SENTENCE LAW UPDATES

CRIMINAL ADVOCACY PROGRAMNovember 5, 2010 ANNE YANTUS

• TALK TO CLIENT About PSI Interview

• COMBINATION for DEPARTURE

• YOUTH as MITIGATING Factor

HOLMES YOUTHFUL TRAINEE ACT (HYTA)

Before 21st Birthday

Must Plead Guilty

No Conviction Enters

HYTA DISPOSITIONS

Probation up to Three (3) Years

Prison up to Three (3) Years

Jail up to One (1) Year

INELIGIBLE FOR HYTA

LIFE Offenses

TRAFFIC Offenses

SORA Sex Offenses

Major Controlled Substance Crime

7411 DIVERSION

No Prior Drug Convictions

Plead Guilty or Found Guilty

No Conviction

7411 STATUS

Court May Place on Probation (with conditions)

7411 INELIGIBLE OFFENSES

Delivery, Manufacture, PWIDand

Possession 50, 450, 1000 grams

of Cocaine or Heroin

7411 ELIGIBLE OFFENSES

USE and POSSESSION Low Level Drugs

USE of Cocaine and Heroin

POSSESSION u/ 25 Grams

Cocaine and Heroin

Another Important Difference

7411 DIVERSION – Does Not Count as Prior Conviction Under Guidelines

HYTA DIVERSION – DOES COUNT as Prior Conviction Under Guidelines

ANOTHER DIFFERENCE

7411 DIVERSION – Can Only Use Once

HYTA DIVERSION – Can Use Again and

for Multiple Charges

Holmes Youthful Trainee

DO THE SENTENCING GUIDELINES APPLY TO HYTA COMMITMENTS?

SENTENCE ENHANCEMENT

Guidelines Range May be Doubled for Second Controlled Substance Offense

People v Lowe, 484 Mich 718 (2009)

SENTENCE ENHANCEMENT

Are the Prior Record Variables Scored With Second Controlled Substance Offenses?

Leave Granted:

People v Peltola, _ Mich __ (2010)

DOUBLE SENTENCE ENHANCEMENT

Second Controlled Substance Enhancement

+Habitual Offender Enhancement?

NO!

SENTENCE ENHANCEMENT

Possession of Marijuana

as Second Drug Offender

+

Habitual Offender

NO!

DOUBLE ENHANCEMENT

Felony Firearm

+Habitual Offender

NO!

DOUBLE ENHANCEMENT

OWI Third + Habitual – YES

Retail Fraud 1st + Habitual – YES

Domestic Violence 3rd + Habitual - YES

DOUBLE ENHANCEMENT

People v Fetterly,

229 Mich App 511 (1998)

Effective Assistance of Counsel

TALK TO CLIENT About PSI INTERVIEW

United States v Washington,

619 F3d 1252 (CA 10, 9/30/10)

SENTENCING GUIDELINES

OFFENSE

VARIABLES

OFFENSE VARIABLE 3

BODILY INJURYPeople v McGraw:

Yes

OFFENSE VARIABLE 4

Victim’s Demeanor at Trial

Suffered Depression

Pretty Angry

BUT MUST BE IN RECORD

OFFENSE VARIABLE 7

DEFENDANT MUST PLAY ROLE IN CONDUCT AMOUNTING TO SADISM, TORTURE, EXCESSIVE BRUTALITY

Defendant held gun and may have pointed it: No

People v Hunt, __ Mich App __ (10/19/10)

OFFENSE VARIABLE 8

ZERO POINTS:

Movement of CSC Victim

to BedroomPeople v Thompson, ___ Mich ___

(10/8/10)

0FFENSE VARIABLE 9

Armed Robbery is a Transaction Crime which Includes Conduct – and Victims of this Conduct- in Leaving the Scene.

