Can a Michigan Judge Exceed Sentencing Guidelines

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.

A Judge will typically make a clear record when explaining his or her rationale to go outside the sentence guideline range.  There are several common responses a Judge gives when going upward from the sentence guideline range, including: 1) the Defendant’s prior involvement in the judicial system did not deter him or her from reoffending (the Defendant did not learn his or her lesson); 2) the extent of the Defendant’s action in committing a crime (for example, if the Defendant was convicted of stalking, a rationale may be the length of time that the stalking occurred, the large number of communications sent; the types of threats made to the victim, etc); 3) preventing the Defendant from continuing his or her pattern of reoffending with the same type of offense; 4) the sentence does not take into account the amount of damage to the victim (for example, if the Defendant was convicted of embezzlement, and the crime caused a large financial loss, the loss of the business, etc.).

If the Appellate Court is convinced that the Judge adequately explained why the deviation was more proportionate to the offense and the Defendant’s background as opposed to a sentence within the sentence guideline range, the Appellate Court will likely uphold the sentence that was imposed.  Obviously, upon appeal the Appellate Court also takes into consideration if there was any other error that occurred, and whether or not that error effected the outcome of the case.  Without a showing of error, an appellate court is likely to affirm the conviction or convictions.  Appellate Courts typically do not reverse convictions and sentences, because there is a general policy that the Judge/jury are in the best position to judge a case, affirming convictions gives the public confidence in the judicial system, and the need for finality.

When it comes to sentencing, the Defendant’s lawyer should do everything in his or her power to ethically try to convince the Judge to be lenient.  In some circumstances it may involve presenting the Court with a sentencing memorandum to give the Judge a balanced perspective concerning his or her client (something that a court appointed lawyer may try to avoid, because in State of Michigan court proceedings they are [as of the date of this blog] typically not compensated to draft a sentencing memorandum).  The contents of a sentence memorandum is left to the creativity of the lawyer.  It may involve letters of support, proof of employment, psychological assessments, a detailed accounting of the case history (including mitigating factors), family history, health issues, alternative sentencing considerations, etc., etc).  Often in litigating criminal cases, there is only one opportunity to achieve the best possible result.

It is important to remember that a lawyer can be retained at any part of the proceedings.  Just because a lawyer represented a particular Defendant through conviction does not mean that the same lawyer is required to stay on for sentencing.  The Defendant and his/her family should consider the quality of the legal representation that was provided through the conviction, and contemplate whether or not a fresh perspective or approach is needed at sentencing.  By the time a Defendant faces sentencing, he or she has a pretty good idea as to the quality of the legal representation that has transpired thus far.  If the legal representation was uninspired before, why would you expect that to change at sentencing?

For outstanding legal representation for all criminal law matters in the State of Michigan, contact attorney Daniel Hilf.

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