St. Joseph Michigan Criminal Defense Blog

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1st degree CSC

1st Degree Criminal Sexual Conduct Conviction Means Automatic Life-Long Electronic Monitoring

Criminal Sexual Conduct (CSC) is an incredibly serious offense. A conviction of First Degree CSC carries with it a maximum penalty of life or any term of years in prison. MCL 750.520b. When the defendant is at least 17 years old and the victim is less than 13 years old the statutory minimum sentence is 25 years of age. If the defendant has had a previous CSC conviction, that sentence is elevated to life without the possibility of parole.

1st degree CSC

A person can be convicted of First Degree CSC if that person engages in sexual penetration (as opposed to contact) and:

  • The victim is less than 13 years of age.
  • The victim is between 13 and 16 years of age and
    • Is a member of the same household
    • Is a blood or legal relative
    • Was coerced into submission due to the defendant’s position of authority over the victim;
    • Was enrolled in a school district or non-public school where the defendant was a teacher, substitute teacher, or administrator;
    • Was enrolled in a school district or non-public school where the defendant was an employee or service provider who used his or her status to gain access to the victim;
  • The act was part of the commission of any other felony;
  • The defendant aided or abetted another in committing the act and
    • Knew the victim was mentally incapable, mentally incapacitated, or physically helpless;
    • Used force or coercion to accomplish sexual penetration;
  • The defendant was armed with a weapon;
  • The defendant injured the victim and used force or coercion to accomplish sexual penetration;
  • The defendant injured the victim who he knew or should have known was mentally incapable, mentally incapacitated, or physically helpless;
  • The victim was mentally incapable, mentally incapacitated, or physically helpless, and
    • The Defendant was a blood or legal relative;
    • The Defendant used a position of authority to coerce the victim to submit.

The penalties for this offense do not end with prison. The Michigan Court of Appeals recently held that any conviction of First Degree CSC carries with it the penalty of lifetime electronic monitoring under MCL 750.520n. That section provides:

“A person convicted under section 520b [First Degree CSC] or 520c [Second Degree CSC] for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring. . .”

However, under the Court of Appeals’ reading of the First Degree CSC statute, “regardless of the defendant’s and the victim’s age, MCL 750.520b(2) requires lifetime electronic monitoring for first-degree criminal sexual conduct offenses where the defendant has not been sentenced to life in prison without parole.” (Emphasis in original). Thus, the court expanded the electronic monitoring requirements of MCL 750.520n to include any First Degree CSC, even when the victim was over 13 years old.

It should not be forgotten that a conviction of First Degree CSC also requires a defendant to be registered on the state wide Sex Offender Registry for life unless the victim was between 13 and 16 years old and consented to sexual penetration with a defendant no more than 4 years older than him or her. This can have serious affects on where the defendant can live and work, as well as place a significant social stigma on him or her.

First Degree CSC is an exceptionally serious charge. However, there are defenses available. If you know someone facing these sort of allegations, have them contact a criminal defense attorney as soon as possible. Otherwise they could be facing a long time in prison, and a lifetime of sex offender registry and electronic monitoring.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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drug treatment court

Michigan Authorizes Creation of Veterans Treatment Courts

Governor Snyder has recently signed a law that allows district, circuit, and trial courts to create Veterans Treatment Courts within their jurisdictions. This program is designed to help members of the armed services who abuse or become dependent on drugs or alcohol, or who suffer from mental illness as a result of their service. A Veterans Treatment Court would be similar to the drug treatment court already in place in Berrien County.

drug treatment court

To be eligible, a person cannot be charged with a violent offense. He or she must complete a confidential pre admissions screening and evaluation assessment. This screening will evaluate:

  • Whether the person is a qualified veteran (including certain reserve branch members);
  • Whether the person has previously participated in Veterans’ Treatment Court, Drug Treatment Court, or another specialty court, and the result of that participation. Previous participation will not necessarily exclude a veteran, but a person may only have 1 conviction deferred or dismissed due to participation in any specialty court.

The evaluation assessment should be a clinical assessment completed by the local Veterans Administration and cover:

  • The risk or danger the veteran poses to him or her self, others, or the community;
  • The veteran’s use of alcohol and controlled substances;
  • The veteran’s mental health history;
  • Any special needs or circumstances that could affect the veteran’s receipt of treatment or ability to follow court orders.

If the person is eligible following the preadmissions screening and evaluation assessment, he or she must enter a plea of guilt to the charged offense (or a reduced charge if offered by the prosecuting attorney). The court may then accept the plea and defer judgment or sentencing and refer the person to the Veterans Treatment Court. If the person is eligible for a delayed sentence, dismissal, or deviation in sentencing upon completion of the Veterans Treatment Court, the prosecutor must approve the admission. If the person has already had one conviction deferred or dismissed under any of the statutes that allow such actions, the court must enter the judgment of guilt, but can still refer the person to the Veterans Treatment Court and delay sentencing. Traffic offenses cannot be deferred or dismissed. If a Veterans Treatment Court is not available in the court’s jurisdiction, the person can be transferred to another jurisdiction where services can be provided.

