The information in this blog is general, and is not a substitute for consulting with a lawyer concerning the facts and circumstances of your or a loved one’s case.  Jurisdictions are not always consistent in the manner in which cases are processed and handled, and laws and procedures often change over time.  For any legal matter, contact an experienced lawyer immediately.  

Waiting to receive a court date is stressful.  There are many instances in which a court date is in limbo, leaving the individual to question what to do next to avoid trouble down the road.  Many choose to hire lawyers right away, which is an excellent way to protect themselves from unwanted surprises.  However, hiring a lawyer may not immediately or always solve the problem.

There are many reasons for delay for criminal cases.  One reason for delay that police officers many need additional time to conduct further investigations before issuing a ticket or seeking a warrant from a prosecutor’s office.  In cases involving alleged drug possession, distribution, or driving while impaired by drugs a delay occurs in seeking confirmation from a laboratory as to the nature and the amount of the substance in question.  The same is true for alleged drunk driving cases in which a blood draw occurs.  It is not uncommon for laboratory delays to take months.

Today (April 8, 2020) we received notice of approval of asylum concerning a case I successfully tried with attorney Sufen Hilf in December and January in Detroit Immigration Court.  It is not lost on us that we received this great news on a date when we would normally celebrate Passover in the evening with family gathered.

US Immigration and Customs Enforcement (ICE) chose not to appeal, and for over the past 6 months our client remained incarcerated like a criminal.  With the news received, our attention shifted toward obtaining transportation from the jail to someplace for him to go, which is not easy with this coronavirus quarantine era upon us.  Is it freedom to be released from a jail in the middle of nowhere, but have no way to get home?  Is freedom the same when you do not have a school, a job, an apartment, and country of birth to return to?  The friends and family that are always there for you are now under quarantine, and so you leave jail, but you are still isolated and you have to do most of the things you need to do on your own, just to get by.  For freedom I guess someone persecuted often gives up a lot to gain much more (if such gains and losses are even comparable).

Just like the Israelites finally tested freedom, so did our client.  Dayenu.  Just like the Israelites escaped persecution and imminent death, so did our client.  Dayenu.

This blog is not intended to be a substitute for legal representation.  It does not create an attorney client relationship. The advice given in this blog is general in nature, and may (or may not) apply to your own particular situation.  Immigration law is always changing, and the information provided here is subject to change at anytime.  Again, for anyone with an immigration issue it is recommended to hire an immigration lawyer immediately.

Asylum Strategies

1. Don’t delay.  Asylum cases are time sensitive.  If the application is not filed within 1 year of the applicants last entry into the United States the claim will be prohibited, unless an exception to the filing deadline applies.  Exceptions include a change in circumstances or extraordinary circumstances that prevented the timely submission of the asylum application.  If the lateness is due to a change in circumstance or an extraordinary circumstance, the filing must occur within a reasonable time after the changed or extraordinary circumstance.  If the asylum claim is barred, the applicant might find still relief under withholding of removal or the convention against torture (CAT).  However, these alternatives are harder to substantiate than asylum.  Also, memories can fade over time, so delay can impact the strength of a case.  Documents and records that corroborate a claim might become unavailable or destroyed after a period of time, so going forward in a timely manner is crucial.

Violations of Department of Natural Resources (DNR) Hunting and Fishing regulations in Michigan can result in many costly penalties:

  1. Most of these offenses are misdemeanors (low level crimes) that carry the potential for a jail sentence.  Some DNR offenses actually result in a mandatory period of incarceration – even for a first time offender.   Upon conviction a Judge can impose a period of probation, with conditions that may impact your ability to live your life in the manner you want.  The Judge has wide discretion to consider probationary conditions, such as community service, drug/alcohol testing, educational classes, inability to travel outside the State of Michigan, etc.
  2. For professions that require professional licensure or a security clearance, the ramifications of a conviction are very serious.   Some professional licensing boards require the disclosure of any criminal conviction, which can lead to discipline.  Many federal jobs, especially jobs requiring a security clearance, require a clean criminal history.  Most DNR violations are misdemeanor criminal offenses.  In our data driven society you should assume that a background search will likely reveal an arrest and conviction history.

