Sentencing Guidelines - An Overview

Sentencing Guidelines – Basic Overview

A person charged with a felony is going to hear their attorney talk about “sentencing guidelines” and because this often creates a lot of fear and confusion, I thought it would be helpful to offer a brief overview on what exactly sentencing guidelines are and how sentencing works in Michigan.

The first thing to understand is that the number your attorney (or judge, prosecutor, or probation officer) uses when describing sentencing guidelines refers to the range of months that judge must sentence you to for the minimum portion of your sentence. The maximum is set by the statute and your attorney doesn’t have much say at all what happens on the back end of a sentence. A defendant is at the mercy of the Department of Corrections and the parole board. However, most inmates are paroled as soon they are eligible to it is important to work hard to get the minimum number (the sentencing guidelines range) down to the lowest amount possible.

For example, if a particular person’s sentencing guidelines are 51-80 months and the person is convicted of a 15 year felony, the maximum sentence is 15 years and the minimum part will be between 51-80 months. The judge has the discretion to sentence the defendant to some term between 51-80 months before the defendant is eligible for parole. So the final sentence may be 60 months to 180 months or 5-15 years.

People often get confused when they hear their attorney say the guidelines are 10-23 months on a ten year felony and think that the person will be out in 23 months at the latest. That is NOT the case. The 23 months is the maximum for the minimum portion of the sentence. The judge could set the minimum as low as 10 months or as high as 23 but it will be a set number within that range.

Some crimes have mandatory minimum terms and some require life in prison. There is another tricky category that sets the penalty at “life of any term of years.” In those cases, the judge can set the maximum wherever she feels fit; often a chilling proposition. In many cases, however, there is a plea agreement to a lesser charge that removes this possibility. I have also had clients that are convicted of a crime that has “life or any term of years” get a maximum sentence of only 5 years, so it isn’t necessarily a “death sentence.”

In a future blog, I will discuss the factors that go into determining a person’s sentencing guideline range.

Ryan Maesen

Criminal Lawyer

Grand Rapids, MI

www.maesenlawplc.com

www.westmichigancriminaldefense.com

Consecutive Sentencing Part III - Discretionary Consecutive Sentences

Consecutive Sentencing Part III – Discretionary Consecutive Sentencing

While mandatory consecutive sentencing is fairly straightforward, discretionary consecutive sentencing contains a creature that can be uncooperative, mean, fickle, frustrating, and downright painful to deal with: the judge.

This “X-Factor” can wildly affect whether a person gets a consecutive sentence or not. Different judges and different counties have different philosophies and tendencies. The prosecutor can even influence this if he or she requests a consecutive sentence, or conversely agrees with the defense attorney one not be imposed.

Most competent defense attorneys (i.e. not Cooley graduates) will takes steps early in your case to make sure that the specter of consecutive sentencing is dealt with ahead of time. Keep in mind, the prosecution does not have to provide advance notice if they are seeking a discretionary consecutive sentence. And in the absence of a Cobbs agreement or as part of a plea deal, the judge doesn't have to warn the defendant either.

Even though the judge’s consecutive sentencing authority is discretionary, he must still get his authority from a statute authorizing consecutive sentencing. The following is a brief list of some of the more common scenarios where consecutive sentencing is allowed but not required.

• Assaulting a police officer
• Use of a computer for a felony
• Homicide involving the use of a motor vehicle
• First degree home invasion
• First Degree Criminal Sexual Conduct

All of the above allow discretionary sentencing where the crime is part of a series of other crimes. For example, a first degree home invasion may involve tying up or kidnapping the residents of the home, assaulting them, or, in tragic cases, even killing them. Child pornography is an example of an additional crime that uses a computer.

The most common example where criminal defense practitioners see the potential for discretionary consecutive sentencing is when a client is out on bond an commits another felony. Ironically, one of the more common new felonies is not showing up for a court proceeding and then being charged with “absconding bond.” Very ticky tack, but it happens.

“Drug dealing” and related charges arising out of that behavior often includes a provision allowing for consecutive sentencing.

Ryan Maesen
Criminal Lawyer
Grand Rapids, MI
www.maesenlawplc.com
www.westmichigancriminaldefense.com

Consecutive Sentencing Part Two - Mandatory Consecutive Sentencing

Consecutive Sentencing Part II – Mandatory Consecutive Sentencing

Mandatory Consecutive Sentencing is pretty straightforward. In the following scenarios, the judge must sentence the offender to a consecutive sentence. There is not debating it.

