Articles Posted in Courts

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.

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.

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 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.

Searching for the Best Rape Allegation Defense Attorney in Michigan?

Attorney Daniel Hilf of Hilf & Hilf, PLC provides zealous representation for individuals accused of rape (also known as criminal sexual conduct) throughout Michigan.  He will fight for your best case outcome no matter what the obstacle or accusation, if you retain his services to be your attorney.

Rape allegations have ruined and changed more lives than any other criminal offense.  The prosecution of rape cases are cluttered with huge injustices, because these cases are sometimes prosecuted with little or no physical evidence, significant factual inconsistencies, lack of corroboration, and/or after many years of delay.  When it comes to rape allegations there are many who assume the worst of the accused, which goes against the presumption of innocence and our essential Constitutional rights that in theory are supposed to eliminate false convictions.  The alleged victims of rape are given special attention and care by “victim’s advocates” and prosecutors, which may sound good when it relates to real victims of sexual abuse, but it also has the tendency to emotionally reward and protect persons who make false claims of rape.  Even with an alleged victim recanting an untrue rape accusation, the case against the accused is often not dismissed because the prosecution will argue that it is up to a jury to decide if the alleged victim was credible in their recantation or credible in their original statement.

Completing 2 back to back trials is always a difficult endeavor.  To be successful at any trial requires a lot of preparation, skill, and experience.

Recently I defended a difficult case before Judge Cheryl Matthews of the 6th Circuit Court concerning an allegation of Fleeing and Eluding in the Second Degree.  A large challenge when it comes to a defense of this allegation is that one of the elements of this offense is that the Defendant has a prior conviction for Fleeing and Eluding in either the 1st, 2nd, or 3rd Degree.  It is part of the jury instructions, and it cannot be removed from the jury’s consideration because it is an element and not an enhancement, even though this type of information is highly prejudicial.  In this case the best solution was to embrace this weakness and make it part of my defense.  The defense presented to the jury was that of misidentification.

The general facts to the case were that an officer from Hazel Park observed a speeding vehicle, and attempted to pull the vehicle over in a residential area.  The speeding vehicle briefly pulled over, and fled at a high rate of speed when the officer was about to step from his patrol vehicle.  At this point in time the officer claimed he was able to see the driver for about 1 to 2 seconds, from a distance of 45 to 60 feet away, looking at the driver from an angle as he turned from one street to another.  The pursuit ended at an abandoned area of the Michigan State Fairgrounds, when the fleeing vehicle smashed through a fence and the driver took off running.  Despite setting up a perimeter, and bringing to the scene a tracking dog, the police officers were unable to locate the driver of the vehicle.  The officer claimed that my client was the driver after looking at a driver’s license photo through a police database after the fact and concluding that this was the person the officer observed earlier that day.

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