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New Ala. sentencing guidelines to impact non-violent offenders

Official: "This isnt to say that no non-violent offenders will go to prison. Its just to be more selective in determining which non-violent offenders go to prison."

By Matt Elofson
Dothan Eagle

DOTHAN, Ala. — Under a new sentencing guideline system, which officially goes into effect the first of next month, a 32-year-old Dothan man faced a lighter sentence for the felony drug charges he recently pleaded guilty to in court.

Court records show Roderick Dewayne Ware pleaded guilty last week to three felony marijuana possession charges in front of Circuit Court Judge Brad Mendheim. Records show Ware received an eight-year prison sentence for each of the three charges, which were ordered to be served concurrently with each other.

Records also show Ware faced a sentence of 15 to 99 years or life in prison for each charge based on the habitual offender act. Records show Ware had three prior felony marijuana possession convictions, all of which were from 2011.

Attorney T.J. Haywood, who represented Ware, said his client faced a sentence under the new guidelines of something like 40 to 90 months after pleading guilty to the felony marijuana charges.

“He got an eight-year sentence which was less than the minimum of the habitual offender act,” Haywood said. “The high end of the guidelines was much less than the bottom end of the habitual offender act.”

But Haywood said a defendant’s prior criminal history under the new guidelines would have less to do with the length of sentence and more to do with whether they get probation or prison time. Ware was ordered to serve out his sentence with the state Department of Corrections.

Several officials within the legal field had varying opinions on the purpose and benefits of the new sentencing guidelines.

Bennet Wright, the executive director of the Alabama Sentencing Commission, said the goal behind the modified sentencing guidelines was to help address overcrowding in the state prison system.

“One of the primary purposes is to make sure that in Alabama, the Department of Corrections has adequate beds to house the violent offenders,” he said. “I would definitely say that one of the intended purposes is for fewer non-violent admissions to prison, that’s in order to reserve scarce prison resources to house violent offenders. This isn’t to say that no non-violent offenders will go to prison. It’s just to be more selective in determining which non-violent offenders go to prison.”

Joseph Colquitt, chairman of the Alabama sentencing commission, called the purpose of the guidelines a means to eliminate unwarranted sentencing disparity.

Colquitt, who is a retired judge and law professor at the University of Alabama, wrote in an e-mail, history shows that like offenders committing like offenses may well be punished by the imposition of significantly different sentences.

“Sentences imposed by different judges or in different places or at different times, or prosecuted by different prosecutors quite commonly are ‘ different,’” Colquitt wrote. “In non-structured settings, sentences for like crimes by like offenders can range from the very lenient to the very severe. The goal of structured sentencing is to eliminate unwarranted disparity and create more uniformity while permitting discretion if factors warrant different sentences.”

Guidelines

Houston County Presiding Circuit Court Judge Michael Conaway called the upcoming sentencing changes a transition from voluntary to presumptive sentencing for non-violent offenses.

Wright said the new sentencing guidelines fall in the middle of three sentencing methods, which range from voluntary to presumptive to mandatory sentencing guidelines.

Colquitt said under the voluntary sentencing guidelines, which were started in 2006, judges could choose to use or not to use them when issuing sentences in court. But he said legislators chose to move forward by directing the sentencing commission toward the presumptive sentencing method for the courts.

“Presumptive is in between voluntary and mandatory,” Wright said. “It’s a little bit stronger than a recommendation, and it’s actually presumed to be the sentence unless aggravating or mitigating factors exist.”

Wright said all violent offenses, including any burglary or sex crimes, are not part of the presumptive sentencing guidelines.

“This is for select drug and property offenses,” Wright said. “This has no effect on violent offense sentencing whatsoever.”

According to an Alabama Sentencing Commission report for 2013, drug and property convictions have consistently outnumbered convictions against a person each of the past several years. The report also cited unlawful possession of a controlled substance as the most common felony conviction by an overwhelming margin.

Wright said if aggravating factors are proven by the prosecution the court can go outside the guidelines to issue its sentence. In contrast he said the court similarly could go outside the guidelines if mitigating factors are proven by the defense.

For example, Wright said a first time offender convicted of a felony theft charge could be looking at a non-prison sentence, unless the prosecution has proven aggravating factors exist, such as the amount of money stolen in the case was unusually high or the victim or victims were elderly people.

As part of the presumptive guidelines both first and second-degree manufacturing of a controlled substance were added when compared to the voluntary version of the guidelines.