Retail fraud convictions can have many bad consequences in a person’s life.  Incarceration, probation with harsh and expensive conditions,  loss of employment, damage to reputation, immigration problems for aliens, potential travel visa prohibitions, difficulties obtaining student and personal loans, professional licensing problems, fear, anxiety – the list of problems go on and on.

All of this for something petty, like shoplifting?  It was impulsive?  Prosecuted for a one time occurrence?  It wasn’t planned?  I offered to pay for the merchandise?  I am not a bad person.  Other people do it, I just got caught?  It was a mistake, an accident? Against a corporation – why should a wealthy corporation care about something like this?  I have a problem and I need help – not a conviction?  Am I going to jail?  If I am not a United States citizen, will I be deported or denied reentry to the United States?  Will this effect my career?  What will my family think?  What happens next?  How do I get out from under all of this?

Obviously, the fundamental key to the problem is to have the right legal representation.

For all felony and high court misdemeanors in State of Michigan court proceedings, the Judge is required to consider the applicable sentence guidelines.  Sentence guidelines are a formula that takes into consideration the Defendant’s prior record (Prior Record Variables), and characteristics of the conviction offense (Offense Variables).  Where the Prior Record Variables and Offense Variables intersect on a sentencing grid determines the recommended sentence guideline range.

An often asked question is whether or not the Judge is obligated to stay within the guideline range?.  The Michigan Supreme Court, in the case of People v Lockridge, 498 Mich 358 (2105), determined that deviations from the sentencing guidelines must be based upon reasonableness.  This changed the previously used judicial standard of substantial and compelling reasons to sentence outside of sentencing guidelines.  The standard under Lockridge gives the Judge much more discretion concerning the sentence he or she wants to impose.  The deviation from sentence guidelines basically needs to be both reasonable and proportionate for a Michigan appellate court to uphold the sentence outside of the guidelines that is imposed.  There are other limitations that a Court may have when it comes to sentencing, including: 1) the minimum sentence imposed cannot exceed 2/3rds of the maximum sentence; 2) if the Defendant has a Cobbs agreement (and has not violated any conditions set forth by the Court relative to the Cobbs agreement), the Court must give the Defendant the ability to withdraw his or her plea if the sentence the Judge wants to impose exceeds the Cobbs agreement; 3) sometimes the Defendant and Prosecution enter into a Killebrew agreement, which is essentially a sentence bargain.  Generally, if the Court is not willing to honor the terms of the Killebrew agreement the Defendant has the ability to withdraw his or her plea and go to trial.

So getting back to the question at hand, what does it mean that the deviation must be reasonable and proportionate?  Basically, the Court is obligated to provide adequate reasons for the extent of the deviation from the guidelines.  The Judge is allowed to depart from the sentence guideline range when the guideline range is disproportionate to the seriousness of the crime.  In this determination the Judge must take into account the nature of the conviction offense or offenses and the background of the Defendant, and the applicable sentence guideline range.  There are several factors related to this assessment, including: 1) the seriousness of the conviction offense or offenses; 2) factors that were inadequately considered by the sentence guidelines, such as [but not limited to] the relationship between the Defendant and the victim, any misconduct by the Defendant while in custody, the Defendant’s remorse, and the Defendant’s potential for rehabilitation (see People v. Steanhouse, 313 Mich App 1 (2015)).  The Judge is also allowed to consider protection of society as a reason to go higher than the recommended guideline range (see People v. Armstrong, 247 Mich App 423 (2001).  The Judge should consider the guideline range when justifying the proportionality of a deviation from it.

Whenever there is a unjust conviction in State of Michigan Courts, one of the questions that the Defendant and his or her family members raise is concerning the performance of defense counsel.  Establishing that the defense lawyer made a mistake is not dispositive that an injustice occurred.  Every trial may contain some amount of error.  The court system recognizes that lawyers are human, and do not always try the perfect case.  The issue to address is the degree of error that occurred.

