to 12 months from assignment of ISO
• Offenses categorized by seriousness at
  http//www.doc.sc.gov/pubweb/research/offense_cate
  gories.pdf
• Administrative release authority
  approves/disapproves YOA parole
• Considers recommendations from community,
  victim(s), and institution

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YOA after Relase

• Supervision for at least one year
• Evaluated for unconditional discharge by release
  authority after one year

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YOA Special Rules for Burglary 2nd

• S.C. Code 24-19-10 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.

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YOA The Non-Conforming Sentence

• Non-conforming means the offender was not
  eligible for a YOA sentence, but the sentencing
  judge ordered YOA
• Offenders are typically incarcerated at least 3
  years

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Shock Incarceration Program
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Eligibility for Shock

• Eligibility is evaluated by SCDC
• No convictions for violent or no parole offenses
• No previous service at SCDC
• Physically and mentally able to participate

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Shock Program

• Ninety day incarcerative program
• Following incarceration offenders are released
  under parole supervision

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Addiction Treatment Unit

• Referrals and Available Programs

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Addiction Treatment Unit

• All offenders are screened for placement into the
  ATU
• If ordered by the sentencing judge, offender will
  have higher priority
• Otherwise, offenders who are referred are placed
  randomly as bedspace is available
• Offenders must have at least 9 months until their
  maxout to be eligible

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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

• Setser v. United States 132 S.Ct. 1463 (2012)
• Coordinate with federal authorities
• BOP must follow federal orders
• The federal sentencing judge can order federal
  sentence be concurrent or concsecutive
• Even before State sentencing!

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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 Law

• Does an amended penalty apply to offenses
  committed before the amendment?

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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
• State v. Dawson, 402 S.C. 160, 740 S.E.2d 501
  (2013)
• 2010 Omnibus Act Savings clause unambiguously
  detail the Act's prospective application

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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?