THE SENTENCING HEARING
1. A trial judge's formal address to a convicted defendant, asking him or her to speak in mitigation of the sentence to be imposed. This address is required under Fed.R.Crim.P. 32(c)(3)(c).
2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or conduct, apologize for the crime, or say anything else in an effort to lesson the impending sentence. This statement is not subject to cross-examination.
[ see. BLACK'S LAW DICTIONARY, Eight Edition ]
The term of "Allocution" and the above provided definitions are given to illustrate an extremely crucial stage of the Sentencing Hearing. In layman's terms "Allocution" is the stage during the Sentencing Hearing in which the judge asks the convicted defendant if he or she has anything to say on their behalf before the sentence is imposed. Many of you reading this (especially those of you already sentenced) may have disregarded the importance of this moment in the proceeding and chose to remain silent. While others may have used this moment as an opportunity to give a "speech" about how apologetic you are for the crime(s) that was committed. However, THAT IS NOT THE PURPOSE OF ALLOCUTION! (Much to the contrary of definition number 2, provided above.) At the stage of "Allocution", when the judge asks the convicted defendant if he or she has anything to say on their behalf before the sentence is imposed, what the judge is actually asking the defendant is:
"Do you know (or understand) what I am about to do to you?..."
"Do you know (or understand) what I am lawfully permitted to do to you?..."
As of right now, most of you reading this information may be a little skeptical, and that is understandable, but first you should consider this...
All agents of the Courts of the Commonwealth of Pennsylvania (specifically Judges, District Attorneys, and Licensed Attorneys) take the same "Oath of Office" before being permitted to perform the public office duties of their profession. [For details on the "Oath of Office", see Pennsylvania Constitution, Article VI, Section 3 ]. With that being said, it should be duly noted that judges throughout the Commonwealth of Pennsylvania recognize and adhere to various maxims and axiomatic principles - some of which are publicly known cliches such as "Innocent until proven guilty", or "possession is nine-tenths of the law", while other are far less known whereas only judges are privy to them.
This fact is mentioned to illustrate how throughout the trial and the Sentencing Hearing, the agents of the Commonwealth of Pennsylvania (Judges, District Attorney, Licensed Attorneys) often communicate to one another in a way that is not fully understandable to the Defendant or the public (citizens) whom are in the courtroom witnessing the proceedings. You may think that this is simply due to most people understanding legal terminology, and that may be true to a certain extent, but the truth of the matter is much deeper than that. Throughout the Commonwealth of Pennsylvania, when a judge asks a criminal defendant if he or she has anything to say on their behalf before the sentence is imposed, the judge is actually using "esoteric" language to determine whether or not you (the Defendant) are going to permit him to strip you of your civil liberties unlawfully and sentence you arbitrarily to valid law. Truth be told, the Sentencing Hearing - and more specifically the "Allocution" stage - is so critically important in relation to a convicted defendant's freedom that, dare I say, it is just as, if not more important, than the criminal trial itself!!! But before you can attempt to comprehend such an outrageous-sounding notion, you must first understand the difference between the trial and the sentencing hearing...
|Criminal Trial||Sentencing Hearing|
|-Criminal matter||- Civil matter|
|- Pennsylvania Crimes Code||- Pennsylvania Sentencing Code|
|- 1st Finding of fact (Guilt)||- 2nd Finding of fact (Pre-Sentence report)|
|- The conviction||- The Sentence|
|- County custody||- State custody (Parens Patriae)|
As you can see from the chart displayed above, there are many differences between the criminal trial itself and the Sentencing Hearing that follows it. For starters, the trial proceedings are a criminal matter while the Sentencing Hearing is a civil matter. What happens is, the moment that a criminal offense is committed within the territorial jurisdiction of the Commonwealth of Pennsylvania, an agent of the Commonwealth of Pennsylvania (police officer) investigates the criminal offense in a effort to ascertain who committed the crime(s). Once a perpetrator is determined, an affidavit for 'Probable Cause' is created, a warrant is issued for the suspected perpetrator's arrest, and a 'Criminal Complaint' is filed against the suspected perpetrator. After an arrest is made, the District Attorney of the county where the crime was committed proceeds with prosecution against the suspected perpetrator on behalf of the Commonwealth of Pennsylvania. If the suspected perpetrator (whom becomes known as the "criminal defendant") decides to plead "not guilty" to the criminal charge(s) alleged on the criminal complaint, then the criminal proceedings of a preliminary hearing and criminal trial follow. (This changes if the criminal defendant chooses to 'waive' his right to have a preliminary hearing, or if the criminal defendant chooses to plead "guilty" to the criminal offense(s) ).
