Articles Posted in Crimes

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.

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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Troy Michigan based criminal defense lawyer was featured by the Legal News in an article titled “Get to Know Daniel Hilf” on March 15, 2018.

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The Legal News is a publication relied upon by lawyers and Judges throughout the State of Michigan.  The lawyers profiled by the Legal News are well known and respected in the legal community for their areas of practice, and it is a great industry wide honor for any lawyer to receive this acknowledgment.  Being featured by the Legal News is not an advertisement or other paid for promotion, and it is not something solicited directly by the lawyer receiving the Legal News’ recognition.   Determination is made by an internal selection process conducted by the Legal News.  Earlier this year his wife, immigration attorney specialist Sufen Hilf, also was profiled by the Legal News in a similar manner.

Kudos to attorney Daniel Hilf for a job well done.

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Being detained or even handcuffed for a shoplifting allegation is the worst feeling.  The biggest questions are: what will happen next?.  Will the store prosecute?  The store won’t prosecute, but the prosecutor for the city or county where the offense allegedly occurred will usually file a case.  The store will likely send a civil demand letter seeking money damages from $50 to $200.  The store will also provide all of its evidence to the prosecutor.  The evidence for larger chain stores will likely include: a report by a loss prevention officer, a photograph of the merchandise, a cash register receipt for the items involved in the offense to establish the value of the merchandise, in store video recordings, witness statements, and often a statement that it acquired from the Defendant.  The vast majority of stores will tell the person that they suspected of shoplifting to not come back or else a trespassing charge will be pursued.

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The next question may be, what will I be charged with?  In Michigan, shoplifting charges are determined by a few factors: the accused prior record, the amount of the merchandise and the intent of the accused.  Shoplifting charges in Michigan are called retail fraud, which has 3 different degrees.  First Degree Retail Fraud is a felony offense that carries a maximum possible punishment of 5 years in prison.  This offense is charged by a county prosecutor if the person accused alleged stole merchandise offered for sale at $1000 or more, or is the merchandise is offered for sale at $200 or more and the accused has a prior theft conviction.  For the offense of retail fraud, if the accused is alleged to have stolen from a store location on several different occasions the alleged theft amounts of the shoplifting can be added together to determine the charge that the accused will face.  Second Degree Retail Fraud is a misdemeanor offense with a possible penalty of 365 days in jail.  This offense involves either the shoplifting of merchandise from a store that is $200 or more, or it can occur if the price was under $200 if the accused has a prior theft conviction.  Third Degree Retail Fraud is charged when the merchandise was under $200.  There is a form of shoplifting that is a 5 year maximum felony called Organized Retail Theft.  The important part of this offense centers on the intent of the accused: Did the accused plan on selling what was allegedly stolen?  This offense is Michigan’s attempt to combat people who try to make a career out of stealing from stores.

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One of the most important questions from someone accused of shoplifting is what should I do now?  The immediate answer is that he or she should hire a lawyer.  Well, not any old lawyer – a lawyer that has experience with these types of cases.  An experienced shoplifting defense lawyer can help in several respects:

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Nervous about court?  Not many people like to testify under oath.  Scary, intimidating, emotional are how some describe court.  Others may also describe it is liberating (believing that “the truth shall set you free”).  Some people get enjoyment or feel it is a civic duty to tell on other people.    Their are also expert witnesses that are sometimes paid to offer an opinion in a trial.  There are many different ways and motivations for how someone becomes a witness to a case.  Regardless of the means that someone becomes a witness, knowing what to expect and how to handle the experience is critical.