People v Mann, 287 Mich App 283 (2010)

OFFENSE VARIABLE 12

Must Score Variables in Numerical

Order – Score OV 12 Before OV 13

People v Bemer, 286 Mich App 26 (2009)

OFFENSE VARIABLE 12

Error to Score 25 Points for Three

Contemporaneous Acts Against PERSON

When Disseminating Sexually Explicit

Person is Crime Against PUBLIC ORDER

People v Wiggins, ___ Mich App __ (7/6/10)

OFFENSE VARIABLE 13

EFFECTIVE 4-1-09:

New 25 point category for GANG RECRUITMENT

No more 10 point category for

membership in organized criminal group

OFFENSE VARIABLE 15

Remanded for Reconsideration in light of

People v McGraw, 484 Mich 120 (2009)

People v Gray, 485 Mich 934 (2009)

OFFENSE VARIABLE 19

Ten Points Proper Where Defendant

Asked Others to Dispose of Knife

and Lie About His Whereabouts

People v Ericksen, ___ Mich App ___ (4/15/10)

OFFENSE VARIABLE 19 LEAVE GRANTED

Does OV 19 Apply to Post-Offense Conduct?

People v Smith, 485 Mich 1133 (2010)

DEPARTURES

COMBINATION

OF REASONS

DEPARTURE

Age Military History

Good Employment Cooperation

Health Problems Minor Role

Caregiver to Other Community Support

Strong Family Support Education Efforts

VALID DEPARTURE?

Age (29)

Steady Employment

Care for Minor Children

Wants to be Law Abiding/Good Citizen

AGE

Can Be Substantial and Compelling

Objective and Verifiable

But 29 and Long Criminal History = NO

EMPLOYMENT

Can Be Substantial and Compelling

Can be Objective and Verifiable

But Extraordinary?

(Need Lengthy or Noteworthy)

EMPLOYMENT

Not Objective and Verifiable in Hairston:

No Affidavit from Employer

No Record of Pay (pay stub)

No Record How Long Employed

CHILD CARE

Not Objective and Verifiable in Hairston:

No Child Support Statements

No Grocery Receipts

No Affidavits from Teacher, Social Worker, or Other Individuals Who Could Verify

DEPARTURE

COMBINATION OF FACTORS

Document the Reason

Do SENTENCING MEMO

NEW from the

MICH LEGISLATURE

NEW LAWS

Super Drunk Driving (eff. 1-31-10)

Mandatory One Year Treatment for All Except OWI 1st w/ BAC under .17

Expanded Marijuana Laws (eff. 1-1-10)

Herbal Substance K2 Banned

PROBATION VIOLATION

Warrant for Violation Must be Filed Within Actual (not Statutory) Probationary Term

People v Glass, ___ Mich App ___ (5/13/10)

FINANCIAL PENALTIES RESTITUTION

Effective 7-1-09:

Restitution Based on FAIR MARKET VALUE

But if Cannot Determine or Difficult to Ascertain:

Use REPLACEMENT VALUE

CSC CRIMES

LIFETIME MONITORING

LIFETIME MONITORING

Applies to:

CSC 1st and CSC 2nd

where Victim under 13(and Offender is 17 or older)

LIFETIME MONITORING

Does NOT Apply if Offender Placed on Probation

People v Kern, ___ Mich App ___ (5/25/10)

LIFETIME MONITORING

Request PROBATIONfor CSC 2nd with

Victim under 13

GRAHAM V FLORIDA

YOUTH As Mitigating Factor

JUVENILE OFFENDERS

Cruel and Unusual Punishment to Impose

Mandatory Life Without Parole for Non-

Homicide Committed by Juvenile

GRAHAM V FLORIDA, 130 SCt 2011 (2010)

GRAHAM VvFLORIDA

“[B]ecause juveniles have

lessened culpability they

are less deserving of themost severe punishments.”

GRAHAM v FLORIDA

“A juvenile is not absolved of responsibility for his actions, but his transgression ‘is not as morally reprehensible as that of an adult.’”

GRAHAM v FLORIDA

“[F]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

GRAHAM v FLORIDA

“Juvenile offenders cannot with reliability be classified among the worst offenders.”

GRAHAM v FLORIDA

“As compared to adults, juveniles have a ‘”lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.”

GRAHAM v FLORIDA

*IMMATURITY

*PEER PRESSURE

*CHARACTER LESS FORMED

GRAHAM v FLORIDA

“Developments in psychology and brain science continue to show fundamental

differences between juvenile and adult brains.”

GRAHAM v FLORIDA

“[P]arts of the brain involved in behavior control continue to mature through late adolescence.”

GRAHAM v FLORIDA

“Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”

Does GRAHAM Permit

a DEPARTURE

Based on YOUTH?

• TALK TO CLIENT About PSI Interview

• COMBINATION for DEPARTURE

• YOUTH as MITIGATING Factor

The End.