Office of the Public Defender FAQs: Presentence Report, Michigan Felony Sentencing Guidelines, Sentence Bargains, Proper and Inproper considerations determining what sentence to impose, Delayed sentences, Holmes Youthful Trainee Act, 7411 of the Controlled Substance Act, Probationary sentences.
Q: Who is my lawyer?
A: Another explanatory response to this question is that as the County Public Defender, Lloyd E. Powell is the attorney officially assigned to represent you. However, it is impossible for him to personally handle each case so he designates and monitors a competent, skilled and dedicated trial attorney from his staff of Assistant Public Defenders to be primarily responsible for your case. That attorney will lead a team, comprised of all of the other attorneys and volunteers in the Office, who will assist him or her in providing you with top-notch legal representation at all times. So once again, the primary attorney assigned to lead the Office team in representing you, is your lawyer, and that lawyer is assisted by all of the other human resources in the entire department. Thus, at any time during your case, all attorneys of our Public Defender Department be representing you because we all work as a team, dedicated to providing you with top quality service.
If your case is a misdemeanor out of the 14A-1, 14A-2, 14A-3, or 14A4 District Court, your case will be assigned to the Misdemeanor Division of the Office. There are times when the office cannot represent a client due to a conflict of interest. If this happens, another court appointed attorney will be assigned to represent you.
Q: I am scheduled for a preliminary examination, who will represent me?
A: You can find out who your assigned attorney is by calling the Main Office on the Friday prior to your court date. The assigned Public Defender will meet with you prior to your preliminary examination to discuss your case. If you are in jail, they will visit you there. If you are out on bond, you must call the office to speak with your assigned attorney to discuss your case. Please leave a telephone number where you can be reached.
Q: What happens after the preliminary examination?
A: After the preliminary examination proceedings, most cases are bound over to Circuit Court, either for pre-trial and trial, or for sentencing if a felony plea agreement was reached at the preliminary examination stage. Misdemeanor plea agreement cases are assigned to misdemeanor courts. You will be provided with the name of the attorney in your assigned court.
The Chief Public Defender has a personal interest in the zealous representation of each and every client. You can be confident that you will receive outstanding assistance from every member of the Public Defender Team.
Presentence ReportQ: Is a presentence report required for all felony cases in Circuit Court?
A: Yes. The statute provides that a presentence report is required "before sentencing any person charged with a felony."
The Code of Criminal Procedure defines felony as any offense where the sentence may exceed one year of incarceration.
Q: Is a report required for misdemeanor cases of one year or less in Circuit Court?
A: Generally, no. But a Judge will not deny a defendant's request for a presentence report in a misdemeanor case without a good reason for doing so.
Q: Is a report required for District Court cases?
A: No. The statute provides that presentence reports are discretionary for misdemeanor cases.
Q: What must the report contain?
A: The report must include:
(1) An evaluation of and a prognosis for the person's adjustment in the community based on factual information contained in the report;
(2) A specific written recommendation for disposition;
(3) A statement by the prosecuting attorney on the applicability of any consecutive sentencing provision;
(4) A statement concerning any physical or emotional injury or economic loss suffered by the victim, if provided by the victim;
(5) A victim's impact statement, if requested by the victim;
(6) An objective description of the offense;
(7) The defendant's version of the offense;
(8) A full description of defendant's prior criminal record;
(9) The status of all criminal charges pending against the defendant; and
(10) A personal profile of the defendant.
Q: Must the report contain a sentence recommendation?
A: Yes. The presentence report must contain a specific sentence recommendation. A presentence report that contains no recommendation for a sentence does not comply with the statute.
Q: Must the report be prepared for a specific offense?
A: Yes. The defendant is entitled to be sentenced on the basis of a presentence report prepared especially for the offense for which the defendant is being sentenced.
Q: To whom must the report be disclosed in Circuit Court?
A: The defendant, the defense attorney, and the prosceutor have the right to read the presentence report.
Q: Must the entire report be disclosed to the defendant?
A: No. The judge may exempt from disclosure to the defendant:
(1) Parts of the report that are not relevant to a proper sentence; (2) Diagnostic opinions that might seriously disrupt a program of rehabilitation; or (3) Sources of information which have been obtained on a promise of confidentiality.
Michigan Felony Sentencing GuidelinesQ: When must the Michigan Felony Sentencing Guidelines be used?
A: Guidelines are provided for most felony offenses and some two-year misdemeanors, and must be consulted if available.
Q: Must the judge always sentence within the Guidelines range?
A: No. Departure from the Guidelines range is permitted. A departure, however, must be accompanied by specific reasons why justice requires the particular sentence imposed, and must be stated both on the record, and on the Sentencing Information Report (SIR) provided by the Guidelines Commission.
Q: When must the Guidelines scoresheet be prepared?
A: Prior to sentencing.
Q: Must the Guidelines range be disclosed?
A: Yes, because all presentence information considered by a judge must be disclosed.
Q: May the Guidelines scoring be challenged?
A: Yes. The Guidelines scoring is subject to a challenge for accuracy, just as any other presentence information considered by the Judge.
Sentence BargainsQ: May a Judge participate in plea or sentence negotiations?
A: No. A Judge may not initiate or participate in discussions aimed at reaching a plea or sentence agreement.
Q: Is a Judge bound by sentence bargains between the defense and prosecution?
A: No. The Judge is not bound by defense-prosecution sentence bargains until he or she accepts them at sentencing. Until then, the Judge may reject the sentence bargain.
Proper and Improper ConsiderationsQ: What are proper considerations in determining what sentence to impose?