  1.  Lawyer up!  Everyone has a constitutional right to retain legal representation in court.  It does not matter if you are just a witness to an alleged crime or a particular circumstance – you can hire a lawyer to help you.  There are several advantages to having your own legal representation.  First, you are able to have someone to consult with about your anticipated testimony.  Second, your lawyer can help you assert any privileges that you may have (5th Amendment privilege against self incrimination, spousal privilege, etc.) when applicable.  Third, when you are represented by counsel, the Prosecution and Defense counsel are supposed to go through your lawyer in an effort to question you.  Hence, having a lawyer is like having a buffer from other lawyers.  Fourth, it is difficult to be in court alone.  Having a lawyer can help with the stress and emotional strain of having to appear in court and testify.  Fifth, the lawyer can help assert your position about a case, when appropriate.  For example, in many cases the Court will order no contact between the Defendant and his spouse when the Defendant is charged with domestic violence against his spouse.  Sometimes domestic violence cases are blown out of proportion, and the lack of contact causes a hardship.  Having a lawyer may help convince the Court that the removal of the no contact provision is appropriate and necessary under the circumstances.  Sixth, having a lawyer can help prepare you for what you might be asked in Court.  Seventh, when appropriate a lawyer acting on behalf of a witness can try and negotiate with the Prosecution about the witness’s immunity from criminal prosecution.
  2.  Listen to your lawyer.  When your lawyer gives advice, it is probably for good reason.  Your lawyer more than likely has the educational background and courtroom experience needed to offer sound legal advice and to develop a strategy in connection with a case.  Persons who don’t listen to their lawyer often act at their own peril.  For Defendant’s, even though they have the absolute right to testify or remain silent, they should consider the advice and strategy of their lawyer in making their decision to testify or elect not to testify.  Witnesses, when properly subpoenaed, have no choice in the matter unless there is a privilege that can be asserted.  Properly subpoenaed witnesses must appear at court when subpoenaed and testify under oath when called.  It is important for a witness to realize that a prosecutor is not their lawyer; the prosecution represents the government and not any particular citizen.  Also, the only person who a defense lawyer represents is their client.  The defense lawyer is loyal to their client only, and is generally unable to represent witnesses due to a conflict of interest.

The great outdoors is suddenly not so great when DNR writes you a ticket.  The freedom you felt enjoying nature is now crushed and your day, season, and future hunting seasons are maybe ruined.  Many people do not know that some hunting violations (if convicted as charged) require a mandatory jail sentence.  Unfortunately, in the eyes of the State of Michigan the wildlife is its property and it determines the rules as to how you can lawfully possess it.  Ignorance of the law is not an excuse – that is why they give out the Michigan Hunting and Trapping Digest at the start of every season.  Because the state of Michigan are stewards of our natural resources, the DNR is charged with the enforcement of any violations of conservation laws and they take that responsibility seriously!

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It is always a good idea to understand the process of how a DNR officer may perform his or her duties.  This is even important for the sportsman or sportswoman who tries to do everything by the book.  Why?  It is possible for someone to unintentionally violate the law.  The conservation laws change from time to time.  Perhaps you were not aware of a change as it related to baiting?  Maybe the fish possession or size  limit changed from one season to the next?  In some instances you might be accused of doing something unlawfully even through it isn’t true.

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The following is my list of the top 10 Michigan DNR Investigation Strategies for Wildlife Violations:

Jail for a probation violation?  Seriously?  With a probation violation the Judge has that option.

Being incarcerated is no place for anyone to be.  Losing your job, losing a place to live, having to start over from scratch – life is hard enough without all this stress.  But maybe the Judge made things impossible.   You worry about work, worry about family, paying bills, and on top of that the Court is having you drug test, go to support meetings, hours and hours of community service.  It seems like maybe the Court does not want you to be successful.  You try your best and you still receive a letter in the mail for probation violation.  Your heart is racing.  Stress, anxiety, fear take over.  You ask yourself what should you do?

These are 12 proven and effective strategies that give you the best chance of avoiding jail.  This advice is from a seasoned lawyer with years of experience both inside and outside the courtroom.

A common question when someone is arrested for retail fraud is: “Will I be placed on probation?”.  Another common question is:  “Can I avoid Jail?”.  When a person is arrested there is often a fear of the unknown.  “What will happen to me?”.  “What will the Judge do?”.  Although probation is common for shoplifting, it is not guaranteed.

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All retail fraud/shoplifting cases are criminal cases, which means that the Judge always has the discretion to impose jail as a condition of bond or sentence.  There are a lot of different factors that can influence what will happen:

  1. The Defendant’s prior history.  Obviously, the worse a person’s prior record the more likely incarceration becomes an option.  This is especially true when the prior history also involves shoplifting.  When the charge is a Felony (1st Degree Retail Fraud or Organized Retail Fraud), the Defendant’s prior record is a factor in the computation of sentencing guidelines.  In Michigan, sentence guidelines are an advisory sentence range for a Judge to consider which is determined by the scoring of prior record and offense related variables.  Although sentencing guidelines are advisory, they are influential in terms of how a Judge determines the sentence.