SENTENCING LAW UPDATES
CRIMINAL ADVOCACY PROGRAM, WAYNE COUNTY
November 14,2014
Anne Yantus
NEW FROM THE MICHIGAN LEGISLATURE
Drive by Shootings: Maximum penalty increased from 4 to 10 years imprisonment for the basic offense (viz. endangering safety of another) without injury. If injury occurs, the maximum penalty ranges from 15 years (physical injury) to 20 years (serious impairment) to life or any term of years (death). There is also a discretionary consecutive sentencing provision for another violation arising out of the same transaction. The basic offense is now Class D in the guidelines (previously Class F), and is Class C for physical injury, Class B for serious impairment, and Class A for death. 2014 PA 191-192, amending MCL 750.234a; 750.234b; and 777.16m, effective September 22, 2014.
Receiving/Concealing Motor Vehicle: Maximum penalty increased from 5 to 10 years if the offender has a prior felony receiving and concealing conviction (any receiving and concealing conviction except those elevated based on a prior offense). The Crime Class moves up from E to D for the 10-year offense. 2014 PA 221-222, amending MCL 750.535 and 777.16z, effective March 30, 2014.
Offense Variable 15: For crimes committed on or after March 19, 2014, there is a new 50-point assessment for individuals who come into Michigan from another state or country and have in their possession a Schedule 1 or 2 drug with the intent to deliver it in Michigan. This statute would appear to include Michigan residents who return to the state with the drugs with intent to deliver. 2013 PA 203, amending MCL 777.45
Court Costs: Public Act 352 of 2014 (HB 5785), effective October 17, 2014, amends MCL 769.1k and now authorizes the following costs for the next three years:
“Any cost reasonably related to the actual costs incurred by the trial court without separately calculating the costs involved in the particular case” and includes “salaries and benefits for relevant court personnel,” “[g]oods and services necessary for the operation of the court,” and “[n]ecessary expenses for the operation and maintenance of court buildings and facilities.”
The above amendment applies to all costs ordered before June 18, 2014 (the date of the Cunningham decision) and costs ordered on or after the date of the amendment (October __, 2014).
Beginning January 1, 2015, the circuit courts shall make available information about fines, costs and assessments, although without calculation of the costs for the particular case.
“A defendant shall not be imprisoned, jailed, or incarcerated for the nonpayment of costs ordered under this section unless the court determines that the defendant has the resources to pay the ordered costs and has not made a good-faith effort to do so.”
“This amendatory act is a curative measure that addresses the authority of courts to impose costs . . . before the issuance of the supreme court opinion in People v Cunningham, 496 Mich 145 (2014).”
The amended statute also makes clear that fines are tied to the limit provided within the statute or statutes defining the crime and setting forth the penalty.
Juvenile LWOP: The prosecutor has 21 days from the date of conviction to request a sentence of life without parole for a juvenile convicted of a crime that mandatory life without parole. Absent a motion by the prosecutor, the trial court shall sentence a juvenile offender convicted of first-degree murder (or the few other offenses mandating life without parole) to a maximum term not less than 60 years and a minimum term not less than 25 years and not more than 40 years. If the prosecutor files a timely motion, the trial judge must hold a hearing to determine whether the sentence will be life without parole or a term of years. MCL 769.25, effective March 4, 2014. This law applies to those whose crime occurred after the effective date of the amendatory act, to those whose case was not final (it was pending or within the direct appeal period) before the effective date of the amendatory act, and to those whose case was not final on June 25, 2012 (the date of Miller v Alabama, 132 S Ct 2455 (2012).
NEW CASE LAW (NON-GUIDELINES)
Juvenile Offenders:
The Michigan Supreme Court concluded the rule of Miller v Alabama, 132 S Ct 2455 (2012), does not apply retroactively in Michigan. Moreover, there is no categorical bar to a sentence of life without parole for a juvenile offender under the Eighth Amendment or Michigan Constitution of 1963, art 1, sec 16. This is true even if the juvenile is convicted of felony-murder on an aiding and abetting theory. People v Carp, 496 Mich 440; 852 NW2d 801 (2014).
