In cases prosecuted by the State of Michigan (either by the Attorney General or County Prosecutor), persons convicted of a felony, an attempted felony, or a high court misdemeanor offense may be subject to habitual sentencing when the person has at least one prior conviction for a felony, attempted, felony of high court misdemeanor. Habitual offender sentencing may result in a higher maximum possible sentence, a higher sentencing guideline range, and in some cases, a mandatory minimum sentence.
Prosecution Must Provide the Defendant with Sufficient Notice to Charge as a Habitual Offender
The Prosecution must provide notice to the Defense within 21 days of the Circuit Court arraignment to proceed with the sentencing enhancement. The Habitual information (which is often also referred to as a notice to seek sentence enhancement) is a written document that lists the date(s), location(s), and offense(s) that are being used for sentencing enhancement purposes. It also lists the maximum penalty allowable by Michigan law based upon the sentence enhancement.
How Does the Habitual Information Work?
If the underlying offense is a felony, attempted felony, or high court misdemeanor that carries a maximum penalty of over 1 year but less than 5 years, the following applies: Habitual Second Offense increases the penalty by 50%; Habitual Third Offense doubles the maximum penalty; Habitual Fourth Offense increases the maximum penalty to 15 years. For example, Domestic Violence 3rd Offense carries a maximum penalty of 2 years in prison without a Habitual Information. As a Habitual Second, the maximum penalty would be a total of 3 years. If the prosecution filed notice of a Habitual Third offense with an underlying Domestic Violence 3rd Offense charge, the maximum penalty become 4 years. As a Habitual Fourth, the maximum penalty for Domestic Violence 3rd Offense would be 15 years in prison.
If the underlying felony or attempted felony carries a maximum penalty of 5 years or more, the following applies: Habitual Second Offense increases the penalty by 50%; Habitual Third Offense doubles the maximum penalty; Habitual Fourth Offense increases the maximum penalty up to life or a term of years to be determined by the Court. For example, the offense of Uttering & Publishing carries a maximum penalty of 14 years in prison when there is no Habitual Information filed. Uttering & Publishing with a Habitual second notice carries up to 21 years in prison. Uttering & Publishing as a Habitual Third is a 28 year maximum felony. Uttering & Publishing as a Habitual 4th carries a maximum sentence of life in prison or a term of years to be set by the court.
The use of a Habitual Information, again, will increase the guideline range against a Defendant. For example, if a Defendant had a sentence guideline range of between 0 and 11 months without a Habitual Information, as a Habitual 2nd the guidelines may increase to between 0 and 13 months, 0 to 16 months as a Habitual 3rd, and 0 to 22 months as a Habitual 4th. Sentence guidelines take into consideration a variety of factors concerning a Defendant’s prior criminal history, and the sentencing offense itself. A Defendant should discuss sentencing guideline issues with his or her lawyer.
Is A Prior Juvenile Conviction Subject to Be Used Later in a Habitual Information?
A prior adult conviction for which the Defendant received a juvenile sentence (for an offense that the Court had the discretion to sentence the Defendant as either an adult or juvenile sentence) could be used to support the sentencing enhancement under the Habitual Offender Statues.
Is a Prior Conviction Under the Holmes Youthful Trainee Act or 7411 Subject to Use In A Habitual Information?
Prior offenses that are suppressed from a public record due to the Defendant receiving Holmes Youthful Trainee Act (HYTA) or MCL 333.7411 are not subject to being part of a Habitual Information or enhanced sentencing. However, the scoring of sentencing guidelines may be affected by such a prior offense.
If The Defendant Is Charged With A Misdemeanor Offense, Is He or She Subject to Habitual Offender Sentencing?
Sometimes. As long as the underlying offense carries a maximum penalty of over 1 year, it is likely that a Habitual Information can be filed against the Defendant. For example, the offense of 4th Degree Criminal Sexual Conduct is a 2 year maximum high court misdemeanor and would be subject to the filing of a Habitual Information against the Defendant if the Defendant had the applicable criminal history. However, if the 4th Degree Criminal Sexual Conduct charge was reduced to Attempted 4th Degree Criminal Sexual Conduct, which carries a maximum of 1 year in jail, the Habitual Information would no longer apply.
