It can be wise to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.

Ryan Maesen

Consecutive Sentencing Part I

There is some confusion out there regarding the difference between consecutive sentencing and concurrent sentencing. This issue comes up most frequently arises when a person:

  • pleads guilty or is convicted of multiple felonies
  • commits a felony while on probation or parole
  • commits a new crime while on bond or while incarcerated

Consecutive sentencing is when a person must complete one prison or jail sentence before beginning to serve time on the next one. For example, if someone is serving a 3 year sentence for and then gets a convicted of something else, the sentence on the new crime would not begin until the 3 years is up. This obviously can add a lot of time to one’s time in prison. That is why most defendants prefer concurrent sentences.

Concurrent sentences allow a person to serve multiple sentences at the same time, getting credit for all of them at once. Fortunately, this is the norm in Michigan. However, there are certain instances when consecutive sentencing does occur.

The first is when the legislature makes it mandatory as part of a statute and the second is when the judge has discretion to sentence a defendant consecutively. Not surprisingly, the legislature has been steadily adding provisions whereby consecutive sentencing is becoming more common.

The next part of this blog will discuss mandatory consecutive sentencing. That blog will be followed by one discussing discretionary consecutive sentencing.

Sentencing Guidelines – An Overview

A person charged with a felony is going to hear their attorney talk about “sentencing guidelines” and because this often creates a lot of fear and confusion, I thought it would be helpful to offer a brief overview on what exactly sentencing guidelines are and how sentencing works in Michigan.

The first thing to understand is that the number your attorney (or judge, prosecutor, or probation officer) uses when describing sentencing guidelines refers to the range of months that judge must sentence you to for the minimum portion of your sentence. The maximum is set by the statute and your attorney doesn’t have much say at all what happens on the back end of a sentence. A defendant is at the mercy of the Department of Corrections and the parole board. However, most inmates are paroled as soon they are eligible to it is important to work hard to get the minimum number (the sentencing guidelines range) down to the lowest amount possible.

For example, if a particular person’s sentencing guidelines are 51-80 months and the person is convicted of a 15 year felony, the maximum sentence is 15 years and the minimum part will be between 51-80 months. The judge has the discretion to sentence the defendant to some term between 51-80 months before the defendant is eligible for parole. So the final sentence may be 60 months to 180 months or 5-15 years.

People often get confused when they hear their attorney say the guidelines are 10-23 months on a ten year felony and think that the person will be out in 23 months at the latest. That is NOT the case. The 23 months is the maximum for the minimum portion of the sentence. The judge could set the minimum as low as 10 months or as high as 23 but it will be a set number within that range.

Some crimes have mandatory minimum terms and some require life in prison. There is another tricky category that sets the penalty at “life of any term of years.” In those cases, the judge can set the maximum wherever she feels fit; often a chilling proposition. In many cases, however, there is a plea agreement to a lesser charge that removes this possibility. I have also had clients that are convicted of a crime that has “life or any term of years” get a maximum sentence of only 5 years, so it isn’t necessarily a “death sentence.”

In a future blog, I will discuss the factors that go into determining a person’s sentencing guideline range.

It can pay to fight

The majority of people charged with a crime end up taking a plea deal. That means that the prosecutor offers them an opportunity to plea down to a lesser charge or a lesser penalty if they plea guilty and avoid a trial. This can make a lot of sense for some people.

If you are a first time offender and can get a deferred sentence or a diversionary program where you have no permanent record, this can be an enticing offer. If you are not a first time offender but are facing your first felony charge, an opportunity to plea down to a misdemeanor can be a good thing; particularly if you are concerned about getting a job as a convicted felon. Sometimes just staying out of jail is enough to make this worthwhile. Even an innocent person will sometimes take a plea deal to avoid the risk of a lengthy prison sentence if he were to lose at trial.

On the other hand, there are times where people should think long and hard about the consequences of just “pleading out.” For example, if the state’s case isn’t very strong, you may very well get a jury to return a not guilty verdict. It can and does happen. Also, occasionally the prosecutor will make a better offer nearer a trial or may even dismiss the case outright. Having the stomach to hang in there is difficult but can be worth it.

Also, because Michigan tends to punish repeat offenders more severely, avoiding any kind of a record can be to one’s long-term advantage. No one thinks that she will get in trouble again, but if she does, having a clean slate the second time around can be a large bargaining chip. Michigan has a number or crimes that become an automatic felony the third time through. Domestic violence, retail fraud, and drunk driving are three common ones.

Those long ago guilty pleas can come back to bite you later on. Think long and hard about the merits of the state’s case before accepting any plea offer.

Voluntary Dismissals

Lately, a large percentage of prospective criminal clients have been calling in and asking if we can get their case dismissed. They seem dismayed when I tell them the truth which is: “maybe, but don’t count on it.”

I am not sure why many defendants are suddenly thinking that the prosecutor’s office will just walk away from a case. Perhaps they feel that the prosecutor will “see the light” and just give up. While that does occasionally happen, it is fairly rare. And when it does happen, it usually happens right before the trial begins, as in the day before or the day of.

Even if the facts are weak, many prosecutors will hold out and see if the defendant pleads guilty to something. Many people cave into the pressure and just want to get it over with. The best bet if you are innocent is prepare a vigorous defense and send the message that you are not going down without a fight. Then, and only then, they may decide to save themselves the trouble and their office the money and voluntarily dismiss the case.

But then again, don’t count on it.

Ryan Maesen
Grand Rapids Criminal Attorney