St. Joseph Michigan Criminal Defense Blog

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criminal defense attorney in Van Buren County

New Case Clarifies Relationship Between Conduct and Restitution Awards

criminal defense attorney in Van Buren County

A recent opinion issued by the Michigan Court of Appeals has clarified the standard governing the relationship between a criminal offense and the restitution the defendant must provide. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County.

Restitution, a requirement for a convicted defendant to reimburse his or her victim for their losses is an issue in many, if not most, criminal cases. Appellate cases involving restitution have provided insight into the nature and extent of restitution and the evidentiary standards for establishing restitution. However, in Michigan and across the United States, most criminal cases are settled by plea agreements, not trials, and convictions based on such agreements often lead to difficulties in establishing restitution awards. For example, during plea negotiations, the prosecution will often agree to dismiss certain charges against the defendant or to recommend a particular sentence in exchange for that defendant’s guilty plea to another offense, along with his or her agreement to provide restitution to the victim.

In People v Bryant, a recent Michigan Court of Appeals decision, the defendant was originally charged with several offenses, including Home Invasion in the Second Degree and Possession of a Firearm During the Commission of a Felony (“Felony-Firearm”). The charges stemmed from a break-in involving the defendant, and surveillance footage of the victim’s home showed the defendant leaving with several stolen items, including two guns. The defendant eventually reached a plea agreement with the prosecution, under which the prosecution agreed to a five-year sentence and to dismiss the Home Invasion charge, in exchange for the defendant’s guilty plea to the Felony-Firearm charge, and his agreement to pay $1,000 in restitution to the victim as reimbursement for her insurance deductible. The defendant pled guilty to the Felony-Firearm offense, and in his plea he admitted to stealing only one of the two guns and did not mention any of the other stolen items. Soon after, the defendant file a motion to correct an invalid sentence, arguing that the trial court should only have ordered restitution for the loss from the theft of a single gun, because that was the extent of what he confessed to doing. The prosecution countered by noting that the defendant had originally been charged with home invasion, and that there was ample evidence available to the court to substantiate the other items the defendant had stolen.

In issuing its opinion, the Michigan Court of Appeals quoted from McKinley, a Michigan Supreme Court case. In People v McKinley, the defendant was ordered to pay a restitution award that was based solely on his uncharged conduct (conduct to which he did not admit and which was not proven in court). The Court held that there must be a direct, causal relationship between a defendant’s conduct and the amount of restitution to be awarded, and that any course of conduct that does not give rise to a conviction may not be relied upon to assess restitution.

Ultimately, the Court of Appeals found substantial factual differences between McKinley and the present case, and it ruled against the defendant in Bryant. Unlike the defendant in McKinley, the defendant herein was not being ordered to pay restitution based solely on uncharged conduct because an essential element of the Felony-Firearm charge was that the firearm must have been obtained or brandished during the commission of a felony. In other words, when he pled guilty to the Felony-Firearm charge, the defendant entitled the Court to consider evidence regarding the underlying Home Invasion charge because the two were “part and parcel”. Furthermore, the Court noted that the laws governing restitution awards specifically permit the presiding court to consider the contents of sentencing reports prepared prior to sentencing, and the defendant’s report clearly indicated that other items had been stolen.

Retaining a lawyer who understands the intricacies of restitution can make a critical difference in reaching a livable settlement with the prosecution. If you or someone you know has been accused of a criminal offense that involves restitution, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com

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drug crimes attorney in Cass County

New Decision Offers Guidance on What Constitutes “Plant” Under Medical Marihuana

drug crimes attorney in Cass County
In a recent decision, the Michigan Court of Appeals gave greater clarity to the definition of a plant under the Michigan Medical Marihuana Act. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

Under the provision of the Michigan Medical Marihuana Act (MMMA), registered “patients” are permitted to either grow their own marijuana plants or to designate another person as a “caretaker” who is permitted to grow the plants for them. In either circumstance, the person growing the plants is subject to strict limits regarding the number of plants that they can maintain at a time – a patient cannot maintain more than 12 marijuana plants for their personal use and a caregiver is only permitted to maintain 12 plants per patient and cannot assist more than five patients with growing their medical marijuana.