Can Prior Misdemeanor Convictions be Used as Part of a Habitual Information?
Sometimes. Again, prior high court misdemeanor convictions can be used as part of a Habitual Information. Attempted felony and/or high court misdemeanor convictions are also subject to use in a Habitual Information, even if the penalty for the attempted felony and/or high court misdemeanor is 1 year in jail.
Mandatory 25 Year Sentence
Pursuant to MCL 769.12(1) If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony. Pursuant to MCL 769.12(1)(a) If the subsequent felony is a serious crime or a conspiracy to commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies, the Court shall sentence the person to imprisonment for not less than 25 years. Not more than 1 conviction arising out of the same transaction shall be considered a prior felony conviction for purposes of this subsection only.
The Michigan legislature has decided that the serious crime includes the following: 2nd Degree Murder; Manslaughter; Assault with Intent to Commit Murder (AWIM); Assault with Intent to do Great Bodily Harm (Assault GBH); Assault with intent to Maim; Assault with intent to Rob (armed or unarmed); Armed Robbery; Carjacking; Kidnapping; Kidnapping Child under 15 years; Prisoner taking hostage; Mayhem; 1st Degree Criminal Sexual Conduct (CSC); 2nd Degree Criminal Sexual Conduct; 3rd Degree Criminal Sexual Conduct; Assault with Intent to Penetrate; Conspiracy to do any of the above offenses.
The Michigan legislature has determined that the listed prior felony which would lead to the 25 year mandatory minimum in the manner stated above, includes the following: 2nd Degree Murder; Manslaughter; Assault with Intent to Commit Murder (AWIM); Assault with Intent to do Great Bodily Harm (Assault GBH); Assault with intent to Maim; Assault with intent to Rob (armed or unarmed); Armed Robbery; Carjacking; Kidnapping; Kidnapping Child under 15 years; Prisoner taking hostage; Mayhem; 1st Degree Criminal Sexual Conduct (CSC); 2nd Degree Criminal Sexual Conduct; 3rd Degree Criminal Sexual Conduct; Assault with Intent to Penetrate; Death, firearm pointed without Malice; Felonious Assault (FA); Attempted Murder; Aggravated Stalking; Felony Stalking, victim under 18 years; Resisting and Obstructing, death; Resisting and Obstructing, serious impairment; Rioting in state correctional facility; Any drug offense punishable by more than 4 years; 1st Degree Home Invasion; 2nd Degree Home Invasion; 1st Degree Child Abuse; 2nd Degree Child Abuse; 1st Degree Vulnerable Adult Abuse; 2nd Degree Vulnerable Adult Abuse; Assault of employee during escape; 1st Degree Fleeing and Eluding (death); 2nd Degree Fleeing and Eluding (injury); Impaired Driving Causing Death; Arson of Dwelling; Carrying weapon unlawful intent; Carrying a concealed weapon (CCW); Felony firearm (second or subsequent offense); Intentional discharge of firearm at vehicle; Intentional discharge of firearm at dwelling; Intentional discharge of firearm at emergency or law enforcement vehicle; Attempt or Conspiracy to do any of the above offenses.
Again, there must be three prior convictions. The three prior conviction offenses must be based on separate transactions. Even though the applicable sentencing guidelines for the offense may be well below 25 years, the mandatory minimum sentencing would still apply.
Challenging a Habitual Information
A Defendant may challenge a Habitual Information at the time of sentencing. The information may be challenged because it does not accurately reflect the Defendant’s prior record, because it did not provide sufficient notice, or if timely notice of the Habitual information was not given. The prosecution would have to establish the prior conviction by a preponderance of the evidence. Typically this is done by the prosecution obtaining certified records of the prior conviction, the probation department making contact with the Court that imposed the prior sentence, etc. Mistakes are sometimes made by the Prosecution, and it is important for the Defendant and his or her lawyer to challenge such mistakes.
A lawyer is also sometimes able to avoid the penalties contained in a Habitual Information by the plea bargain process. Naturally, if the criminal defense lawyer is able to gain acquittal at trial of the felony, attempted felony, or high court misdemeanor offenses which the Defendant is facing, the Habitual Information also no longer would apply in that circumstance.