According to the Carp Court, a sentence of life without parole “is increasingly likely to be permissible the closer an offender was to 18 years of age at the time of the offense.” Carp, at 470 n 9.
In the Carp decision, the Michigan Supreme Court explained its view of true REHABILITATION as something that encompasses regret for the offender’s wrongdoing, commitment to moral behavior and sincere religious faith or contributing to the welfare of others:
This, however, is not to foreclose the ability of a person, however
long the person is to be incarcerated, to rehabilitate himself or herself
in the sense of fully comprehending the nature of the wrong, achieving
a greater awareness of and commitment to the elements of moral behavior,
attaining a sincere adherence to religious faith, or contributing in positive
ways to those with whom the person interacts in whatever environment he
or she has been placed. [Carp, at 521 n 38.]
Functional Equivalent of Life Sentence (De Facto LWOP):
The Wyoming Supreme Court recently held that the Miller requirement of an individualized sentencing hearing applies when aggregate sentences resulting in the functional equivalent of life without parole are imposed on a juvenile offender (there totaling just over 45 years). Bear Cloud v State, ___ P3d ___ (Wyo, 9/10/14) (collecting cases).
See also State v Brown, 118 So 3d 332, 336-337 (La, 2013) (collecting cases both ways as to functional life sentence for juvenile).
Are All Mandatory Terms for Juveniles Unconstitutional?
The Michigan Court of Appeals approved a 25-year mandatory minimum term for a 17 year old convicted of first-degree criminal sexual conduct involving a 5 year old. The Court found no violation of the Eighth Amendment and no violation of Michigan’s constitutional prohibition against cruel or unusual punishment because the defendant would have a meaningful opportunity for release during his lifetime, and Miller, Graham and Roper addressed sentences of death or life without parole, not a 25-year minimum term. The Court nevertheless acknowledged that age is relevant for Eighth Amendment purposes, that a sentencing rule permissible for adults might not be permitted for children, and that children are constitutionally different for sentencing purposes. People v Payne, 304 Mich App 667, 674-676; 850 NW2d 601 (2014).
The Iowa Supreme Court concluded that “all mandatory minimum sentences of imprisonment for youthful offenders are unconstitutional under the cruel and unusual punishment clause” of the Iowa Constitution. State v Lyle, ___ Iowa ___ (11-3339, 7/18/14). “Mandatory minimum sentences for juveniles are simply too punitive for what we know about juveniles.” Id., slip op at 41.
Washington State also precludes by statute all mandatory minimum terms for juveniles tried as adults. RCW 9.94A.540(3)(a).
The Sixth Circuit, on the other hand, found no Eighth Amendment violation with a five-year mandatory term for receipt of child pornography by a defendant who was twenty years old at the time of the crime, but had the mental age of 15 ½. The court rejects the argument that the sentence was unconstitutional because the sentencing court could not consider the defendant’s individual characteristics. Defendant was an adult. Chronological age matters for purposes of an Eighth Amendment analysis. The court did not reach the question whether a mandatory five-year sentence imposed against a juvenile would be unconstitutional. United States v Marshall, 736 F3d 492 (CA 6, 2013).
In a concurring opinion, Judge David Lawson concludes the defendant’s individual circumstances are relevant for an Eighth Amendment challenge, but the sentence was not unconstitutional since the penalty was not “grossly disproportionate” to the crime. Judge Lawson further explained that he does not believe a mandatory sentence of five years for a juvenile would be unconstitutional under Miller because Miller was limited to death and life without parole sentences. Id. (Lawson, J., concurring).
When Does the Individual Reach Age 18?
Although dealing with the question of age in the SORA context, the Court of Appeals recently adopted the birthday rule for determining a defendant’s age. The person attains a given age on the anniversary date of his or her birth (not the day before, as the common law provided). People v Woolfolk, 304 Mich App 450; 848 NW2d 169 (2014).
