Diversion Programs and Delayed Sentences

Diversion Program

Lansing Michigan Criminal Defense Attorney

When convicted of a crime, it will remain on your record forever. Usually. The good news is that not everyone has to worry about having their career or future ruined because of one bad choice or an error in judgment. The Michigan legislature has recognized that some people deserve a second chance and shouldn’t have their clean slate tarnished for every future employer to see. There are some ways you can keep a criminal conviction off your record. Some only apply to certain ages or certain offenses. These are known as diversion programs and deferred or delayed sentencing.

Diversion Programs

Diversion programs are a way for defendants to keep a criminal matter off their public record without having to plead guilty or go to trial. They are usually for low level offenses such as misdemeanors and non-violent felonies. Each court has its own criteria for diversion. There will be limits as to the types of offenses that are permitted and there may be residency requirements. The programs are usually reserved for first-time offenders. It is not an expungement, which is removing a conviction from your record after it has been on your record for a period of time. Diversion programs and delayed sentencings are better than expungements because if successful, the file is suppressed (non-public) from the beginning.

The way it works is that the prosecutor will dismiss your case without prejudice (meaning it can be re-filed) upon the contingency that you successfully complete the diversion program. Again, each court is different but it usually involves classes, fines, and community service. The length of the diversion and the types of class you participate in are determined by the type of offense. If you successfully complete diversion, the prosecutor will not re-file the charges and the matter will not appear on your public record. Diversion is frequently used for shoplifting or retail fraud, theft offenses, and sometimes non-violent felonies. An experienced Michigan criminal defense attorney that is familiar with your court should be able to tell you if you are eligible for diversion and can help you get in.

Holmes Youthful Trainee Act (HYTA)

The Youthful Trainee Act (HYTA or YTA) is a special sentencing option available to defendants who commit crimes between the ages of 17 and 24. The age requirements are strict. If you commit a crime at 12:01 a.m. on your 24th birthday, you are not eligible. Not every offense is eligible for HYTA either. Youthful Trainee Status cannot be given for any offense that has a potential life sentence (murder, armed robbery), criminal sexual conduct, a major controlled substance offense (drug dealing or possession with intent to deliver), or a traffic offense (OWI, Reckless Driving). Also, if the offense occurs between the ages of 21 and 24 the prosecutor must agree to HYTA or else the judge has no authority to grant it. Upon successful completion of your sentence, you will not have a public record of the offense. You must plead guilty in order to get HYTA, meaning you cannot receive it by pleading no contest or by being found guilty at trial. You can receive it more than once, but be wary that many judges are reluctant to give it multiple times.

7411 for First Offense Use or Possession of Controlled Substance

Under MCL 333.7411, you can receive a deferred conviction for possession of a controlled substance or use of a controlled substance. In other words, it only applies to drug use or drug possession. It cannot be given for any other controlled substance offense such as maintaining a drug house, possession with intent to deliver, etc. There is no age requirement but the caveat is it can only be granted once in your lifetime. Like HYTA, upon successful completion of your sentence (usually probation) you will not have a public record of the offense. Not only does it keep your record clean, but it prevents the mandatory driver’s license sanctions as well. You maintain a clean slate and keep your license. Unlike HYTA, you do not necessarily have to plead guilty to get 7411. You can request it if you have been found guilty at trial. However, be aware that many judges are hesitant to do so, especially if the prosecutor was agreeing not to object to your 7411 petition as an enticement for pleading guilty. It’s a risk you take.

769.4a for Domestic Violence Charges

Under MCL 769.4a, you can receive a deferred sentence for a domestic violence conviction provided that you have no prior assault convictions. Probation is the usual sentence but there could be some jail. Often you will have to take some sort of anger management classes or alcohol or drug treatment if they believe that is a problem. Like HYTA and 7411, you will have no public record of the offense if you successfully complete your sentence. Like 7411, you only get to use it once.

Minor in Possession of Alcohol (MIP)

For first offense MIP charges, a defendant can be granted a deferred sentence under statute, meaning he will not have a public record upon successful completion of probation which could include community service, alcohol prevention programs, and an alcohol substance abuse assessment. It can only be granted once.

Delayed Sentence

If you are eligible and the prosecutor and judge both agree, the sentence on your conviction may be delayed up to a year. In the meantime, you will be placed on probation under standard bond or probation conditions. After the year is up, you come back to court and your conviction can either be reduced to a lesser charge (misdemeanor or civil infraction) or in some cases completely dismissed, depending on what your agreement was. It is also commonly used in failure to pay child support cases.

Again, this is usually for first time offenders who are given on opportunity to show the court they are not likely to reoffend or commit crimes. You cannot get a delayed sentence for murder, treason, criminal sexual conduct in the first or third degrees, a major controlled substance offense, or armed robbery.

Michigan Sentencing Attorney

If you are charged with a crime, there may be options available to you that could keep your record clean. That means you can honestly tell future employers, colleges, and landlords that you have not been convicted of a crime. Michigan even has a law preventing employers from asking potential employees about misdemeanor convictions that have been diverted or deferred. This is something to discuss with your Michigan criminal defense lawyer if you find yourself being accused of a crime. A bad decision does not have to place an eternal scar on your record. If facing criminal charges, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense attorney!

