Comments on: No more presumption of concurrent sentences?

By: Russ Bensing

Russ Bensing — Tue, 06 May 2008 14:42:03 +0000

There was a decision out of one court last week — and if my bout of laziness passes, I might be moved to look it up — which essentially adopted both “contrary to law” and “abuse of discretion” as the standard of review for sentencing claims: if the court has abused its discretion in sentencing a defendant, the sentence is contrary to law. So there.

As to what you would think that defense counsel are doing, like my Pappy says, “I would think that I’m the Pope, but that don’t make it so.”

By: Brian Lee

Brian Lee — Tue, 06 May 2008 13:12:04 +0000

Unfortunately, I cannot type either. “with concurrent terms is sufficiently documented.” and “appellate courts are split”

Where is my errata sheet?

By: Brian Lee

Brian Lee — Tue, 06 May 2008 13:08:27 +0000

I agree that a reading of Bates would support the conclusion that the common law has returned. But I would think that defense counsel were already making sure that a sentence with concurrent terms are sufficiently documented.

I had hoped that Bates would, at least in dicta, address the issue of standard of review for claimed sentencing errors. As I am sure you are aware, the appellate courts our split as to whether it is abuse of discretion or a showing that the sentence is contrary to law by clear and convincing evidence. I don’t know that it makes any real-world difference (and would be interested in your take), but it would be nice to know what language the courts should plug in before writing affirmed. Just kidding – the appellate courts throughout the state clearly agonize over each and every sentencing decision they write.