Legal Question in Criminal Law in California
sentencing without jury
My fiance was convicted of assault w/deadly weapon w/intent to do gbi. During a period of court dates, at the judges request, my fiance made open plea to the courts. In turn my fiance was sentenced to the max term of 8 yrs. Was the to be an explanation as to why he sentenced the max and not the min or lower term. Should there have be reason for giving max term? I understand cunningham law is not retro, but given the fact that it was recently considered unconstitional, could motion for reconsideration been considered w/low to med term? Are there any options for us?
2 Answers from Attorneys
Re: sentencing without jury
The answer may depend upon when your fiance's case became final. Cunningham is probably not retroactive but there is a slight chance the Supreme Court will say that it is. Even if that happens, though, it won't be retroactive beyond a certain date.
Moreover, the Supreme Court is currently evaluating a case which asks whether a state court can apply Cunningham and related decisions retroactively even if the federal courts would not. If it takes this case and decides that state courts have such authority, your fiance may yet have a chance to present his Cunningham argument to the courts.
Re: sentencing without jury
You may have grounds for appeal due to recent rulings. Contact me directly.
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