A sentence is a criminal penalty ordered by the court. Some sentences involve jail.  Others do not.  Sometimes there are ways to avoid a penalty altogether. To understand how sentencing works in Massachusetts, you must first understand the structure of the courts. Different courts have difference sentencing power. Criminal cases are heard in either District Court or Superior Court. District Court has final jurisdiction over cases involving municipal ordinance violations, misdemeanors, and some felonies (known as “current felonies”).  Superior Court has final jurisdiction over all criminal matters but is usually reserved for the most serious crimes and offenders.  Final jurisdiction simply means that the court has the final, ultimate power to resolve (or as lawyers say, “dispose”) the case.  This is done by trial (where guilt of innocence are determined) or dismissal.  Almost all cases (even the very serious ones, like murder) start in the District Court because the law gives the District Court power to hear all criminal charges. But, because the District Court has final jurisdiction only for misdemeanors and some felonies, many of the more serious cases end up in Superior Court.  Felonies that can stay in District Court are generally those that carry a maximum sentence of no more than five years in state prison.  There are some exceptions to this general rule. For example, some drug offenses carry potential sentences of more than five years in state prison but can nevertheless stay in District Court.

What Is The Difference Between a Felony and a Misdemeanor?Criminal Defense Attorney Tells The Difference Between Felony and Misdemeanor

Many people don’t understand the difference between a felony and a misdemeanor in Massachusetts.  In a nutshell, felonies may be punished by time in state prison.  Punishment for a misdemeanor can only be in the House of Correction.  In other words, a crime punishable by death or imprisonment in the state prison is a felony.  All other crimes are misdemeanors. A judge sitting in the District Court can only sentence a person to a county House of Correction.  Each of the fourteen counties in Massachusetts, except for Nantucket County, has its own House of Correction. A person cannot be sentenced to state prison by a District Court judge, even though the maximum penalty for that crime may allow for a state prison sentence.  The longest you can be sentenced by a District Court judge per offense is for two and one-half years in the House of Correction or the maximum House of Correction term provided by that crime, whichever is lower.  Most misdemeanors are punishable by up to two and one-half years. 

Three Ways a Criminal Case Can Be Resolved

Now that you understand how the District and Superior Courts work and you know the difference between a felony and a misdemeanor, you should also know that a criminal case in the District Court can be resolved in one of three ways.
  1. Noncriminal disposition
  2. Criminal disposition without incarceration
  3. Incarceration
A noncriminal disposition is the most favorable. These types of dispositions include pretrial diversion, pretrial probation, dismissal, continuance without a finding, nolle prosequi, and filing the charge without a change of plea. 

What is Pretrial Diversion?

A pretrial diversion is a powerful tool that provides an alternative to the typical way a criminal case is processed and handled. The idea is to divert offenders away from traditional trials and sentencing and give them, and court staff, an opportunity the address the causes of a person’s criminal behavior in hopes that the person will not reoffend in the future. In Massachusetts, pretrial diversion is available only in the District Court and it’s governed by General Laws chapter 276A.  It’s available to any person charged with an offense where a term of imprisonment may be imposed and over which the District Court has final jurisdiction.  In addition, the candidate for pretrial diversion must have no convictions on their record after the age of 18 and have no outstanding warrants, continuances, or appeals in front of any courts. Finally, the individual must have received a recommendation from a program that the individual would benefit from participation in such a program. 
 
The option of pretrial diversion should be discussed with the District Attorney and the probation department before arraignment.  Once a candidate qualifies, he or she is entitled to a fourteen-day continuance of the arraignment to determine, and negotiate, an appropriate program. Usually, these programs are based on completing community service or drug and alcohol treatment. Once a defendant is accepted into the program, the criminal proceedings, including arraignment, are paused while the defendant completes the program. Once the defendant completes the program, the court has the power to dismiss the charges and the individual would not have a criminal record. 

What is Pretrial Probation?

If pretrial diversion is not available, the next best option is pretrial probation.  Sometimes this is also called a “general continuance.”  Section 87 of General Laws chapter 276 gives a District Court judge the power to place the accused on probation before trial without a plea, finding, or verdict of guilt.  Like pretrial diversion, pretrial probation requires the defendant’s consent.  The advantage to this disposition is the same as pretrial diversion—once the accused has meet certain conditions negotiated by defense counsel, the case is ordinarily dismissed.  The main difference between pretrial probation and pretrial diversion is that pretrial probation occurs after a defendant has been arraigned.  An arraignment is a type of criminal hearing where an accused is formerly charged with a crime.  The court automatically enters a plea of not guilty (because the presumption of innocence applies until a defendant pleads guilty or is found guilty). Arraignment is also where the judge sets bail and any conditions of release. Once a defendant has been arraigned, an entry on that person’s Board of Probation record is made. A “BOP” refers to a person’s record.  It is also sometimes called a CORI (Criminal Offender Record Information).  So, even if the charges are ultimately dismissed, that dismissal will remain on the defendant’s CORI as “dismissed.” Although pretrial probation does not require the consent of the District Attorney, it’s unlikely unless the government agrees. 

Outright DismissalNoncriminal Disposition

A dismissal is another form of noncriminal disposition. Outright dismissals without either pretrial diversion or pretrial probation are rare, but they do occur. These usually come in the form of motions to dismiss, when a key witness fails to testify and the government can no longer proceed with the case, or when a motion to suppress is won. Many dismissals are “without prejudice,” meaning that the prosecution could reopen the case with a new complaint. When a case is dismissed “with prejudice,” the case is totally over.  There can be no further prosecution. 