All throughout the Trial, the matter is criminal because the guilt or innocence of the defendant must be determined in regards to the criminal complaint and criminal information. (The conviction or acquittal of the defendant is known as the "1st Finding of Fact" ). If the defendant is convicted (found guilty) of the criminal offense(s), you will notice that the judge stops the proceeding and defers "sentencing" to a later date. If the case is capital (a case where the defendant faces the death penalty), the judge will defer the "penalty phase" to a later date.
This is done because the "conviction" (which is the first finding of fact) officially brings the criminal matter to an end, and not the judge must stop the proceedings so that the civil matter of sentencing can be scheduled to begin on a different day. It is critically important that you understand that the Sentencing Hearing is a civil matter because that is where the defendant gets stripped of his/her civil liberties!!! Most people believe that prisoners are incarcerated because of their conviction(s), but that is NOT TRUE!!! The conviction itself is merely the 1st Finding of Fact that is determined by the jury (unless the defendant waives that right), and that 1st Finding of Fact is what authorizes the court (the judge) to proceed to the 2nd Finding of Fact which is the Pre-Sentence Report. [If a defendant's case is capital, the judge may not order a Pre-Sentence Report due to the imminent "penalty phase" that is to come].
Contrary to what you may believe, the judge is not primarily concerned with the evidence produced in open court, nor is the judge confined to the issues of guilt at trial. This is why the issue of guilt at trial is left to a jury or citizens who are uneducated on the law. IT IS MERELY A FORMALITY OF MORE IMPORTANT MATTERS TO COME. As a result, the sentence is not based on the facts of the crime...
"Courts are not permitted to mete out punishment based on mere fact of the crime." Commonwealth v. Devers, 546 A.2d 12, 519 Pa. 88
The judge's objective is simply to determine the type and length of punishment once the issue of guilt is established. (This changes slightly if the defendant has a trial by judge instead of trial by jury). Once you fully understnad the judge's only objective, you'll understand that a "Guilty" verdict from a jury is only the "1st Finding of Fact" which brings the criminal aspect of the case to an end. The Pre-Sentence Investigation Report is the "2nd Finding of Fact" which directly affects the punishment that the judge will attempt to impose at the Sentencing Hearing.
[ EDITOR'S NOTE: For an in-depth explanation on what the Pre-Sentence Investigation Report is, go to the PAsentencing.com homepage. and click on the "THE IMPORTANCE OF THE PRE-SENTENCE REPORT" option.]
Once the Sentencing Hearing commences (begins), the Judge will immediately begin discussing the results of the Pre-Sentence Investigation Report with the prosecutor and the defendant's counsel in open court. However, certain aspects of the Pre-Sentence Investigation Report won't be openly discussed in the presence of the defendant due to Pa.R.Crim.P. Rule 703(A) which deems that the report shall be confidential and not of public record.
Once the "disclosable" information from the Pre-Sentence Investigation Report has been addressed, the judge may allow a "victim" of the crim to address the court and say something on the record of the Sentencing Hearing proceedings. This procedure is called a "Victim Impact Statement" and is governed by 42 Pa.C.S. § 9738 of the Pennsylvania Sentencing Code. Although this "Victim Impact Statement" is allegedly considered part of the "Information Basis of Sentence" by the sentencing judge (pursuant to SUBCHAPTER D of the Pennsylvania Sentencing Code), and although such "Victim Impact Statement" may evoke an emotional response from the public in attendance, this procedure is not as damaging to a criminal defendant who knows and understands the necessity of "Statutory Authorization" in relation to sentencing.
