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August 2015 Archives

Steep Penalties for Assault by Strangulation or Suffocation

Mark Mandell, Esq.

About two years ago, a new Michigan law prohibiting “assault by strangulation or suffocation” went into effect. The law imposes severe penalties upon an aggressor who engages in the conduct prohibited by the statute.

MCL 750.84 states that any person who assaults another person by strangulation or suffocation is guilty of a felony punishable by imprisonment for up to 10 years or a fine of up to $5,000, or both. The law defines “strangulation or suffocation” as “intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.”

It is not necessary for a victim to suffer any actual injury in order for the State to charge an aggressor with assault by strangulation. Furthermore, an aggressor’s intent – which must be proven for a defendant to be found guilty – may be inferred simply from the use of physical violence.


In short, assault by strangulation is a very serious offense that is difficult neither to commit nor to charge.  Citizens should be mindful to avoid any conduct that could be construed as prohibited under this statute. 

Michigan Court of Appeals Finds Juvenile's Convicted of First Degree Murder Have A Sixth Amendment Right to Have A Jury Determine Their Sentence

Daniel Williams, Esq.


The Michigan Court of Appeals determined in a published opinion yesterday, People v. Skinner, ___ Mich. App. ___; ___ N.W.2d ___; COA #317892 (Aug. 20, 2015) the Juvenile Offenders who are convicted of homicide, and who face a sentence of life without the possibility of parole are entitled to have a jury determine their fate at sentencing.  Previously, a Judge would impose the sentence.

However, the COA found that in the circumstance where a Juvenile is convicted of First Degree Murder, they have a right to demand that a jury be impaneled to determine if such a sentence is appropriate.  The Court found "[w]e find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury."
           
The COA indicated, through a thorough analysis, that the right stemmed from the United States Supreme Court's opinion in Miller v. Alabama, 576 U.S. ___; 132 S.Ct. 2455; 183 L.Ed.2d. 407 (2012), the new sentencing scheme would ensure that the factors necessary to impose a mandatory life sentence on a juvenile offender would best be preserved.  As the COA noted, "[t]he Miller Court did not address the issue of who should decide whether a juvenile offender should receive a life without parole sentence and we are unaware of any court that has yet to address the issue."


Regardless of where a person stands on the issue of juvenile offender sentencing, this opinion puts the Michigan Courts at the forefront in how the determination of a life without parole sentence can and may be imposed.  While the case is likely to be appealed to the Michigan Supreme Court, and potentially, to the United States Supreme Court, the opinion provides a thorough and significant change in how juvenile offenders will, for now, be sentenced in Michigan. 

Landmark Decision Reverses Course For Michigan’s Sentencing Guidelines in Criminal Felony and High Misdemeanor Cases

Daniel Williams, Esq.On Wednesday, the Court issued an opinion in People v. Lockridge, a link to which is attached above, which dismantles the way that convicted felons in Michigan have been sentenced since the “truth in sentencing” laws went into effect on January 1, 1999. The legislature enacted mandatory sentencing guidelines, which amount to a scoring equation, and based on the offender’s prior criminal record and the facts and circumstances of the case, a mandatory minimum sentence could be determined.The sentencing Court was bound by that number, unless they could come up with “substantial and compelling reasons” to depart, either above (more time) or below (less time) than what the mandatory sentence under the guidelines scoring required.  The Court defined what substantial and compelling reasons meant in People v. Babcock, indicating that the Court could only depart upward or downward where evidence not taken into account by the sentencing guidelines was available to the Court.

The sentencing guidelines, however, could be scored based on the lower threshold of a preponderance of the evidence, and it was not required that the Defendant be found guilty of the offense for the sentencing guidelines to apply. 

In Lockridge, the Court has done away with all of that.  The sentencing guidelines are still in effect, but now they are advisory, where the Judge can use them as a guide, but he or she is not mandated to impose a minimum sentence within that range.  Nor can the guidelines be scored using a preponderance of the evidence standard.

The Michigan Supreme Court has brought Michigan’s sentencing scheme in line with that used by the Federal Courts.   In Lockridge, the Court made clear that based on rulings from the United States Supreme Court, the notion that facts could be used in sentencing that had not been proven beyond a reasonable doubt was a violation of a Defendant’s Sixth Amendment Right to a Fair Trial.  Furthermore, rather than needing a substantial and compelling reason to depart from the guidelines, a sentencing Court’s determinations will be reviewed by an appellate court only for a determination that the sentence imposed was reasonable. 

The result is that the Court has now returned Michigan to an age where judicial discretion is the norm for criminal sentencings.  The results are both positive and negative for convicted offenders.  While judicial discretion in the imposition of sentences means that a Court can look at the individual circumstances of each case and make individualized, Defendant specific sentencing determinations, there are some draw backs.

Advising clients as to what the possible sentence for a crime is going to be is a far easier task when the sentence is mandated by the sentencing guidelines.  The minimum score is determined by the guidelines calculation, unless the case was particularly egregious.  Now, there are a lot more variables in determining what an appropriate sentence might be, and what factors will ultimately be considered by the Court in trying to fashion an appropriate sentence.

Frankly, the Lockridge opinion makes having a knowledgeable and experienced criminal defense attorney all that much more important.  Only time will tell if this return to an age of widespread judicial discretion provides a better sentencing scheme, or provides a system of inequity similar to what led to the creation of the sentencing guidelines in the first place.

