The defendant entered a plea of guilty to burglary and driving under the influence. Facts: On the night in question, the defendant, who has a history of alcohol and drug dependence, had been drinking for a few hours in a local bar and desired to purchase drugs. With no money to purchase the drugs, defendant decided to break into his employer's home where he knew cash was located. Knowing that the employer was out of town and that no one would be in the residence at the time, he left the bar and proceeded to the house. At approximately 1:00 a.m., the defendant parked his car behind the residence and entered the dwelling by breaking a rear window. Defendant then located about $1,000 dollars in cash and left the house by a rear door. Defendant was not aware that a neighbor had witnessed the break-in and had notified local police. Upon exiting the house and hearing the sirens of the approaching police, the defendant fled the scene in his vehicle. After a brief chase, police stopped the defendant and he again attempted to flee. After a scuffle with the police officers, the defendant was placed under arrest. The defendant was then charged with burglary, theft, resisting arrest, eluding capture, assault on a police officer and driving under the influence. Burglary and DUI penalties: In the jurisdiction in which defendant entered his guilty plea, Burglary is defined as follows: A person is guilty of burglary if he enters a building or occupied structure . . . with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. Grading: [i]f no individual is present at the time of the entry, burglary is a felony of the second degree. Sentence: In the case of a felony of the second degree, the defendant shall be sentenced to a term not to exceed ten years. For the DUI, which is the defendant's second offense, the relevant statute provides that the offender will lose his driver's license for 12 months, will be sentenced to serve between 5 days and 6 months in prison, shall pay a $300 to $2,500 fine, shall attend an alcohol and highway safety course and upon reinstatement of the driving privileges an ignition interlock system will placed on the vehicle for a period of one year. Finally, it should be noted that the defendant herein, remained in jail for approximately 45 days until his was able to be released on bail.
Preparation for Sentencing by Defense Counsel
Given the facts above and the offenses that defendant has been convicted of, the following are recommendations for defense counsel to follow in preparing for sentencing.
- Meet with client to discuss the fact that as a result of the burglary conviction he faces a statutory maximum of ten years in prison and for the DUI a minimum of 5 days in jail coupled with fines. Counsel should discuss the possibility of seeking house arrest, electronic monitoring or another strict level of probation in lieu of incarceration.
- Instruct the client to draft a detailed personal history which includes an explanation of the fact that he burglarized his employer's home because he was seeking money for his drug dependency, his education and employment history, his long history of alcohol and drug abuse and what steps he has taken to address the problem, and any other steps he has taken to ensure that he will not engage in further criminal activity.
- Work with the client to secure specific drug and alcohol treatment and ensure that the client is participating in the same.
- Work with the client to secure specific housing and employment arrangements pre and post sentencing.
- Make arrangements for the client to pay restitution to the victim/former employer. Counsel should enquire with the prosecutor about the victim/former employer's willingness to speak with the client and possibly, upon acceptance of restitution, of employing the client in the future.
- Have the client secure letters of recommendation from family and community members including friends, teachers, clergy, counselors and mentors. These letters should advise the court of which individuals are willing to assist the client when he is in the community.
- with the client and to make the investigator aware of any and all programs and activities that the client is participating in prior to sentencing. Accompany the client to the meeting with the probation department.
- Make arrangements for getting the client involved in specific community service prior to and post sentencing such as speaking to students about drug and alcohol addiction.
Defense counsel should prepare a sentencing memorandum to be submitted to the court prior to sentencing. The sentencing memorandum should contain the detailed personal history of the defendant, the drug and alcohol treatment program that he is participating in, where he is employed, his housing arrangements, the restitution made or attempts to make the same, the letters of recommendation, the specific community service that he is or will be participating in, and a statement of remorse. Given the above facts and, in particular, that the burglary conviction does not mandate a minimum/mandatory period of incarceration, defense counsel should propose that the Court give the defendant credit for the 45 days time served, and in lieu of any further period of incarceration, should argue for a strict level of probation (which my include electronic monitoring or house arrest), coupled with mandatory completion of the drug and alcohol treatment and community service.