Old Age and Recidivism:
A deviation that was double the federal guidelines range – a deviation that stacked 20 years on the government’s recommendation and would keep the defendant in prison until the age of 91 – reversed as unreasonable for a 46 year old serial bank robber by the Sixth Circuit.. While the sentencing judge was concerned with defendant’s brazen recidivism and the threat posed to the public, the court notes statistics showing significantly reduced recidivism rates for offenders past the age of 50. Moreover, “[b]oth the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing.” The court cited the view of some observers “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have no utilitarian benefit [internal citation omitted].” The court also mentioned “studies [that] indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners.” United States v Payton, 754 F3d 375 (CA 6, 2014).
Video Appearance at Felony Sentencing:
The Michigan court rules allow a defendant to participate in sentencing via two-way video conferencing, but only for a misdemeanor sentencing hearing. MCR 6.006(a). There is no authority in Michigan for a defendant to participate in a felony sentencing proceeding via video conferencing. Accordingly, the trial court “may not use a video conference to secure a defendant’s
appearance when sentencing him for felony offenses rather than misdemeanor offenses . . . absent a defendant’s express agreement to appear via video . . . .” People v Shaw, unpublished opinion per curiam of the Court of Appeals, issued August 21, 2014 (Docket No. 314865).
Commutation:
The governor does not have the authority to revoke a commutation after it has been signed by the governor and affixed with the Great Seal by the secretary of state. Makowski v Governor, 495 Mich 465; 852 NW2d 61 (2014).
Restitution:
Federal Restitution in Child Porn Cases: "Amy" was sexually abused to create child porn when she was 8 or 9 years old. Her uncle was convicted and ordered to pay $6,000 in restitution. "Amy" received therapy for about a year and seemed back to normal. But at age 17, she learned the porn was available nationwide and her psychological state deteriorated. Mr. Paroline was convicted of possessing 2 images of Amy in the context of a conviction encompassing 150-300 images of child porn. "Amy" requested restitution of 3.4 million for future treatment and counseling costs (the latter being about $500,000) and lost wages ($3 million). She argued that each defendant who was convicted of possessing images of her should pay the full amount. The majority - per Justice Kennedy - ruled against her. The Court construed the federal restitution statute, 18 USC sec 2259, to first conclude that Mr. Paroline was not the "but for" cause of her losses. The Court next applied a proximate cause test and held Mr. Paroline should be responsible for the portion of losses attributable to his conduct and not the conduct of others. (A tricky calculation for the trial court.) Paroline v United States, 572 US ___; 134 S Ct 1710; 188 L Ed 2d 714 (2014).
Dissenting Justices Scalia, Thomas and Roberts would allow no restitution becuase the statute, as written, would not permit it. They believed with Paroline's crime it was not possible to determine the amount of restitution and any amount would be arbitrary. Justice Sotomayor, writing for herself, would allow FULL restitution.
Note: The Mich statutes allow restitution for psychological treatment for losses actually incurred and reasonably expected to be incurred. MCL 769.1a(4)(a); MCL 780.766(4)(a). They allow after-tax income loss. MCL 769.1a(4)(c); MCL 780.766(4)(c) Watch out for "Amy."
Restitution for a defendant’s “course of conduct” may not include uncharged conduct. People v McKinley, 496 Mich 410; 852 NW2d 770 (2014), overruling People v Gahan, 456 Mich 264; 571 NW2d 503 (1997). Does McKinley preclude restitution for charged but dismissed counts?
Restitution is properly ordered for travel expenses incurred by the victims in order to recover and secure property and attend a restitution hearing. The restitution statutes, MCL 780.766 et seq and MCL 769.1a, require “full restitution” and restitution is not limited to items delineated by statute. People v Garrison, 495 Mich 362; 852 NW2d 45 (2014).
The trial court, here the family division of the circuit court, may not compel payment of restitution from a defendant’s SSDI benefits by means of a civil contempt order, although the court may hold a contempt hearing to determine if there are other assets and ability to pay. In re Lampart, ___ Mich App ___ (Docket No. 315333, 7/31/14).