Noncriminal Dispositions

A Continuance Without a Finding (CWOF) is a very common noncriminal disposition. In short, a CWOF is a type of plea where the defendant admits that the court could find him guilty based on the evidence but is asking the court to instead continue the case without a guilty finding for a certain period of time. While the case is continued, or open as lawyers say, many defendants are required to do certain things, such as refrain from contacting the alleged victim, or complete drug or alcohol counseling, or some other condition negotiated by defense counsel.  At the end of the CWOF period, the case is dismissed. The drawback is that if the defendant does not successfully complete the continuance, a guilty finding may be imposed, and the defendant is sentenced. When a CWOF is used, the defendant’s plea is still not guilty, but the defendant is agreeing that there is enough evidence to find him or her guilty. 
 
While uncommon, a nolle prosequi (or nol pros, as lawyers say) is when the Commonwealth decides not to prosecute the case. These do not require the consent of the court or of the defendant. When a defendant is given a nol pros, it is treated as a non-conviction. 
 
The last non-criminal dispositional device is filing the charge without a change of plea.  This is commonly referred to as “filed.” This can be done only with the defendant’s consent and involves a judge placing a case “on file” without changing the defendant’s not guilty plea that was entered at arraignment. When a case is “filed,” it means that no further action will be taken on the case for a period of time. If, however, a defendant gets arrested again,  a judge or the District Attorney may revive the “filed” case and set it for trial. 
Non-criminal dispositions are obviously most favorable to a defendant. There are criminal dispositions however that do not result in incarceration. 
 
The first is when the judge files the charge after conviction. This occurs after a plea of guilty or a conviction and the judge orders the complaint to be placed on file. These are often called “guilty, filed.” Essentially, when a charge is placed on file no further action is taken and jail is not imposed. 

Intrermediate SanctionsCriminal Sentencing in Massachusetts

Other types of non-jail sentences are known as “intermediate sanctions.” These can include standard probation, supervised probation, community service, home confinement, and day reporting. Certain conditions may be imposed by the judge as well, such as substance abuse treatment and counseling.  Standard probation, often referred to as “straight probation” is when a judge, instead of imposing a jail sentence, imposes a term of probation. The advantage of straight probation is obvious: after a defendant is found guilty, he or she does not go to jail and no sentence appears on a person’s BOP or CORI.  The disadvantage, however, is real. If the probationer violates probation, he or she potentially faces a judge imposing the maximum penalty for that given crime. 
 
A District Court judge can also suspend, in whole or part, a sentence. For example, if a defendant is found guilty of an assault and battery with a dangerous weapon, a judge can impose a sentence of one year in the House of Correction, suspended for two years. This means that the defendant will be on probation for 2 years.  If the defendant violates probation, the court may order that the defendant go to the House of Correction for 1 year. Under this example, the sentence to the House of Correction may not be any longer or shorter than 1 year. Luckily, the judge has the power to find that the probationer did in fact violate probation but may nevertheless decide not to impose any sentence.
 
A District Court judge can also split a sentence. An example of a split sentence is a sentence of sixteen months to the House of Corrections with six months to be served and the balance suspended for a period of two years. Here, the defendant is sent to the House of Correction for six months and then released and placed on probations for two years.  If the defendant violates probation and the judge decides to impose a sentence, the sentence will be for the balance of the sixteen month term—in this example, ten months. 
 
The least favorable sentencing option for a defendant is incarceration in either the House of Correction or state prison. If a defendant receives a jail time, under some circumstances,  he or she may receive credit for time spent in custody prior to sentencing.  This applies, for example, to a defendant who is being held pretrial for not making bail or for being held as dangerous.  If a citizen has been sentenced to the House of Correction with a sentence of more than sixty days, he or she will remain eligible for parole after serving half of the sentence. A defendant can also be discharged early under what is known as “good time.” Good time can be either earned or statutory.  Earned good time comes from participation in work, educational or rehabilitative programs. A defendant should be entitled to up to ten days of earned good time per month. 
 
Sometimes a defendant may be subject to multiple sentences, such as, for example when he or she is found guilty on several different counts. Thankfully, there is a presumption that the sentences run concurrently (meaning together) unless they judge specifies that they are to be consecutively (meaning one after the other). 

Sentencing in Criminal Law

Before a judge imposes any kind of sentence, whether it includes jail time or not, the court must hold a sentencing hearing. Massachusetts law requires the District Attorney to move for sentencing not later than 7 days after a plea of guilty or after a verdict of guilty.  In Massachusetts, the legislature created a sentencing commission that drafted sentencing guidelines. The guidelines are advisory.  Ultimately, sentencing decisions are left to individual judges.  So, the guidelines are suggestions; they are not law. At a sentencing hearing, a judge should consider the goals of the criminal justice system: punishment, deterrence, protection of the public, and rehabilitation.  Defense counsel use the sentencing hearing as a way to humanize their client and seek, if possible, a sentence that doesn’t involve jail, or perhaps a sentence that is suspended or split. 
 

Massachusetts Criminal Defense Attorney Here For You 

Massachusetts criminal defense attorney Nate Amendola knows that sometimes bad things happen to good people and they find themselves with a serious legal problem that could have extensive, life-altering consequences. That is why he is committed to a holistic approach to every case, which ensures he sees you as a person and not just a client.

If you are facing a criminal charge in eastern Massachusetts, you want a lawyer who will work hard for you and treat you with the respect you deserve. Contact our criminal defense lawyers today for your free case review.

Nate Amendola
Massachusetts criminal defense attorney, helping resolve OUI, domestic violence, drug and criminal charges