Brittney Griner – Why did she plead guilty to drug charges and what will happen next? 

Brittney Griner’s remains in a Russian jail and her case has moved to the sentencing phase following her guilty plea to drug charges.  She faces a maximum of 10 years of incarceration in a Russian prison.  Sports analyst, NBA, WBNA players and coaches along with talk show host have submitted that Griner pled guilty to expedite her way back to the United States.  This, however, is simply wrong, not true and demonstrates the misunderstanding of the legal process or strategy! 

Griner is also not being held captive and her detention is wrongful as she clearly violated Russian law.  She plead guilty because her criminal defense lawyers advised her that she didn’t have a trial defense and that accepting responsibility would assist with their mitigation arguments before the court. When a criminal defendant does not plead guilty and is convicted at trial, it hinders his or her defense lawyer’s ability to present certain mitigation evidence. This is a legal strategy to get Brittney Griner the best possible sentence from the Russian judge. This strategy is frequently employed in criminal courtrooms throughout the United States

Many criminal cases ends with a plea, but this doesn’t mean you should do it.  These are the 10 rights you are surrendering if you plead guilty!   

1. Privilege against compulsory self-incrimination.
2. Right to trial by jury.
3. Right to confront your accuser.
4. Right to challenge the admissibility of your own confession.
5. Right to raise questions of illegal search and seizure (motion to suppress).
6. Right to dismiss indictment based on denial of right to a speedy trial (Rule 600, Pennsylvania).
7. Right to raise non-jurisdictional Constitutional claims.
8. Right to challenge the composition of the grand jury that issued the indictment.
9. Right to challenge the impartiality of they judge, or the composition of the jury (jury trial).
10. Right to challenge the sufficiency of the evidence (burden of proof-guilt beyond a reasonable doubt).

Before you plead guilty to any crime or offense, you must understand the following 10 issues:

1. The elements of the offense or crime you are pleading guilty to
2. The defenses to the crime and possible pre-trial motions (motion to suppress)
3. The evidence against you (discovery) and availability of prosecution witnesses
4. Your Prior Record Score
5. Your Sentencing Guidelines
6. Potential Mandatory Minimum Sentences
7. Parole Requirements
8. No Early Release (NERA—New Jersey)
9. Maximum Sentences
10. Reporting Requirements (Sex Offenses—Megan Law, SORNA)

Sentencing Guidelines – How do judges sentence persons convicted at trial or those who plead guilty like Brittney Griner

Brittney Griner’s lawyers will have the opportunity to present sentencing arguments.  Russian prosecutors will also have that same opportunity.  While the defense arguments will focus on mitigation, the prosecution will focus its argument on aggravation.  Griner defense lawyers have presented teammates and other members of her Russian basketball team as mitigation witness.  Criminal defense lawyers can present mitigation evidence in the form of witnesses, documents, videos or other recordings.  The prosecution can present aggravation evidence the same way.  This is very similar to the sentencing process in Pennsylvania, New Jersey and throughout the United States.   

How does sentencing work in Pennsylvania?

While some people may believe that a judge randomly picks a sentence following a plea or a trial, Pennsylvania, like most states, maintains sentencing guidelines based on offenses and a person’s prior criminal history. It is unknown if Russian judges utilize sentencing guidelines but they likely have some procedure in place to fashion sentences. 

The Pennsylvania sentencing matrix is a table which judges utilize prior to sentencing a criminal defendant. While a judge isn’t bound by sentencing guidelines, most will give sentences within those guidelines to avoid an improper sentence appellate issue.

The sentencing matrix is divided into a horizontal and vertical axis. The vertical axis is based on the offense gravity score (OGS) of a crime and the horizontal axis is based on a criminal defendant’s prior record score (PRS). With regards to gun crimes, the OGS varies from as high as a 10 to as low as a 2 for certain misdemeanor firearm offenses. Violations of Section 6105 can range from as high as a 10 to as low as a 4. Violations of Section 6106 can range from as high as a 9 to as low as a 3. Violations of 6110.2 can vary from a 10 to a 9.

The range of the OGS depends on the circumstances surrounding a person’s arrest and whether or not the gun was loaded at the time of that arrest. The higher the OGS, the more of a severe sentence a criminal defendant faces following a conviction. For example, the guidelines for a first time offender convicted of a gun crime with an OGS of 10 are 22-36 months and 12-24 months for an OGS of 9. A gun crime with an OGS of 3 however faces restorative sanctions to 1 month in jail which more than likely means probation.

The guidelines increase from that point and a person with a prior felony or even a misdemeanor conviction in some cases faces a higher criminal penalty. For example, a person with a gun conviction with an OGS of 10 and a prior conviction for another gun crime or a prior possession with the intent to deliver could face 42 to 54 months instead of 22 to 36 months for that same offense.

These standard sentencing guidelines, however, don’t take into account the deadly weapon sentencing enhancement which District Attorney’s sometime argue for following a conviction and I encourage you to read that article on this topic. In addition to sentencing guidelines based on OGS and PRS, the sentencing matrix also includes mitigation and aggravation ranges which judges must take into account prior to imposing a sentence. Mitigation and aggravation can increase or decrease sentencing guidelines by as much as a 12 months depending on the amount of mitigation a defense attorney provides to a judge.