• A person is in prison/jail and commits a new crime (for example, assaults another inmate)
• A person escapes from prison/jail and commits a new crime (escaping is in and of itself a felony that will trigger mandatory consecutive sentencing)
• A felony committed while on parole (being on felony probation does not trigger a mandatory consecutive sentence)
• A major drug crime committed while a person has a pending felony case (regardless of whether the original case was drug related or not)
• Any felony where a firearm is used (felony firearm), this is an automatic 2 year stab in the back at the end of the underlying prison sentence. If probation is imposed, then this mandatory two year doesn't apply. You can’t do time just for the felony firearm enhancement in and of itself.

Ryan Maesen, criminal lawyer in Grand Rapids, MI

www.westmichigancriminaldefense.com

www.maesenlawplc.com

Consecutive Sentencing Part One - Overview

Consecutive Sentencing Part I - Overview

There is some confusion out there regarding the difference between consecutive sentencing and concurrent sentencing. This issue comes up most frequently arises when a person: 

•  pleads guilty or is convicted of multiple felonies
•  commits a felony while on probation or parole
•  commits a new crime while on bond or while incarcerated

Consecutive sentencing is when a person must complete one prison or jail sentence before beginning to serve time on the next one. For example, if someone is serving a 3 year sentence for and then gets a convicted of something else, the sentence on the new crime would not begin until the 3 years is up. This obviously can add a lot of time to one’s time in prison. That is why most defendants prefer concurrent sentences.

Concurrent sentences allow a person to serve multiple sentences at the same time, getting credit for all of them at once. Fortunately, this is the norm in Michigan. However, there are certain instances when consecutive sentencing does occur.

The first is when the legislature makes it mandatory as part of a statute and the second is when the judge has discretion to sentence a defendant consecutively. Not surprisingly, the legislature has been steadily adding provisions whereby consecutive sentencing is becoming more common.

The next part of this blog will discuss mandatory consecutive sentencing. That blog will be followed by one discussing discretionary consecutive sentencing.

Patience can pay off

  We have all heard that patience can pay off but many of my prospective clients don't practice it. I had a call recently (which was a referral from another attorney) that left me a voice mail at around 9 AM while I was in court. By the time I called the guy back at 11, he had already hired somebody else because he was so anxious to get an attorney on retainer right away. I apologized for having services that are in demand so that I am not always able to sit around waiting for the phone to ring, and I wished him the best of luck. Talk about impatience. And the kicker was that this guy wasn't even charged with a crime yet.

Ryan Maesen
www.maesenlawplc.com

Attitudes

   This will be a short blog but it makes a point I have been mulling over for some time. I am not a big believer in "your attitude is everything" or "positive thinking" or any of those type of new age/self-help slogans. However, I do believe that attitude can be important in certain areas of life.
   One important area is the attitude we as parents have towards the world at large and the various groups and institutions in it. I recently had a client whose was facing some serious drug charges along with 5 co-defendants. All of his co-defendants had been watched by the police for some time and were known meth manufacturers, users, and dealers. By all appearances my client was in the wrong place at the wrong time. All of his co-defendants stated that they barely knew him and that he was not part of the regular group. However, some of them later were willing to testify against him in exchange for leniency. Because his involvement was fairly minimal, the prosecutor offered him a pretty plea deal which he took, rather than risk a lengthy prison sentence.
   As is sometimes the case, my client was on probation in another county for stabbing a guy in the stomach and got a longer prison sentence for that than what he received for the drug charges. My client, who is in his early twenties, had a pretty long juvenile record prior to picking up the adult felonies. That is not so unusual.
   What got me thinking about attitude is the kid's father. I know he loves his son and is worried about him but I suspect that this man's attitude towards everything is part of why his son can't stay out of trouble.
    From the first time I met him, he kept acting like everyone was out to get his son. Everything had a rationalization about how the police were out to get him and how every crime he had committed had some justification. For example, the stabbing that had landed him on probation was justified because the other guy was much bigger. I had to hold me tongue when I really wanted to tell him that he would have done his son a much greater service had he forced him to take responsibility for his actions and his life when he had first starting getting in trouble. Blaming everyone and everything else around him was not going to keep his son from someday serving a lengthy prison sentence. Responsibility would. If this kid's dad had that attitude, then why would the kid every straighten out? He could just do whatever his impulses told him to do and then point the finger at something or some one else?
    It is important that we make sure our children know right from wrong and to take responsibility for their actions. Life is not fair but feeling sorry for yourself won't accomplish anything.

Ryan Maesen
www.westsidelawoffices.com