Once the person has been referred to the Veterans Treatment Court, he or she must cooperate with the many treatment providers, veterans affairs officials, and other professionals including law enforcement who will be involved in his or her case. The person may also be required to pay an administration fee for the cost of the Veterans Treatment Court, as well as paying for any treatment received. The court may waive these costs if they would be a substantial hardship on the person.

Participants in the program are provided:

  • Close monitoring by the court, treatment providers and probation officers;
  • Mentorship by another veteran of similar age, gender, branch of service, military rank, and period of military service whenever possible;
  • Periodic and random drug and alcohol testing;
  • Periodic evaluation assessments of the participant’s circumstances and progress;
  • Regimen of rewards for compliance and sanctions (punishments) for noncompliance, which may include incarceration;
  • Substance abuse treatment and relapse prevention services;
  • Education and vocational training by the Veterans Administration; and
  • Mental health treatment by the Veterans Administration when appropriate.

Upon successful completion of the Veterans Treatment Court program, the court may, if the person is eligible, dismiss the charges or enter a reduced sentence. If the person does not successfully complete the program he or she will be sentenced based on the original charge. Any subsequent felony during the person’s participation in the Veterans Treatment Court will result in termination from the program.

The authorization of the Veterans Treatment Court program addresses the need to better support this country’s returning veterans and assist them with their transition to civilian life. It allows veterans access to drug, alcohol, and mental health treatment, as well as a mentor who can help them make the transition without the added difficulty of a criminal record. It will now be up to each court to decide whether to implement this strategy in its own jurisdiction.

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Driving with Suspended License

Driving with Suspended License – important changes to process of notice

Driving with Suspended License

Court of Appeals finds mailing certificate testimonial in nature; state clerks must testify in open court on notice element in DWSL cases

 

A recent Michigan Court of Appeals decision could create a logistical nightmare for prosecutors seeking convictions in driving-with-suspended-license (DWSL) cases while bolstering a defensive argument that an accused charged under the DWSL statute, MCL 257.904, had not been adequately notified of his/her license suspension or revocation prior to the date of the offense.
The basis of the Courts decision in People v. Nunley hinged upon its interpretation of the Confrontation Clause found in the Sixth Amendment of the U.S. Constitution, which provides that œin all criminal prosecutions, the accused shall enjoy the rightto be confronted with all witnesses against him MCL 257.904 requires, among other things, proof that the accused had been given notice, in accordance with MCL 257.212, that his/her license had been suspended or revoked prior to the time of the offense. In almost all cases, notice of suspension or revocation is provided by mail from the Secretary of State to the driver and is accompanied by a certificate of mailing œnaming the person to whom notice was given and specifying the time, place and manner of giving notice.MCL 257.212. (Personal delivery of the notice of suspension or revocation is also permitted under the statute though certification is still required). In all cases prior to Nunley, the submission into evidence of the certificate of mailing the notice of suspension or revocation was permissible as proof that the suspended or revoked driver had been made aware of the loss of driving privileges prior to the time of the DWSL offense.

 

In Nunley, however, the Court concluded that since proof of notice prior to the commission of the DWSL offense is an element of the crime under MCL 257.904, the admission into evidence of a certificate of mailing as proof of that element violates the defendants right to confront the testimony being offered against him, in this case that of the Secretary of State clerk who issued the certificate of mailing. The Court based its opinion on a U.S. Supreme Court case, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which refused to admit a lab analysts report as evidence on the grounds that the results of the report were being offered to prove a fact in question at trial without permitting the defendant the opportunity to cross-examine the reports author. Because the certificate of mailing in a DWSL case is being offered to prove or establish some fact at trial, the Court characterized the certificate as testimonial in nature thereby preventing its admission under the public record exception to the hearsay rule. œIndeed,the Court said, œthe certificate of mailing is the only evidence of proof of notice and is solely created for that singular purpose.

 

The decision will likely be appealed to the Michigan Supreme Court, but in the interim the Courts ruling has given defense attorneys a valuable bargaining in the litigation process. To defend against challenges to the notice element of MCL 257.904, prosecutors are now faced with the expense and inconvenience of transporting a Secretary of State clerk from Lansing to their courtrooms to testify that he/she did in fact send the notice of suspension or revocation out as indicated in the certification of mailing. This burden, in light of the significant number of DWSL convictions garnered annually in this state, could have a dramatic effect on the approach county prosecutors take in bringing these cases to trial, a result defense attorneys can smile upon.

 

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime

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Homeless Sex Offenders

Michigan Supreme Court Says Homeless Sex Offenders Still Have to Register Residence

In a 4-3 decision filed Monday, July 11, 2011, the Michigan Supreme Court held that even homeless sex offenders had a duty to comply with the registration requirements of the Sex Offender Registry Act (MCL 28.721 et seq.) by registering their residence or domicile. The four justices paradoxically determined that lack of a home does not preclude a sex offender from reporting his or her residence or domicile.

