Sentencing hearings are usually the last stage in a criminal case if you have been convicted. Your lawyer argues for the laxest penalties and the D.A. argues for the harshest. At the end, the judge will then decide on the final custody sentence, fines and any other terms.
In this article, our Las Vegas criminal defense attorneys discuss all you need to know about Nevada sentencing hearings:
- 1. What is a sentencing hearing in Nevada?
- 2. When does it happen?
- 3. How long do they last?
- 4. What are they like?
- 5. What will my sentence be?
- 6. What if I was convicted of more than one crime?
- 7. What if I have been convicted of crimes in the past?
- 8. If I am found guilty at trial, will my sentence be harsher than if I took a plea deal?
- 9. If I enter a plea bargain, does the judge have to grant it?
- 10. Can I remain out on bail until the hearing?
- 11. Can my family and friends testify on my behalf?
- 12. Can I appeal an unfair sentence?
1. What is a sentencing hearing in Nevada?
Think of it this way. In a criminal trial there are two sides: Your side which claims you are innocent, and the prosecutors’ side which claims you are guilty. Then let us say that at the end of this trial the jury returns a guilty verdict.
So a sentencing hearing is similar to a trial in that the judge listens to the same two sides argue: Your attorney and the prosecutors. Though the issue here is not your guilt since that has already been decided. The only thing at stake is what penalties will be imposed on you.
2. When does it happen?
It depends. Nevada law states that, “Sentence must be imposed without unreasonable delay.”2
If the crime was a misdemeanor, the hearing typically occurs right away or within a few days. This is because the maximum punishments for misdemeanors are relatively light: Six months in jail and/or $1,000 in fines.
If the crime was a felony, the hearing may not occur for three or more weeks. This is to give your attorney ample time to prepare because the potential penalties are much more serious. Felonies carry a minimum of one year in prison.
The hearing could also be delayed if
- your attorney is moving for a new trial,
- if the court needs to determine whether you are sane, or
- if the probation department is late in turning in your pre-sentence investigation (PSI).
A PSI is a biographical report about you to help the judge determine the proper penalties.
3. How long do they last?
It depends on your case. For minor crimes, sentencing hearings may last a few minutes. Though for more serious crimes, it is not uncommon for these legal proceedings to span several hours.
4. What are they like?
Nevada sentencing hearings look very similar to trials. Both your attorney and the D.A. may call witnesses to testify and give closing arguments. You also have many of the same rights as you do at trial such as:
- The right to be present at your sentencing,
- The right to have an attorney represent you,
- The right to present evidence, and
- The right to propose alternative sentencing (such as rehab instead of prison).
Note that you do not have the right to confront or cross-examine witnesses like you do a trial. For example, if John is convicted of battery and the victim Jane provides a “victim impact” statement at sentencing, John would not be able to cross-examine Jane on the stand.3
Another difference is that evidentiary rules are much looser. In trial no evidence is admissible unless it is relevant to the case. At sentencing, nearly all evidence is admissible.
In an effort to persuade the judge to impose laxer penalties, your attorney will introduce “mitigating factors.” These can be anything that makes you appear less blameworthy. Common examples include:
- you were abused and neglected as a child,
- you are a model citizen who has helped the community,
- you were under the influence of drugs or alcohol at the time and not in your right mind, or
- you suffer from a mental illness.
Conversely, the D.A. may try to introduce “aggravating factors” in an effort to persuade the judge to impose harsher punishments. Aggravating factors are evidence that make the crime seem more egregious. Common examples are:
- in violent crimes, that the injury was severe,
- in property crimes, that the property damage was substantial,
- that you used a weapon in the commission of the crime, or
- in some cases, the D.A. may bring up whether you have a long criminal record.4
5. What will my sentence be?
It is a common misconception that each crime carries a definite penalty, but that is not exactly true. Instead, each crime carries a wide range of potential incarceration and fines.
As you can see, the range spans from relatively lax to extremely harsh. Where your sentence falls within this range is what the sentencing hearing will determine.
See our related article, What are the Nevada felony sentencing guidelines?
6. What if I was convicted of more than one crime?
The judge usually decides whether multiple sentences will run “concurrently” or “consecutively.”
For example, Jim is convicted on two counts of robbery and gets three years for each count. If the terms run concurrently (at the same time), he will serve only three years. Though if the terms run consecutively (back-to-back), he will serve six years.
At the hearing, your attorney can argue for you to receive a concurrent rather than a consecutive sentence.5
7. What if I have been convicted of crimes in the past?
Whether your past criminal record can increase your sentence for a future conviction depends on several factors. Consult with your attorney, and refer to our information page about habitual offenders in Nevada (NRS 207.010).
8. If I am found guilty at trial, will my sentence be harsher than if I took a plea deal?
In general, yes. Judges prefer you to plea bargain instead of going to trial in order to conserve court resources. Therefore prosecutors will usually offer laxer penalties to you as an incentive to avoid trial.
9. If I enter a plea bargain, does the judge have to grant it?
Judges usually will honor the terms of a plea bargain, but they do not have to. There is always a slight risk when you enter a plea that the judge will impose a harsher penalty. Though again, this is rare.6
10. Can I remain out on bail until the hearing?
It depends on the seriousness of the crimes you were convicted of. In an effort to keep you out of custody pending the sentencing hearing, your attorney may argue that you are not a flight risk and that the nature of the crime does not warrant custody.7
11. Can my family and friends testify on my behalf?
It is very common for family and loved ones to testify at sentencing hearings to lobby for a lax penalty. Though sometimes they can do more harm than good depending on what they say. Maybe they can write a letter to the judge instead that your lawyer screens first.
12. Can I appeal an unfair sentence?
Yes, you can appeal sentences in the same way you can appeal guilty verdicts. There are strict deadlines to file the paperwork by, which your attorney will be aware of.8