A: Certain basic considerations are:
(1) The possibility of reforming the defendant;
(2) The protection of society;
(3) The disciplining of the offender; and
(4) The likelihood of deterring others from committing like offenses.
Q: What are improper considerations in determining what sentence to impose?
A: The Judge may not:
(1) Penalize a defendant for refusing to plead guilty;
(2) Consider the defendant's refusal to admit guilt;
(3) Penalize defendant for exercising the right to a trial;
(4) Penalize defendant for demanding a jury trial;
(5) Penalize defendant for exercising the right against self-incrimination;
(6) Ask the defendant to take a polygraph, or consider the results of a polygraph, unless the defendant freely consents;
(7) Augment a sentence on the basis of a belief that the defendant lied under oath;
(8) Consider a prior felony or misdemeanor conviction if the conviction was obtained without benefit of counsel, or a valid waiver thereof;
(9) Consider prior convictions obtained in violation of defendant's constitutional right to counsel;
(10) Consider prior guilty plea convictions obtained in violation of Boykin v Alabama or People v Jaworski;
(11) Impose a sentence that is premised on the basis of race, religion, or national origin;
(12) Set a sentence in accord with any local sentencing policy, because a sentence must be individualized;
(13) Impose a sentence which is based in part on the criminal convictions of defendant's relatives;
(14) Use speculative legislatively authorized early release provisions, such as the Emergency Power Act, to justify augmenting a sentence;
(15) Sentence in violation of public policy.
Q: What is a delayed sentence?
A: A Judge may formally delay a sentence for the purpose of giving the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the rehabilitation of the defendant.
Q: For what offenses may sentence not be delayed?
A: Sentences may be delayed for all crimes except murder, treason, armed robbery, major controlled substance offenses, and first- or third-degree criminal sexual conduct.
Q: For how long may the sentence be delayed?
A: Sentence may be delayed for up to one year. After one year the court loses jurisdiction to sentence, except in the most limited and unusual of circumstances.
Q: What conditions may be imposed on the defendant during the delay of sentence period?
A: The Judge may require the defendant to participate in in-patient alcohol or drug programs. The Judge may require regular reporting to a probation agent. The Judge may require that defendant pay restitution.
Holmes Youthful Trainee ActQ: What is the Holmes Youthful Trainee Act (HYTA)?
A: HYTA provides Judges with a means of ordering rehabilitative treatment and/or confinement for up to three years for youthful offenders without proceeding to an adjudication of guilt and a criminal conviction.
Q: What are the age requirements for consideration under HYTA?
A: Youths who commit offenses between their 17th and 20th birthdays, and juveniles over 15 who have been waived from juvenile court, are eligible for HYTA status.
Q: Must the defendant consent to the use of HYTA?
A: Yes. Both the defendant and his or her guardian must consent.
Q: Must the prosecutor consent to the use of HYTA?
A: No. The statute does not require it.
Q: May HYTA status be terminated or revoked?
A: Yes. HYTA status may be terminated or revoked at any time in the discretion of the judge.
Q: What kind of proceedings are required before terminating or revoking HYTA status?
A: HYTA status may be revoked only after a hearing at which the defendant has a right to counsel. The defendant is entitled to notice of the charges, and a determination based on reliable information on whether a violation has occurred.
Q: What happens at the end of the HYTA period if successfully completed?
A:The statue does not specifically mandate dismissal of the charges, but they are apparently allowed to lapse as the statute does speak to "final release." All proceedings relative to the disposition of the criminal charge and to the assignment to HYTA status are to be closed to public inspection.
Q: What are the consequences of terminating or revoking HYTA status?
A: The criminal case against the youth shall be reinstated at the point where the youth's consideration as a youthful trainee had commenced.
7411 of the Controlled Substance ActQ: What is "7411" of the Controlled Substance Act?
A: "7411" is a statutory authorization to defer proceedings and impose probation with terms and conditions, without a judgment of guilt, for certain offenders charged with possession or use of certain drugs.
Q: Must the defendant have been found guilty before the judge uses "7411"?
A: Yes. The defendant must have pled guilty or have been found guilty of the offense, but no judgment of guilt is to be entered.
Q: Does the defendant have to consent to the use of "7411"?
Q: Does the prosecutor have to consent to the use of "7411"?
A: No. The statute does not require it.
Q: What happens at the end of the "7411" period if successfully completed?
A: Discharge of the defendant and dismissal of the charge upon successful completion of any conditions of probation is mandatory. The state police are to maintain a nonpublic record of an arrest and discharge or dismissal under the Act.
Q: May "7411" status be terminated or revoked?
A: Yes. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as provided.
Probationary SentencesQ: When may the judge impose a probationary sentence?
A: Probation may be imposed for all misdemeanors and all felonies except murder, treason, armed robbery, major controlled substances offenses, and first- and third-degree criminal sexual conduct.
NOTE: See Model Penal Code criteria to consider when placing defendant on probation, page 156 of Appendix.
Q: What is the maximum term of probation that may be imposed?
A: In general, the maximum term of probation is five years for felonies, and two years for misdemeanors. Life probation is authorized for some major Controlled Substance Act offenses.
Q: What other conditions may be imposed?
A: In general, the Judge may impose any conditions that are lawful and justified by the circumstances of the case.
Q: May jail time be imposed as a condition of probation?
A: Yes. The Judge may impose a maximum jail term of one year, or up to the maximum term of incarceration authorized for the offense if that is less than one year. Jail time may not be imposed to be served at the discretion of a probation agent.
Q: May residential treatment be required as a condition of probation?
A: Yes. Residential treatment may be imposed, in lieu of or in addition to, a jail term.