When judicial discretion is the norm, having an attorney who is familiar with the system, and has experience with how Judges will handle a criminal defendant who is being sentenced before them can be invaluable.  As a former assistant prosecuting attorney, Dan Williams is very familiar with the criminal justice system, criminal procedure, and with the Judges who preside on Wayne County’s Criminal Bench.  If you have found yourself on the wrong side of the law, give us a call to see about taking your case on today.

Summary of Amendments to the Holmes Youthful Trainee Act

Michael McNamara, Esq.

On August 18th, changes to the Holmes Youthful Trainee Act (HYTA) program will take effect following Governor Snyder’s approval of Public Acts 31-33 of 2015.   The most significant change is the age for HYTA is being extended to 24 years old.

The original purpose of the HYTA was to allow judges to place a youth aged 17-20 who pled or was found guilty of a crime on probation  to avoid a criminal record upon compliance with the judges sentence. Essentially it operates like a conditional dismissal, under which compliance with the court’s punishment will guarantee that there is no conviction, allowing the offender’s record to remain clean.

This is especially important for young men and women who will soon be searching for their first career position, if not so already. By complying with the HYTA program, an offender will never have to check “yes” when asked if they have been convicted, which can make or break a person’s prospects for employment.
PA 31 extends this age limit all the way to a person’s 24th birthday, with some conditions attached. First, if the offender is 21 or older then he or she cannot be assigned to youthful trainee status without the consent of the prosecuting attorney. Next, youthful trainees may now be required to maintain employment or attendance in school. If he or she is not employed or enrolled in school, the court may then require that this person actively seek employment or entry into an educational institution (high school, community college, trade school, university, etc.). Finally, a youthful trainee over the age of 21 may now be subject to electronic monitoring during his or her probationary term.

There are crimes that could result in the automatic revocation of youthful trainee status as provided in PA 32. With this new legislation, all of the crimes that qualified an offender for the HYTA program will now disqualify their status on a subsequent offense. In other words, they have one chance to participate in the HYTA program.

In the past, it was up to the court to maintain or revoke the status of a trainee who committed another HYTA-qualifying crime. Now, the courts must revoke the status of a trainee who will then be subject to applicable penalties and prison sentences.

The final amendments provided in PA 33 focus on the duration and conditions for felony offenses. Traditionally, such offenses resulted in the individual being committed to the department of corrections for custodial supervision and training (similar to boot-camp) for not more than 3 years. PA 33 reduces the maximum sentence down to 2 years. Also, the act will list certain offenses that will exclude the trainee from being committed to the department of corrections for custodial supervision and training. Prior to this any youthful trainee could have been committed, even if the crime they committed was relatively harmless.

The final change resulting from PA 33 is the addition of a mandatory probation period of no more than 1 year for youthful trainees who were committed to the department of corrections or to the county jail. Before this amendment, Judges would simply give the trainee a choice of custodial supervision or probation. Now, Judges can use a combination of the two.

These changes are a part of Governor Snyder’s goal to reduce the prison population and cost of incarceration. Through reduction of HYTA sentences and extending the eligible age limit, it is expected that fewer offenders will go to prison resulting in savings for Michigan taxpayers while offering young offenders a chance to avoid an adult criminal conviction.

If you or your child are facing criminal charges, you need to contact attorney Mike McNamara immediately. He is an expert in the Michigan criminal justice system and can make the difference between having a clean record and being haunted by a conviction for the rest of your life. Visit the contact page of Fausone Bohn LLP for more information

Resisting Arrest: Things to Avoid when Pulled over by a Police Officer

Mark Mandell, Esq.

Motorists are pulled over by police officers every day for a variety of different reasons. Whatever the circumstances, there are many acts prohibited by law citizens should avoid when being stopped by police so as to refrain from making matters worse.

First, MCL 750.479a(1) states that when a police officer in uniform signals by hand, voice, emergency light, or siren for the driver to pull over, the driver may not willfully disobey the signal. An individual who does willfully obey such a direction is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment of up to two years and a fine of up to $2,000. Both the level of the felony and the punishment increase if the fleeing results in an accident, results in the death or injury of another person, the speed limit is less than 35 miles-per-hour, or the driver has prior convictions.

Second, there are more laws that apply once a driver has come to a stop. MCL 750.479(1)(b) states that a person may not assault, batter, wound, obstruct, or endanger an officer enforcing the law. This includes the use or threatened use of physical interference or force as well as a knowing failure to comply with a lawful command. An individual who engages in any of the prohibited conduct is guilty of a felony punishable by imprisonment of up to two years and a fine of up to $2,000. Furthermore, if a violation of this statute causes injury or death to the officer, the punishment significantly increases.

To avoid incurring any additional legal trouble, your best bet when traveling on the roadways is always to comply with an officer’s commands.

If you have questions about criminal matters, fraud or other legal issues, please contact Mark Mandell at 248-468-4536 or online at www.fb-firm.com.


Fausone Bohn, LLP has assisted clients pulled over for drunk driving and other driving infractions throughout southeast Michigan, including Detroit, Ann Arbor, Northville, Novi, Livonia, Canton, Farmington, and Royal Oak.

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