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