The question of the existence of “ineffective assistance of counsel” can be a complex question.  In People v. Armstrong, 490 Mich 281 (2011), the burden in Michigan is placed on the Defendant to show that defense counsel’s performance fell below an objective standard of reasonableness.  Part of the consideration is to show that but for the deficient legal representation, a different result would have been reasonably probable.  The mere possibility of a potential different verdict or outcome is insufficient.  According to Harrington v. Richter, 562 US 86 (2011), the probability of a different outcome need only be “sufficient to undermine confidence in the outcome”.

What is an objective standard of reasonableness?  No two cases are alike.  When it comes to appellate proceedings or motions for relief from judgment, of course the transcripts of the previous court proceedings are paramount to the discussion.  However, sometimes all of the answers to the lawyer’s performance are not part of the court record.  For example, what if the Defendant provided his or her lawyer with an alibi witness who was never interviewed, listed on an alibi witness list, referenced during the trial, and/or called to testify at trial?  How will a Court know if the record is silent to the error committed?

Hunting laws in Michigan are always subject to revision.  It is important to become aware of any changes in the law before the beginning of any hunting season by reading each year’s Michigan Hunting Digest.

In Michigan, safety zones are considered to be all areas within 150 yards (450 feet) of any occupied house, building, cabin, barn, or any building used for a farming operation. Hunting with a firearm is prohibited within a safety zone unless the hunter has the written permission of the owner, occupant, or renter of the property.  Pursuant to Michigan Compiled Law 324.40111(7) a person who commits a safety zone violation may be charged with a misdemeanor that may subject the person to a maximum of 90 days in jail, probation with conditions, a fine of anywhere from $50 to $500, Court costs, and State fees.  The sentencing Judge also has the discretion to revoke hunting privileges pursuant to Michigan Compiled Law 324.43559.

It is important to note that safety zones apply to hunting only.   It does not include shooting ranges, target shooting, law enforcement activities, or the lawful discharge of firearms for any non-hunting purpose.

Please be advised that the following partial list of deer hunting charges and penalties in Michigan are always subject to change, and the information that you are reading is not a substitute for the services of a experienced criminal defense lawyer.  It is the responsibility of every Michigan deer hunter to update himself or herself of changes of the law every season for the State and for particular regions in the State where they hunt.  For all DNR and Deer Hunting related arrests, tickets, and charges the recommended criminal defense lawyer in Michigan is attorney Daniel Hilf.

Take Deer From a Motor Vehicle [ MCL 324.40111(1) ] – misdemeanor offense with mandatory minimum of at least 5 days in jail to a maximum of 90 days in jail, a minimum fine of at least $200 to a maximum fine of $1000,  Court costs and State fees, restitution for the deer, and the loss of hunting privileges for to remainder of the year of conviction plus 3 additional calendar years pursuant to MCL 324.40118(7).

Loaded or Uncased Firearm in a Motor Vehicle [ MCL 324.40111(2) ] – misdemeanor offense with a maximum of 90 days in jail, a minimum fine of at least $50 to a maximum fine of $500, Court costs and State fees,  and the loss of hunting privileges at the discretion of the Court pursuant to MCL 324.43559.

There are many instances when a person is arrested and charged with an offense years after a crime allegedly occurred.  Sometimes these persons serve time in jail or prison between the date of an alleged offense and the date that they are charged with that alleged offense.  This is troubling, especially in instances where the person would have been sentenced concurrently (serving the sentences at the same time) rather than consecutively (having the sentences stacked one after the other).

As a general rule, a Defendant does not have a speedy trial right to be arrested, and that speedy trial rights attach once the charge is filed against the Defendant.  The prosecution is prevented from going forward with a case if it is barred by the statute of limitations.

What can a Defendant pursue who falls into this gap in which a prosecution is delayed, but a prosecution is still lawful and actually pursued?  Generally, a Defendant will have to demonstrate to the court that he or she experienced actual and substantial prejudice results from the delay in his or her arrest on the charge.

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