 

Defending criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Shiawassee, Livingston, Kent, Washtenaw, Barry in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, St. Johns, Ithaca, Grand Rapids, Ann Arbor, Hastings, Corunna, Durand.

Michigan Sentencing Guidelines

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 Lansing Michigan Criminal Defense Attorney

 

 

 

 

 

 

The Michigan Sentencing Guidelines were created by the state legislature to give judges a range on how to sentence someone convicted of a felony. A lot of factors are considered and weighed into the formula including the nature and type of offense(s) and your past criminal history, if any. Before the guidelines were established, sentencing was left to the discretion of the judge with no guidance on what sentence to impose. In some extreme cases, the judge could impose anywhere from county jail time to life in prison. The Michigan legislature created guidelines not only to help judges determine what an appropriate sentence should be, but to prevent potential judiciary abuse.

 

Before the sentencing guidelines, the Michigan Supreme Court held in People v Coles that the appellate courts could review a sentence for “abuse of discretion” that “shocked the conscious.” This standard proved to be far too vague to have any meaningful impact. Seeing the errors of their way, the Michigan Supreme Court held in the 1990 case of People v Milbourn that sentencing discretion would be reviewed to determine whether a sentence was proportionate to both the offense and the offender. Inbetween these decisions, Michigan’s highest court established a task force to consider developing sentencing guidelines. These would be used to help determine an appropriate sentence and to give judges guidance and to rein in judges who wished to impose the strictest and most severe sentence possible regardless of the offense. After much debate and revisions, the sentencing commission proposed a final set of sentencing guidelines that were enacted and became law in 1998. Also included was a provision stating that prisoners serve their minimum sentence before being eligible for parole regardless of good behavior. This became known as the “truth in sentencing” policy.

 

Scoring Variables

 

Crimes against persons are treated more severely than crimes against property. Past criminal history is taken into account as well. A measured weight is assigned to each of these factors. The defendant’s past criminal history is scored for points in what is called the Past Record Variable, or PRV. The current offense that the defendant is convicted of is scored for points in the Offense Variable, or OV.

 

Past Record Variable (PRV)– The defendant’s criminal history is divided into seven categories including: high severity felonies, low severity felonies, high severity misdemeanor convictions, low severity misdemeanor convictions, defendant’s current relationship with the criminal justice system if any (parole, probation), and contemporaneous felony convictions.

 

Offense Variables (OV)– There are 19 possible offense characteristics such as if a weapon was used, was there physical or psychological harm to the victim, exploiting a victim’s vulnerability, contemporaneous felony acts, continuing pattern of felonious acts within five years, the value of the property taken.

 

The prior record level and offense severity level create a sentencing grid with a minimum to maximum sentence. For example, your grid might be 5-12 months which gives the judge a range on which to sentence you.

 

Cell Types

 

There are three types of sentencing cells: 1) Prison Cell—prison is required, 2) Intermediate– precludes a prison sentence, and 3) Straddle– Either prison or alternative sanctions, including jail, can be imposed.

 

In a straddle cell, the lower limit must be one-year or less and the upper level must be more than 18 months.

 

Who Does the Scoring?

 

The Sentencing Guidelines Appear for Circuit Court convictions in what is known as a Pre-Sentence Investigation Report or a PSI. This is done by a probation officer which is an employee of the Michigan Department of Corrections. They review the current conviction and the past history of the defendant and conduct an interview with the defendant for their side of the story. At the conclusion, the probation officer makes a recommendation to the court as to what the sentence should be and the reasons for that recommendation.

 

Does the Judge Have to Sentence Within the Guideline Range?

 

No! For years the judge had to sentence within the guideline range or the judge would have to state “substantial and compelling reasons” on the record for any deviation. Some judge were more apt than others to exceed the guidelines, but it was still unusual. Now, thanks to a recent court ruling in the People v Lockridge, the sentencing guidelines are now “advisory” meaning that judges are not compelled any longer to follow it. Judges now have full discretion to deviate either upward or downward from the guideline range. It’s a two edged sword– it could benefit a defendant if a judge sentences lower than the guideline range, but it could be worse if the judge deviates upward. Much worse. This makes sentencing negotiations and sentencing agreements (Killebrew and Cobbs agreements) and recommendations more important than ever.

 

Guideline Range

 

The sentencing guideline range gives the judge an idea as to what type of sentence to impose. The prosecutor will usually argue for the defendant to be sentenced in the upper part of the cell or sometimes they will ask the judge to sentence beyond the cell range. The defendant usually argues to be sentenced in the lower part of the cell or for intermediate sanctions, such as rehab, if applicable. Sentencing is a very important phase and allocution can play a pivotal role which is why it is important to bring out good factors that could persuade the judge to give you a more favorable sentence and not just blindly adopt the recommendation of the probation department or the prosecutor. It is also critical to carefully evaluate the Pre-Sentence Report to make sure everything is scored correctly.

 

Sentencing is a critical part of any criminal case. Most successful appeals are granted on sentencing errors. That is why it is important to have an experienced Michigan criminal defense attorney representing you at your sentencing hearing to raise objections to scoring guidelines and preserve issues for appellate review. Call Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan Criminal Defense Lawyer today.

 

Representing Criminal Defense Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.