sentence law updates criminal advocacy program november 5, 2010 anne yantus
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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 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
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!
DOUBLE ENHANCEMENT
OWI Third + Habitual – YES
Retail Fraud 1st + Habitual – YES
Domestic Violence 3rd + Habitual - 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)
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
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
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)
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
“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.”
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