Homeless Sex Offenders

The decision arose from the dismissal of Failure to Report charges against a defendant who had listed a homeless shelter as his residence from 2002 until 2006. In 2006 it was discovered he was a sex offender and he was asked to leave the shelter according to their policy. The defendant did not go to a Michigan State Police post and register a new residence within 10 days as is required by the statute. In fact, he had not registered since 2002. His attorney argued that he was unable to report because he in fact did not have a residence to report. The opinion contains no evidence of the habits of the defendant as far as where he typically travelled or remained. Nor did either the majority or the dissent seem concerned with the habits of this particular defendant.

The majority defined residence as that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. Emphasizing that this definition begins with place rather than home or building the majority held that a place could be a park as long as the sex offender habitually sleeps there and establishes regular lodging there. The dissent noted that in order to have a residence a person must have a (1) habitual (2) regular place of lodging where he or she (3) keeps his or her personal effects. Neither the majority nor the dissent defined lodging. The Merriam Webster online dictionary defines lodging as a place to live: Dwelling or sleeping accommodations, a temporary place to stay or a room in the house of another used as a residence. Thus even though both opinions rely on the term, the majority does so when the definition of the term would be in stark conflict with its application of the term to its generally defined place of residence. While a homeless individual may regularly sleep in a park, he or she could not have established regular lodging there where there are no accommodations to be made, and no room to be used as a residence.

The majority then defined domicile as that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time. However, it relied on an excerpt from a 1897 case that states [e]very person must have a domicile somewhere and without applying the definition to the defendants circumstances, summarily stated he must have had a domicile to register. The dissent rightly chastised the majority for failing to apply its own definition of domicile to the present circumstances. It also noted that, according to Michigan case law, in order to establish a domicile, one must have a residence and an intent to remain there indefinitely. Thus rather than being the broader, all encompassing term that the majority sought to make it, domicile is in fact a subset of residence most appropriately defined as a permanent residence. The dissent properly notes that with no residence, the homeless simply cannot establish a domicile.

Even though the majority recognized that many homeless individuals are transient and nomadic it still held that they could register because the Michigan State Police would allow them to register their domicile at 123 Homeless in the city, state, county, and zip code where they spend their days. It reasoned that the intent of the legislature was to create a comprehensive list of sex offenders, and so this designation furthered that goal. The dissent criticized this method of assigning an arbitrary address to a homeless person as creating a false and misleading statement to the police and subjecting the homeless sex offender to further prosecution. Neither opinion addressed the two larger issues: (1) that homeless sex offenders are not necessarily tied to any one city, county, state, or zip code, and (2) that requiring them to register every time they change cities would become unreasonably burdensome. Particularly in metropolitan areas, what city or township a person is in may depend on which side of the road he or she is walking on. According to the majority’s registration requirement, every time a homeless person crossed a city line and set up a makeshift shelter there, he or she would have to report this new residence to the Michigan State Police within 10 days. Therefore, the majoritys decision would penalize those who are unable to find or afford a permanent residence or it requires them to limit themselves to one city or township in their attempts to find shelter. The more plausible and practical option would have been to instruct the Michigan State Police to include on their forms a box indicating Homeless to be checked by the sex offender. Then the offender could be listed in the county where he last reported without being tied to the particular city or township where he happened to be that day. With such a simple solution available, it is curious why neither the majority nor the dissent thought of it, and why the majority would instead place such an onerous burden on the homeless in our communities.

 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Michigan Legislature Loosens Restrictions

Michigan Legislature Loosens Restrictions on Setting Aside Convictions for Youthful Mistakes

Michigan Legislature Loosens Restrictions

For so many Michigan residents, one poor decision has ruined their lives for many years. One unfortunate brush with the law when they were young resulted in a felony conviction and now everything from financial aid to lucrative jobs is closed to them because they are labeled as felons. For quite some time there has been very little statutory relief available. The statute required felons to wait 5 years after conviction or imprisonment, whichever occurs later, and then petition the court to set aside that conviction. Until June 23, 2011, the felon could not have any other criminal record. Even a simple misdemeanor like Disturbing the Peace would bar recovery.

That changed when the Michigan Legislature amended the statute, adding a provision that permits the felon to file the petition and have that conviction set aside even if he or she has up to 2 additional minor offenses. A minor offense is a misdemeanor punishable by up to 90 days and/or a fine of up to $1,000.00. Most importantly, those 2 minor offenses must have been committed before the felon 22nd birthday. Because of this limitation, it seems the Michigan Legislature clearly intended this law to be designed to forgive minor offenses made while the felon was young and foolish.

When considered together with the recent changes to the Sex Offender Registry Act, this law seems to mark a change in the Michigan Legislature intends for courts to deal with juvenile and young adult offenders. If the Legislature is not intending leniency, it is at least legislating forgiveness for offenses made during those years when juveniles and young adults are most likely to cross the law without truly considering the consequences.

 

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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