In some cases, a Defendant facing sentencing in Michigan must hope that the sentencing Judge will decide to deviate from the existing sentence guideline range to avoid incarceration. If the Judge chooses to depart from the sentence guideline range, the sentencing Judge must make an appropriate record as to the reasons for the guideline departure to withstand appellate scrutiny from the Michigan Court of Appeals and the Michigan Supreme Court.
Under MCL 769.34(3), the sentencing Judge may depart from the appropriate sentencing range established under the Michigan Sentencing Guidelines if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. The judge shall not use an individual’s gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
The sentencing Judge shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight. The Judge's reasons must be objective and verifiable, must keenly or irresistibly attract the court’s attention, and must be of considerable worth.
However, in addition to articulating the reasons for departing from the guidelines, the sentencing Judge must justify the particular departure made, in terms of looking at the proportionality of the sentence imposed. In determining whether a sufficient basis exists to justify a departure, the principle of proportionality defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed. There must be a clear connection between the substantial and compelling reasons for departure and the extent of the departure. Moreover, the sentencing Judge must explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation.
The proportionality review looks at whether the sentence is proportionate to the seriousness of the Defendant’s conduct and to the Defendant in light of his criminal record. The Michigan Court of Appeals notes, however, that the sentencing Judge is in the best position to view the facts and circumstances of the particular case. If the judge imposes a minimum sentence that is longer or more severe than the appropriate sentence range, the court shall advise the defendant on the record and in writing that he or she may appeal the sentence as provided by law on grounds that it is longer or more severe than the appropriate sentence range.
Different Judges have different beliefs as to sentencing: some are more conservative than others; there are certain offenses that some Judges find more reprehensible than others; some Judges look to probation to provide the proper sentence, and the probation department will almost never recommend a downward departure from sentencing guidelines. It is the luck (or unluck) of the draw that determines who the Judge is, which can influence the likelihood of a downward deviation from sentence guidelines.
In some cases the Defense attorney needs to file a sentencing memorandum to try to convince the assigned Judge as to the appropriate sentence, and provide reasons to support the guideline departure. A sentencing memorandum, along with an effective presentation to the Court on behalf of the Defense lawyer and the Defendant at the time of sentencing, can be persuasive when advocating for a departure from the Michigan Sentencing Guidelines. Hiring the right criminal defense attorney is sometimes a critical part of achieving the right result.
A couple of options that help avoid a harsh sentence that do not call for a deviation from sentencing guidelines include Holmes Youthful Trainee Act, and the SAI MDOC Boot Camp program. These sentencing provisions however, are not available to every Defendant and sometimes do not apply to a specific charge.
Sometimes in life you only have 1 opportunty to reach the right result.
Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.