But Wright also said the charge of drug trafficking remained excluded from the guidelines even though it also has the same classification of felony as first-degree manufacturing. Both drug trafficking and first-degree manufacturing a controlled substance are class A felony crimes, which carry possible punishments of 10 to 99 years or life in prison, like murder. Wright said drug trafficking was excluded from the guidelines because it includes several different drugs and drug amounts while manufacturing a controlled substance primarily deals with the making of methamphetamine.

Wright also said the prosecution does not always have to prove the aggravating factor, that the defendant could admit the factor exists in the case, which then enables the court to issue a sentence outside the guidelines.

A few mitigating factors cited by Wright that could be used by defense counsel include the defendant having a strong “positive” support group, the defendant has entered, or is already involved in or completed a drug treatment program, defendant was honorably discharged from the U.S. Armed Forces, if the defendant has assisted the prosecution in their investigation and or the defendant has paid back some of or all the restitution in the case.

“There’s a presumption the court will follow the guidelines,” Conaway said. “There will be a narrow standard of review for departure of the presumptive sentencing recommendations. There can be departures, make no mistake about that.”

Colquitt also said the Alabama Sentencing Commission will host a training seminar in Dothan on Sept. 23. District Attorney Doug Valeska said he understood the seminar would be held at the Houston County Courthouse in the grand jury room at 1:30 p.m.

Conaway said the judges will all receive manuals in regard to the new sentencing guidelines, which they will distribute the local defense bar and district attorneys association.

“All of this is brand new so as judges we will receive training from the sentencing commission as to their recommendations,” Conaway said. “It’s a new process, and the law is constantly changing. It’s evolving every day.”

Impact

Haywood agreed with Colquitt that the new guidelines would likely lead to more uniformity in sentencing across the state.

“I think it’s going to be beneficial in the fact there’s not going to be quite so much disparity in sentencing,” Haywood said. “People with similar charges and backgrounds are going to be sentenced closed to the same amongst judges.”

Haywood also said the new guidelines will help him explain to his clients the potential punishment they face. He said with the guidelines the window punishment will be much smaller for most of the non-violent offenses.

Haywood serves as a contract attorney and one of two lawyers who receive many of the court appointed cases for Circuit Court Judge Brad Mendheim.

For example Haywood said the way he understands it someone facing a sentence for a second-degree theft charge, a Class C felony that typically carries a sentence range of one to 10 years, would now face a sentence of something like 13 to 31 months. He said, of course that’s someone with no criminal history.

“I think it was to have more uniformity across all sentencing with all the judges across the state and therefore more prediction with prison overcrowding,” Haywood said.

Attorney Eric Davis said the guidelines could result in more non-prison recommendations for first-time drug offenders.

“I think it will help because the habitual offender act is so harsh, particularly on drug offenders,” Davis said. “If more money was spent on treatment than keeping them in prison there would be fewer repeat offenders.”

Davis said he believes departures outside the guidelines are meant to be rare. He also said he doesn’t believe the new guidelines will impact the court’s decisions to determine concurrent or consecutive prison time.

Davis serves as one of two contract lawyers who receive most of the court appointed criminal cases in front of Circuit Court Judge Larry Anderson.

Davis also said the guidelines look at felony marijuana charges less than felony controlled substance charges, but when the habitual offender act was applied they were treated equally.

“I think it’s progress to what’s already an over stressed court system,” Davis said. “Hopefully it will reduce the number of trials. My opinion is they want to reduce the (prison) population for non-violent offenders without appearing to be soft on crime. Alabama has got to do something about the prison population or we’re going to be California Jr. here, and have to let people out.”

Valeska said if the modified guidelines stemmed from prison overcrowding issues the number of convicted drug offenders already in the state prison system is small compared to violent offenders.

“They want sentences reduced, and lowered so they don’t go to prison or they go to prison for less time and I don’t believe that’s the goal of the people and victims of the state of Alabama,” Valeska said. “There are other ways to deal with the funding of the Department of Corrections by collecting these court costs and fines that are just sitting out there that are not collected.”

Valeska said the new guidelines will likely lead to more work for his office, including more paperwork of filing of legal motions.

He said the new guidelines would likely result in more jury trials and fewer defendants accepting guilty pleas in court. He said because the guidelines will more specifically narrow down the type of the sentence the defendant could face, they’ll want to go trial.

Valeska also said he understands every time his office wants to allege an aggravating factor in the case they have to prove it to a separate jury after the defendant has either already been convicted or pleaded guilty. He said prosecutors have to file their intention to seek an aggravating factor in the case at least a week prior to the start of the trial date.

McClatchy-Tribune News Service

“I think the key is it’s new. We’ll deal with it. There will be problems with it,” Valeska said. “I’m confident with the leaders in the Senate and the House, they will be willing to step up and address those issues.”




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