If you have been charged with and convicted of a felony in Michigan, then it will be important for you to know and understand the sentencing guidelines. From a historical perspective, sentencing guidelines were intended to accomplish several things, one of which was to remove the possibility of discriminatory sentences. Because there is a certain amount of objectivity to the calculation of sentencing guidelines, a wealthy white male should be sentenced in the same range as a poor black woman.
How Do Sentencing Guidelines Work?
Generally speaking, each offense category has assigned to it a variety of offense variables and prior record variables. Points are assigned for each of these variables, tallied, and then applied to the appropriate sentencing grid. The results of both will cause your sentence to “land” within a particular cell that will dictate the appropriate minimum sentence.
All parties involved with your case will utilize these guidelines, including the judge, the probation officer, the prosecuting attorney, and your lawyer. If there is a failure to agree on how any of the various guidelines points should be scored then arguments for or against scoring these points will be made at or before sentencing, and the sentencing judge will decide how to resolve the discrepancies. Otherwise, the judge will use the agreed upon guidelines in determining the correct minimum sentence in your case. Sentencing guidelines do not dictate maximum sentences because the maximum sentence is set forth in the applicable statute.
Based on changes in Michigan law, guidelines are now considered “advisory” meaning they are no longer mandatory. A judge is free to sentence you within above or below the guideline range. Before you plead guilty your lawyer should discuss all of this with the judge so that you have a good idea of what kind of sentence you’re looking at before you enter your plea. If possible, a Cobbs agreement should be pursued. A Cobbs agreement will allow you to withdraw your plea and stand trial if the judge fails to give you the sentence promised when you tendered your plea.
How to Calculate Offense Variables
Your sentence guidelines will be dictated by a combination of your offense variables and prior record variables. Your offense variables are based on the specific facts of your case, and these are usually adduced using the police reports, or if there was a trial, possibly trial testimony as well. Here is a sample of offense variable ten for the “crimes against person” category. As you can see, points are assigned for the exploitation of a victim’s vulnerability. This might apply for example in a sexual assault case that includes facts of such exploitation. Points are assigned based on those facts as set forth in this offense variable. There are several other offense variables for this same crime category, and the tally will require an assessment of each.
Depending on the circumstances, case law may need to be consulted to determine if certain points should be scored. As it relates to offense variables, if you stood trial, then certain case law suggests that all facts used in guidelines calculations must have been proved, beyond a reasonable doubt, by the prosecutor at trial.
How to Calculate Prior Record Variables
Prior record variables work the same way as offense variables, except, as is obvious from the name, the points are based primarily on your prior criminal record. To calculate your prior offense variables, your criminal history is utilized and all prior crimes are assessed. Then, you are assigned points depending on if your prior crimes are high severity or low severity, and whether the prior offenses are misdemeanors or felonies. Certain time limits may also apply, and there are also other circumstances under which prior crimes are not properly utilized to assign points.
In addition to your prior criminal history, there are many other factors considering in assessing assignable points based on various prior record variables. These includes things such as as your relationship to the criminal justice system, whether this crime is a pattern of criminal behavior, and whether you have subsequent or concurrent convictions. All of these points are then tallied, placing you into an A – F level. The range begins at zero points and stops at 75+ points. After 75 points are no longer tallied.
What About Minimum Mandatory Sentences?
Complicating things further, some offenses have minimum mandatory sentences and these are not reflected in the guidelines. A minimum mandatory sentence is just what it sounds like, the minimum sentence you must serve, regardless of the circumstances, for the crime you have committed. Minimum mandatory sentences are set forth in statutes.
A common example of a felony crime with a minimum mandatory in Michigan is felony drunk driving. According to the law, for a third offense DUI with no habitual enhancement the maximum sentence is 5 years. However, for every third offense DUI felony case, there is a minimum mandatory 30 days. Those who are not familiar with these calculations might be confused and provide improper advice because it is not unusual for a felony DUI with no habitual enhancement to have a sentencing guideline range of either 0-6 or 0-9 months. Because of the minimum mandatory however, a sentence of 0 months is not really an option.
What About Habitual Enhancement?
If you are facing sentencing on a felony offense, and have prior felony convictions (or attempts to commit felonies), those prior felonies can subject you to habitual enhancement. In order for this to happen the prosecutor must serve you or your attorney with a habitual offender notice. This is usually provided, along with a copy of the felony information, at the circuit court arraignment. If you are charged as a habitual offender this raises both the minimum as well as the maximum possible sentence.
Habitual enhancement begins at habitual offender second for one prior felony conviction, and goes up to habitual offender 4 for three or more prior felony convictions. A habitual offender enhancement will increase your maximum sentence by either 25 percent for habitual offender 2nd, 50 percent for habitual offender third or 100 percent/life for habitual offender fourth.
What Will My Sentence Be?
Once all the points are tallied, the sentencing grids are consulted. As with offense variables and prior record variables, there are various grids, and which is utilized depends on the type of crime for which you have been convicted. Here is a sentencing guidelines grid utilized for class A felonies.
As you can see, if this was the appropriate grid for your case, and your guidelines calculation produces a result in the C-II category, your minimum sentence will fall into the range of 51-85 months. If you are a habitual offender, then the minimum would be 51-106, and so forth. You should discuss all of this with your lawyer and then use this information in deciding if it is in your best interest to plead guilty or stand trial. A proper calculation of your offense variables is essential.
Why an Attorney is Important
The application of the Michigan sentencing guidelines to a particular case is complicated and sometimes difficult. A full explanation of how the guidelines work and how they should be applied would require writing a book with many chapters and hundreds of pages. Consequently, this article is a very watered down explanation of how the sentencing guidelines work. There are other factors that might apply, and there is often much debate as to whether some offense or prior record variables should be scored.
If the scoring of certain points is debatable, a skillful defense attorney may be able to persuade your judge to forgo applying those points to your sentence guideline calculation. Also, it is sometimes possible, as part of plea negotiations, for your attorney to persuade the prosecutor to agree not to score certain points. If successful, either modification to the guidelines scoring may result in a significantly lower calculation, saving you months or even years spent in jail or prison. On the other hand, a sloppy or even negligent guideline calculation, or one that misses possible arguments or defenses, can result in needless time spent behind bars .