Counsel should attempt to determine, unless there is a sound tactical reason for not doing so, whether the prosecution will advocate that a particular type or length of sentence be imposed.
If a written sentencing memorandum is submitted by the prosecution, counsel should request to see the memorandum and verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, counsel should take appropriate steps to correct the information unless there is a sound strategic reason for not doing so.
C. If the defense request to see the prosecution memorandum is denied, an application to examine the document should be made to the court or a motion made to exclude consideration of the memorandum by the court and to prevent distribution of the memorandum to parole and correctional officials.
Counsel should prepare and present to the court a defense sentencing memorandum when there is a strategic reason for doing so. Among the topics counsel may wish to include in the memorandum are:
Challenges to incorrect or incomplete information in the official presentence report or any prosecution sentencing memorandum;
Challenges to improperly drawn inferences and inappropriate characterizations in the official presentence report or any prosecution sentencing memorandum;
Information contrary to that before the court and that is supported by affidavits, letters, and public records;
Information favorable to the client concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, employment record and opportunities, educational background, and family and financial status;
Information that would support a sentencing disposition other than incarceration, such as the potential for rehabilitation or the nonviolent nature of the crime;
Information concerning the availability of treatment programs, community treatment facilities, and community service work opportunities; and
G. Presentation of a sentencing proposal.
Counsel should be prepared at the sentencing proceeding to take the steps necessary to advocate fully for the requested sentence and to protect the client's interest.
Counsel should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of sentence.