In a criminal prosecution, if the defendant is convicted the case moves to the penalty or punishment phase of the trial. The penalty or punishment phase of the trial begins with the judge setting a date for sentencing. Before the sentencing a probation officer will conduct a presentence investigation to help the judge determine the appropriate sentence for the defendant from the range of possible sentences provided in the applicable statutes.

The presentence investigation will generally consider the defendant’s prior criminal record, custody status, plea bargain, pending cases, substance abuse history, education history, employment history, marital history, finances, physical health, mental health, gang affiliations, ties to the community, and other relevant factors.

The presentence report makes a recommendation based on how the sentencing guidelines rate the seriousness of the offense—and on the defendant’s criminal history. The judge is not required to follow the recommendations of the probation officer or the parties—but if the judge rejects a sentence agreed to by the defense and prosecution, the defendant may withdraw a guilty plea.

The sentencing hearing is often much like a mini-trial, and both the prosecution and the defense are given a chance to make opening and closing statements and to call witnesses. The court may also hear and consider victim impact statements.

In most states, and in the federal court system, the judge determines the sentence for a convicted defendant—but in some states, the defendant has the right to choose to be sentenced by the judge or the jury. And in most states juries determine the sentence in cases in which the defendant is eligible for the death penalty and the prosecution is seeking the death penalty. And in many states and the federal court system there are sentencing guidelines to assist judges in determining appropriate sentences and to encourage uniformity in sentencing convicted defendants.

In Minnesota, after a defendant is convicted in a criminal prosecution, the case proceeds to the sentencing phase. A judge will schedule a sentencing date, and a probation officer will conduct a presentence investigation to inform the judge's decision on sentencing within the range allowed by law. The investigation includes an assessment of various aspects of the defendant's life and criminal history. The presentence report provides a recommendation based on Minnesota's sentencing guidelines, which consider the severity of the offense and the defendant's criminal past. While the judge has discretion and is not bound to follow the recommendation or any plea agreement, the defendant can withdraw a guilty plea if the judge deviates from a plea-agreed sentence. During the sentencing hearing, both the prosecution and defense can present arguments, call witnesses, and make statements, similar to a trial. Victim impact statements may also be considered. In Minnesota, the judge is responsible for sentencing, except in capital cases where a jury may be involved. The state uses sentencing guidelines to promote consistency in sentencing across similar cases.