If a patient or caregiver is found to be in possession of too many plants, he or she is in violation of the Act, and is subject to criminal penalties. However, the MMMA does not provide an exact definition of what constitutes a “plant”, and this lack of clarity has led to significant confusion regarding the status of “clones”. A clone is a term used to refer to a smaller cutting from a marijuana plant and that, given the proper care and conditions, can eventually become a viable marijuana plant. The practice of “cloning” a marijuana plant is quite useful for caregivers growing marijuana plants for their patients because it allows them to skip the germination period that is often required when starting a plant and because it allows them to quickly propagate especially desirable or healthy plants.

In People v Ventura, a recent Michigan Court of Appeals decision, the court considered for the first time whether such clones can be considered “plants” under the MMMA. In that case, the defendant was registered under the Act as both a patient and a caregiver for another patient, meaning that he was entitled to possess up to 24 plants. However, when police searched his house, they discovered that in addition to 21 marijuana plants, he possessed 22 clones that had been placed in “grow material”. In its decision, the Michigan Court of Appeals first noted that the MMMA did not explicitly provide a definition of a “plant”. It then sought to determine the ordinary use of the word by reviewing the dictionary definition of “plant,” but found that this definition provided little, if any, clarity.

Because the Court could not find any previous Michigan cases that spoke to this issue, it sought guidance from judicial opinions rendered in other jurisdictions. Ultimately it settled on a relatively simple test that it found in a federal case, United States v. Edge. Edge involved the sentencing of a federal defendant based on the number of marijuana plants he possessed. In Edge, the Sixth Circuit Court of Appeals concluded that a “marijuana cutting” (such as a clone), is a plant for federal sentencing purposes if there is readily observable evidence of root formation. In support of this test, the Sixth Circuit Court of Appeals stated that such a definition is in sync with the common use of the word “plant” and also found that the test would provide clarity because of how easy it was to apply.

Ultimately these justifications also proved compelling to the Michigan Court of Appeals, which adopted the Edge test. Applying this test to the facts in Ventura, the Court noted that the plants police had seized from the defendant had “hair-like fibers growing off the main root, with those fibers visible to the naked eye”. Because these root structures were “readily observable”, the Court found that the defendant possessed 43 marijuana plants and upheld his conviction.

Understanding the complex interactions between criminal law and the Michigan Medical Marihuana Act is a difficult task that requires specialized knowledge and constant attention to detail. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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Prenuptial Agreements

New Case Limits Enforceability of Prenuptial Agreements

Prenuptial Agreements
In a recent decision, the Michigan Court of Appeals declined to enforce portions of a prenuptial agreement limiting the discretion of the trial court to intervene in property distribution between the parties. If you or someone you know are considering entering into a prenuptial agreement or are trying to contest the validity of such an agreement, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Berrien County.

In Michigan, it is increasingly common for couples with significant assets to enter into prenuptial agreements, also known as antenuptial agreements or premarital agreements. Such agreements can cover a broad array of topics, but often they are used to ensure that one party retains certain property during divorce proceedings. While Michigan courts generally enforce prenuptial agreements controlling property divisions, they are less willing to do so when the agreement is inherently unfair or when there has been an unforeseeable change in circumstances after the marriage that makes enforcement unjust. Courts have also routinely refused to enforce other kinds of prenuptial provisions, such as ones which seek to limit the court’s role in determining custody or child support for children born during the marriage because Michigan law requires the court to consider the best interests of those children in determining those issues.

Recently, courts have focused on the ability of prenuptial agreements to limit a court’s discretion to adjust imbalanced property settlements. Under Michigan law, if a presiding court finds that the division of marital property provides insufficient support for one of the parties, it can order the other party to give up a larger share from the property acquired during the marriage. In extremely imbalanced cases, the court can also require the more secure party to give up his or her separate property, including property acquired before the marriage.