How does Sentencing in New Jersey?

In New Jersey, like any jurisdiction, judges can impose a wide variety of sentences on a person convicted of a crime. While the goal of our law firm is obviously to obtain an acquittal, there are situations where a person is either convicted following a trial or as a result of a plea. I encourage you to read my article on your options in criminal proceeding for more information on this topic.

The following are all options for a sentencing judge in New Jersey:

• Fine or restitution,
• Probation,
• Community service, and
• Jail/imprisonment.

Obviously if a person is convicted at trial or is pleading guilty he/she wants to avoid jail but its important to understand the factors a judge must consider prior to imposing a sentence. If a New Jersey court determines that probation is a more appropriate sentence over a term of imprisonment, it should, and usually does, identify the aggravating and mitigating factors that led to that decision. A probation sentence basically assumes that a person can be rehabilitated without serving a time in jail.

Courts use aggravating and mitigating factors to ensure that the sentence imposed is tailored to the individual and the crime he/she committed. The goal of sentencing in New Jersey, like any jurisdiction, is uniformity and that is only achieved through the application of mitigating and aggravating factors.

In New Jersey, the maximum terms of imprisonment for most crimes with some exceptions (murder (2C:11-3), aggravated manslaughter (2C:11-4), kidnapping (2C:13-1), bypass intimidation (2C:16-1), carjacking (2C:15-2)) are as follows:

• First degree – 20 years
• Second degree – 10 years
• Third degree – 5 years
• Fourth degree – 18 months

If the court determines that there is a preponderance of aggravating or mitigating factors, it may increase or decrease the presumptive sentence, so these factors are very important. If the court is convinced that mitigating factors substantially out-weigh the aggravating factors, it may sentence a defendant to a term appropriate for a crime one degree lower. In these situations, however, a defendant must show through his criminal defense lawyer, “compelling reasons” and those reasons must be in addition to and separate from the mitigating factors that substantially out-weight the aggravating factors.

Aggravating Factors

The list aggravating factors are as follows in New Jersey:

(1)The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

(2)The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

(3)The risk that the defendant will commit another offense;

(4)A lesser sentence will depreciate the seriousness of the defendant’s offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;

(5)There is a substantial likelihood that the defendant is involved in organized criminal activity;

(6)The extent of the defendant’s prior criminal record and the seriousness of the offenses of which he has been convicted;

(7)The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;

(8)The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person’s status as a sports official, coach or manager;

(9)The need for deterring the defendant and others from violating the law;

(10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;

(11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;

(12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and

(13) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle

The Mitigating Factors

The mitigating factors in New Jersey are as follows:

(1)The defendant’s conduct neither caused nor threatened serious harm;

(2)The defendant did not contemplate that his conduct would cause or threaten serious harm;

(3)The defendant acted under a strong provocation;

(4)There were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense;

(5)The victim of the defendant’s conduct induced or facilitated its commission;

(6)The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;

(7)The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

(8)The defendant’s conduct was the result of circumstances unlikely to recur;

(9)The character and attitude of the defendant indicate that he is unlikely to commit another offense;

(10) The defendant is particularly likely to respond affirmatively to probationary treatment;

(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;

(12) The willingness of the defendant to cooperate with law enforcement authorities;

(13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

Presumption of Incarceration in New Jersey

There is a presumption for incarceration where a person is convicted of a crime of the first or second degree. There is also a presumption of incarceration for those convicted of third degree crimes where the court finds that there is a substantial likelihood that the defendant is involved in organized crime (aggravating factor). With exception to mandatory minimum sentences (example Graves Act- Illegal Handguns), the court does not have to impose a term of imprisonment on someone even if they are convicted of a first or second degree crime.

In these situations, the sentencing court should determine whether there is “clear and convincing evidence” that there are relevant mitigating factors present to an extraordinary degree and whether those factors exceed aggravating factors which would make prison constitute a serious injustice. Keep in mind that the fact that a defendant would incur hardship in prison or that his family would incur a hardship is not usually enough to overcome a presumption of incarceration.

While third and fourth degree crimes do not carry a presumption of incarceration, the prosecution can overcome this presumption by showing that prison is necessary for the protection of the public given the nature and circumstances of the offense and the history, character, and condition of the defendant. The sentencing court must be persuaded that there is clear and convincing evidence that incarceration is necessary. There are also special rules that apply to repeat offenders and those with prior convictions.

Extended Terms of Incarceration in New Jersey

For a violation of the Graves Act (firearms or guns), for example, when a person has been previously convicted of a crime involving the use or possession of a firearm, the court can sentence him or her to an extended term in jail. Remember, under the Graves Act, the court will sentence a person to a term of imprisonment, which includes the minimum term of parole ineligibility of between 1/3 and ½ of the sentence imposed, or 42 months. Keep in mind however, that there are exceptions to the Graves Act mandatory minimum, but again this all has to do with the aggravating and mitigating factors of the case. While not absolutely necessary, the prosecutors consent is very important to any Graves Act mandatory exception, unless the defendant can establish that the prosecutor has arbitrarily or unconstitutionally discriminated against him (Prima Facie burden of proof). Here, the defendant must show he is being treated different from other people in a similar situation; this is very difficult.

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