Understanding How Prison Sentences Work Chris Florian Deputy General Counsel South Carolina Department of Corrections

Call Us First We can help draft the proposed sentencing order to ensure it will have the intended result. SCDC General Counsel: 803-896-8508 florian.chris@doc.sc.gov

The Maxout Date 4 types of sentences Parolable offenses 85% offenses Day-for-day YOA sentences Substantial difference in percentage of time offender would serve until maxout

Parolable Sentences Felony D and lesser offenses with no mandatory minimum Typical offender will serve between 60% and 70% 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

85% Sentences “No parole” offenses S.C. Code § 24-13-100 Defined as Class A, B, or C felonies, or offenses exempt from classification 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 Service Time Good Time Work Credits

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

YOA Sentences Targeted institutional programming Administrative Release Authority Still in development Panel of 3-5 members to approve YOA parole release and revocation Considers 3 factors Severity of crime as measured by Release Matrix Release Recommendations from community, victim(s) and institution Risk Assessment Score as measured by Global Risk Assessment Device (GRAD) Intensive Supervision Program

Sentence Calculation on the Internet Start at http://www.doc.sc.gov

Common Pitfalls to Watch Out For

Conflicting Sentencing Orders The sentencing judge pronounces one sentence and writes a different sentence

Conflicts between Pronouncement of Sentence and Written Order 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.”

But when the situation is reversed… Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct. App. 2011) (petition for cert. pending) Oral pronouncement: 10 + 5 + 5 + 5 + 5 + 5 + 5 = 40 years 6 5-year terms to run consecutively to each other Written order: 10 + 5 = 15 Silent as to whether the 5 year terms run consecutively to each other “Under ordinary circumstances, SCDC must determine the sentence imposed by the trial court from the sentencing sheets. If there is some ambiguity in the sentencing sheets, SCDC may examine the transcript of record to determine the intent of the sentencing judge.” What about Boan? “There are some situations in which SCDC may look beyond unambiguous sentencing sheets.”

Pre-Conviction Jail Time Subsequent Concurrent Sentences

Subsequent Concurrent Sentences: The Problem The jail time statute - SC Code § 24-13-40 Automatic credit for time served before sentencing No credit for home detention. State v. Higgins, 357 S.C. 382, 593 S.E.2d 180 (Ct. App. 2004) With 2 exceptions: Escape Already serving a sentence for another offense The Court has the power to award a specific amount of jail time under the statute

Subsequent Concurrent Sentences: The Problem Sentence A Sentence B Under the statute (SC Code § 24-13-40), the second sentence starts on the date of sentencing! Running them concurrently doesn’t change the jail time credit.

The Solution Sentence A Sentence B Use the Court’s power to award a specific amount of jail time Set sentence start date to same start date as sentence already being served Indicate in the “Other” section of the sentencing sheet

Youthful Offender Act Mandatory Minimums Second-Degree Burglary

YOA Sentences for Second-Degree Burglary: The Problem S.C. Code 24-19-10 now 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. Disqualifies these inmates for the shock incarceration program.

YOA Sentences for Second-Degree Burglary: The Solution Mandatory minimum does not apply to other related offenses. Where there are multiple offenses Seek incarcerative sentence on other offenses Ask for adult offender sentence instead of YOA No mandatory minimum Still could be eligible for shock incarceration But offender would lose benefits of YOA

Concurrent Federal and State Sentences Will they really run concurrently?

Concurrent Federal and State Sentences: The 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.

Concurrent Federal and State Sentences: The Solution Encourage coordination with federal authorities BOP gives greater deference to federal orders BOP has power to designate SCDC as a facility for service of the federal sentence. 18 USC § 3621. Sentences would then run concurrently State waiver of primary jurisdiction Rarely done Shumate v. U.S., 893 F. Supp. 137 (NDNY 1995)

Common Law Escape or Statutory Escape Automatic consecutive sentence?

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?

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.

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

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 Court’s intent clear Use the “Other” part of the sentencing sheet We are happy to help in preparing a sentencing order to reflect Court’s intent

THE END Questions?