In Allard, a recent Michigan Court of Appeals decision, the parties entered into a prenuptial agreement that explicitly precluded division of any separate property owned by the parties before the marriage, and imposed a mandatory 50/50 split of any property acquired after the marriage. The prenuptial agreement also went a step farther by including provisions that limited the trial court’s ability to correct imbalanced property divisions in the manner described above. As a whole, this prenuptial agreement greatly disadvantaged the Defendant in Allard, because it resulted in a much smaller property division than might otherwise have received and it limited the court’s ability to adjust this division in her favor. Nevertheless, the trial court enforced the agreement, noting that the agreement was not unconscionable and that there had not been an unforeseeable change in the circumstances of the parties since the agreement was signed.

However, the Michigan Court of Appeals later overruled this decision. Compared to the trial court, the Michigan Court of Appeals focused less on the limits of what the parties were allowed to agree to and more on the inherent powers of the presiding judge in divorce cases. The fatal flaw in the prenuptial agreement was its interference with judicial discretion; the parties are free to agree to terms that may prove disadvantageous, but they cannot prohibit the court from reviewing and possibly correcting the result to protect one of the parties.

In a statement after the decision, the attorney for the Plaintiff issued a warning to people who might be contemplating getting a prenuptial agreement. He compared writing a prenuptial agreement to planting a bomb that won’t explode until years or decades have passed, and stated it was vital to retain an attorney who understands the intricacies of such agreements, not an attorney who merely “dabbles” in writing them. If you or someone you know are considering entering into a prenuptial agreement or are trying to contest the validity of such an agreement, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Berrien County today at 269.982.1100 or visit www.AttorneyPeterJohnson.com for further information.

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Family Law Attorney in Cass County

Michigan Supreme Court to Clarify Issues Regarding Motions to Change Schools

Family Law Attorney in Cass County
After years of ambiguity, the Michigan Supreme Court is poised to hear multiple cases that may offer clarity on several issues when parents are unable to agree on changes to a child’s school district. If you or someone you know is contemplating a move that would require changing a minor child’s school district, Contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Cass County.

In situations where two parties share legal custody of a minor child, a move by one party to a new location often means that he or she will have to file a motion to change the minor child’s school district. Sometimes, this places the trial court in a difficult position because the judge must determine whether the move will adversely affect what’s known as the “established custodial environment,” and must also evaluate whether the move will be in the child’s best interests. Both of these determinations are fact-intensive and losing parties frequently file appeals to contest the court’s ruling.

However, at present, there is no guarantee that the Michigan Court of Appeals will hear such an appeal. Under Michigan law, the Michigan Court of Appeals is a court of limited jurisdiction, meaning that it can only preside over certain cases in certain circumstances. The most common types of acceptable are called “appeals by right”. Appeals by right are usually rooted in either a law or a court rule that authorizes the party to appeal a certain kind of decision. However, in family law cases, there are very few accepted grounds for appeals by right, and accordingly, the Michigan Court of Appeals frequently dismisses appeals for lack of jurisdiction.

The lack of an appeal by right for motions to change school districts has recently been the focus of several court cases. In Ozimek, the parties, who were never married, shared legal and physical custody of their child. After a year under this arrangement, the Plaintiff sought to move to another town, and filed a motion to change her son’s school from one in Allen Park to one in Livonia. Even after mediation, the parties could not agree on the change to the new school, and the trial court, after holding evidentiary hearings, ultimately denied the motion, finding that the move would adversely affect the Defendant’s ability to exercise parenting time.