[ EDITOR'S NOTE: To fully understand "Statutory Authorization", see our in-depth analysis entitled "STATUTORY AUTHORIZATION IN PENNSYLVANIA " found only in the PAsentencing.com FREEDOM PACKET, 1st Edition. ]
As mentioned previously in this analysis of the Sentencing Hearing, it was said that the Allocution stage is the most important stage of the Sentencing Hearing. This is because the Allocution stage is where the criminal defendant has the opportunity to speak freely (without constraints of legal counsel or courtroom etiquette) and put the court (the judge) on due notice that the criminal defendant fully understands what the judge can and cannot legally do when imposing a sentence... For clarity on this matter, see the following statutes:
42 Pa.C.S. § 9721 (a). Sentencing generally ; or
42 Pa.C.S. § 9721 (b). General standards
Or, if you're conviction has a "mandatory minimum" sentence that governs punishment for the offense, see that statute for a thorough examination of the procedure(s) that must be followed at sentencing.
And last but not least, it should be duly noted that courts throughout the Commonwealth of Pennsylvania have incorrectly held that certain criminal defendants (i.e.: defendants convicted of 1st Degree Murder in capital cases) do not need to be provided with Allocution privileges because the sentence is "mandatory". BUT THIS IS A LIE!!!...
Even criminal defendants in capital murder cases have a right to Allocution and such a fact is substantiated by PA.R.Crim.P. Rule 810. Sentence. If you read the "Comment" at Pa.R.Crim.P. Rule 810. Sentence, it specifically states:
"When sentence is imposed immediately pursuant to this rule, the judge must still comply with the applicable requirements of Rule 704(c)"
After examining the above-displayed "Comment" at Pa.R.Crim.P. Rule 810. Sentence, it is manifest that the judge must still comply with the Allocution requirements of PA.R.Crim.P. Rule 704(c) which states in pertinet part:
Rule 704. Prodecude at Time of Sentencing
* * *
(c) Sentencing Proceeding.
(1) At the time of Sentencing, the judge shall
afford the defendant the opportunity to make
a statement in his or her behalf and shall afford
counsel for both parties the opportunity to
present information and argument relative to
Nevertheless, once you're provided the opportunity to speak on your own behalf at "Allocution", it is not time to ask or beg the court to be merciful, it is time for you to put the judge on due notice that you are aware of what the judge can and cannot do... At Allocution, you should say the following statement to the judge:
"Your Honor, before you impose sentence, I formally request that you specify to me, on the record, exactly what statute or statutes authorize you to impose the sentence you are imposing at this time. Furthermore, if you plan on imposing any sentencing conditions upon me to go along with the sentence, I formally request that you specify to me on the record, exactly what statute or statutes authorize you to impose such sentencing condition upon me at this time. I am aware that all judges must comply with enacted legislation when imposing sentences upon convicted defendants. Therefore, all sentences and sentencing conditions imposed within the Commonwealth of Pennsylvania must possess statutory authorizations to be legal. I am also aware that I have a constitutional right to Due Process of Law, which is guranteed by the 5th and 14th Amendments of the U.S. Constitution. As a result, I have the constitutional right to be provided with due notice of what statute you are imposing my sentence under, and I again formally request that you specify to me, on the record, exactly what statute or statutes you receieve your authorization from, and I further request that you specify such statute or statutes by their proper codified citation to prevent any confusion concerning your judicial intent. That is all I wish to say."
By reading the above statement (slowly and clearly) in open court during Allocution, you are informing the sentencing judge that you are aware of the boundaries and limitation concerning their judicial authority, and that you will hold the judge accountable and personally liable for any illegal sentence or sentencing conditions they may impose. Trust me when I tell you that the judge will know exactly what you are talking about, even though the Prosecutor and your attorney may not. Be prepared for the judge to stop the proceedings from moving forward, as the judge himself may stop the sentencing hearing and call for a "recess", "post ponement", "sidebar", etc. THIS IS TO BE EXPECTED. The main objective is to make sure that your Allocution Statement is included "on the record" into your sentencing hearing transcripts.
NOTE: PAsentencing.com information has already been the cause of a criminal defendant's sentencing hearing being "recessed" by a Judge in the middle of the proceedings. The result was an
"off the record" sentencing procedure in which the defendant was sentenced to a much more "lenient" term of incarceration... To fully understand the provided Allocution Statement, see the in-depth
analysis entitled "STATUTORY AUTHORIZATION IN PENNSYLVANIA" found only within the PAsentencing.com FREEDOM
PACKET, 1st Edition. ]
Seek Truth... Be Aware... Make A Difference...
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