Dean agrees to plead guilty to armed robbery. In exchange, the prosecution agrees to dismiss the remaining charges against him: assault and burglary. Can the judge consider the alleged assault and burglary when determining Dean’s sentence for the armed robbery conviction? As with so many legal questions, it depends.
Judges generally have discretion to consider a wide variety of factors when sentencing criminal defendants. In most states, the judge isn’t bound by all the rules of evidence that apply during trial. The result is sentences that are partially based on information that wouldn’t be admissible at trial and that hasn’t been proven beyond a reasonable doubt. This can come as quite a shock to a defendant who has had a charge dismissed either before trial or as part of a plea bargain, only to hear the judge mention that charge as a factor in determining the sentence.
Most state and federal courts have held that judges can consider uncharged crimes and even acquitted charges at sentencing. (Juries may convict defendants of some charges, but acquit them of others; hence the term “acquitted charges.”) It follows that most courts allow judges to consider dismissed charges as well.
Despite judges’ wide latitude at sentencing, some states have set limits on considering dismissed charges. Among these limits are those providing that judges can’t factor in dismissed charges if:
Even states that limit judges’ consideration of dismissed charges may still let a sentence stand if the judge had other, valid reasons for imposing it. Generally, higher courts won’t overturn a judge’s sentence unless it results from an “abuse of discretion.” So, even if the judge improperly considered a dismissed count, an appeals court probably won’t overturn it if the judge gave other, proper justifications for the sentence.
Criminal sentencing is one of those areas of law that differs greatly from state to state, and is completely different in federal court. Only an experienced attorney familiar with the laws of your jurisdiction can properly advise you about the pros and cons of going to trial or agreeing to a plea. Only such a lawyer can effectively represent your interests at each stage, including sentencing, and determine whether you have a viable challenge to a judge’s sentence.