10-c-3 Re-sentencing: What Happens if You Apply?

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

10-C-3. Re-Sentencing: What Happens if You Apply?

(a) The Re-Sentencing Process

The re-sentencing process is the same for A-I, A-II, and Class B felony drug offenses. When you apply, you must send your application to the court in which you were convicted, and you must also send a copy of your application to the District Attorney's office that prosecuted your conviction.¹⁶¹ The application will be decided by the judge that gave you your original sentence if that judge still works in the same court.¹⁶² Otherwise, the application will be decided by different judge in that court, chosen at random.¹⁶³ Or, if the original judge has moved to another court that has jurisdiction over your case, and if you and the District Attorney both agree, your application may be sent to the original judge at the new court.¹⁶⁴

(b) How the Judge Will Make a Decision

If the judge finds that you meet the requirements for applying for re-sentencing, described in Part B above, the judge may consider any facts or circumstances that relate to whether you should be re-sentenced, including your prison record.¹⁶⁵ For Class B felony drug offenders, the judge is also instructed to consider your "participation in or willingness to participate in treatment or other programming while incarcerated" and your disciplinary history, though an inability to participate in such programs won't count against you when making the determination.¹⁶⁶ It is your responsibility to give the facts and circumstances that you want the judge to consider.¹⁶⁷ Similarly, the District Attorney may submit the facts and circumstances that the prosecutor wants the judge to consider.¹⁶⁸ The judge may also consider your institutional record of confinement.¹⁶⁹ However, the judge is only allowed to consider information regarding your re-sentencing, not information about whether you were correctly charged and convicted in the first place.¹⁷⁰

If you are eligible to apply for re-sentencing, you have a right to have an attorney represent you on your application.¹⁷¹ If you cannot pay for an attorney, you have a right to have one appointed by the court.¹⁷² Part D of this Chapter, "How to Apply for Re-Sentencing," explains how to get an attorney appointed to represent you. You also have a right to a hearing on your re-sentencing application and a right to be present at that hearing.¹⁷³ The court may also order a hearing to determine whether you are actually eligible to apply for re-sentencing. The court may also order a hearing to decide any relevant factual issues that are in dispute.¹⁷⁴

The judge will review the information you and the District Attorney submit and hold any necessary hearings before reaching a decision. If the judge decides to grant your application, he must choose a new sentence. The judge must choose the new sentence from the current sentencing ranges, and tell you what that sentence is.¹⁷⁵ You will then have a choice of accepting the suggested new sentence, withdrawing your application, or appealing the suggested new sentence.¹⁷⁶ If you withdraw your application, you will keep serving your original sentence. If you do not take any action, the judge will vacate your original sentence and impose the new sentence.¹⁷⁷ All of the time you have served toward your old sentence will be counted towards your new sentence.¹⁷⁸ Whether the judge grants or denies your application, he must write an opinion explaining his findings of fact and legal reasoning.¹⁷⁹

The success or failure of achieving re-sentencing often turns on whether "substantial justice dictates that the application should be denied." The judge is not supposed to have discretion beyond applying the law (for example, meeting the time to parole requirements, the merit time eligibility requirements, the ten-year look back) in determining whether a defendant is eligible for re-sentencing. The judge does have some discretion, however, in determining what substantial justice requires. For example, courts have previously denied re-sentencing because of substantial justice in cases where the defendant is a high-level drug offender,¹⁸⁰ where the drug trafficking operation that the defendant participated in was very extensive,¹⁸¹ where the amount of drugs the defendant was convicted for was high,¹⁸² where the defendant had disciplinary infractions while in prison and a long prior criminal history,¹⁸³ where the defendant committed serious offenses while incarcerated,¹⁸⁴ where the defendant had a pattern of reoffending while on parole,¹⁸⁵ and where the defendant showed no remorse for his crime and continued to deny guilt after pleading guilty.¹⁸⁶

Finally, you may also appeal a proposed, but not yet imposed, new sentence on the ground that it is harsh or excessive.¹⁸⁷ If you do so, you may still decide to withdraw your application after the appeal is decided and keep serving your original sentence.¹⁸⁸

(c) Sentences: What Sentence Could You Receive?

While felony drug sentences imposed under the old law are indeterminate, the new sentencing laws require determinate sentences for drug felonies.¹⁸⁹ If you are re-sentenced, you will be given a determinate...