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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Crisis Center Calls

Crisis Center Calls Not Privileged in Terrorism Prosecution

Crisis Center CallsA new ruling out of the Michigan Court of Appeals has set a serious precedent for defendants facing charges related to terrorism. Here’s the basic breakdown: An individual called a mental health hotline and spent around 80 minutes on the phone with an emergency services specialist. During the call, the individual made specific threats of violence. After the call concluded, the specialist reported the call to 911 operators.

The individual was charged with one count of threat of terrorism (based on the call) and one count of possession of a firearm during the commission of a felony (discovered at arrest). Part of the prosecution’s case then relied on testimony from the emergency services specialist who took the call as well as recordings from the call itself. Later in the process, a circuit court granted the defendant’s request to exclude the testimony of this specialist and the call recording on the grounds that both represented privileged information.

The prosecutor in the case then challenged this ruling, and the Michigan Court of Appeals agreed that the privilege normally present in these types of calls was lost when the defendant made threats of violence against identifiable third party targets. In other words, there is no privileged information when it comes to specific threats that might reasonably be carried out. If you’re facing prosecution for a threat-of-terrorism charge, it’s vitally important that you speak with a Van Buren County criminal attorney to protect your privileged conversations and to be fully aware of your rights.

It’s also worth noting that the court reminded the defendant that he has full control over waiving privilege on his communications should he wish to introduce them as evidence in his defense. The threats and context surrounding them are considered admissible regardless due to the specific way in which they interact with threat-of-terrorism laws.

For more information or questions about how this ruling might affect your case? Please contact Peter J. Johnson Law Office, PLLC today at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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