Before the Michigan Court of Appeals could review the denial of the motion, it was required to first determine whether it could even hear the appeal, and ultimately, it determined that it did not have jurisdiction. In justifying its decision, the Michigan Court of Appeals noted that Michigan court rules had been changed in 1994 in order to decrease the backlog of appeals. While the revised court rule still empowered the Michigan Court of Appeals to hear appeals regarding post-judgment orders affecting the custody of a minor child, the court interpreted this exception narrowly because of the restrictive language of the 1994 revisions. Although it acknowledged that school decisions are a significant component of legal custody (the rights of parents to be involved in important decisions in their child’s life), the word custody in the rule in question was traditionally interpreted only to apply to physical custody (how time with the child is divided between the parents).

However, later in its opinion, the Michigan Court of Appeals also acknowledged that in another Michigan Court of Appeals case issued only four months earlier, it had arrived at the exact opposite conclusion when it found that legal custody was included within the rule. Given this ambiguity, the Michigan Court of Appeals also made the unusual move of explicitly urging the Michigan Supreme Court to “weigh in on the issue,” and asking supporters of an expanded rule to focus their efforts on the Michigan Supreme Court as well.

Recently, the Michigan Supreme Court has taken this advice to heart. In February, it agreed to preside over the appeal on Ozimek and in another substantially similar case, and it has requested that the parties make oral arguments on the topic of whether a motion to change schools can be considered a post-judgment order affecting the custody of a minor child. However the Michigan Supreme Court rules, there will likely be significant policy ramifications. For decades, the unwillingness of the Michigan Court of Appeals to hear appeals on this topic has frustrated parents because it limits the recourse they can seek from an adverse ruling. For its part, the Michigan Court of Appeals seems to prefer the status quo. In the Ozimek opinion, it stated that such a bottleneck is necessary in order for it to avoid being deluged by a large number of domestic cases spanning a diverse array of issues.

Family law in Michigan is a constantly evolving landscape. One of the most important decisions that you can make to ensure you prevail in a family law dispute is hiring a lawyer who is up to date on recent, critical developments in his area of practice. If you or someone you know is involved in a family law dispute, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Cass County today at 269.982.1100 or visit www.AttorneyPeterJohnson.com for further information.

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drug crime

Prosecution Must Show Intent to Deliver Drugs Within a School Zone

drug crime
According to a recent opinion issued by the Michigan Court of Appeals, a defendant cannot receive enhanced sentencing for delivering drugs in a school zone unless the prosecution establishes that he or she actually intended to deliver drugs within the school zone itself. If you or someone you know has been charged with a drug crime, contact Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Berrien County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

Enhanced Penalties for Delivering Drugs in a School Zone

Under Michigan law, criminals who deliver drugs within 1,000 feet of school property are subject to significantly harsher sentences. Specifically, such a conviction will result in a minimum sentence of two years in prison, and the judge has discretion to sentence the offender to a maximum sentence of up to three times longer than the normal maximum.

Phrasing of the Statute Requires Intent

However, the phrasing of the Michigan school zone statute is unclear as to what exactly must be shown: Does the prosecution have to establish that a defendant actually intends to deliver drugs within the school zone or is the mere fact that a defendant possesses drugs and drug dealing paraphernalia within the zone sufficient for these penalties? This ambiguity was at issue in People v. English, a recent Michigan Court of Appeals case. In that case, the police raided the defendant’s home and discovered a significant amount of drugs and drug dealing paraphernalia. Because the defendant’s home was located within 1,000 feet of a school, the prosecution sought enhanced penalties for delivering drugs within a school zone. However, the defendant argued the language of the school zone statute required the prosecution to demonstrate that he actually intended to deliver the seized drugs within the school zone, a burden that the prosecution clearly had not met.

In its holding, the Michigan Court of Appeals found that the defendant’s interpretation made the most grammatical sense given the phrasing of the statute. Although the prosecution argued that such an interpretation was not intended by the Michigan legislature, the Michigan Court of Appeals found no such violation. And because the prosecution failed to establish the defendant’s intent to deliver the drugs within a school zone, a conviction could not be sustained.

Having an attorney who understands recent legal developments and their implications for your case can be the difference between an acquittal and a conviction. If you or someone you know has been charged with a drug crime, contacted Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Berrien County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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