Landmark Decision Reverses Course For Michigan’s Sentencing Guidelines in Criminal Felony and High Misdemeanor Cases

Daniel Williams, Esq.

On Wednesday, the Court issued an opinion in People v. Lockridge, a link to which is attached above, which dismantles the way that convicted felons in Michigan have been sentenced since the “truth in sentencing” laws went into effect on January 1, 1999. The legislature enacted mandatory sentencing guidelines, which amount to a scoring equation, and based on the offender’s prior criminal record and the facts and circumstances of the case, a mandatory minimum sentence could be determined.

The sentencing Court was bound by that number, unless they could come up with “substantial and compelling reasons” to depart, either above (more time) or below (less time) than what the mandatory sentence under the guidelines scoring required.  The Court defined what substantial and compelling reasons meant in People v. Babcock, indicating that the Court could only depart upward or downward where evidence not taken into account by the sentencing guidelines was available to the Court.

The sentencing guidelines, however, could be scored based on the lower threshold of a preponderance of the evidence, and it was not required that the Defendant be found guilty of the offense for the sentencing guidelines to apply. 

In Lockridge, the Court has done away with all of that.  The sentencing guidelines are still in effect, but now they are advisory, where the Judge can use them as a guide, but he or she is not mandated to impose a minimum sentence within that range.  Nor can the guidelines be scored using a preponderance of the evidence standard.

The Michigan Supreme Court has brought Michigan’s sentencing scheme in line with that used by the Federal Courts.   In Lockridge, the Court made clear that based on rulings from the United States Supreme Court, the notion that facts could be used in sentencing that had not been proven beyond a reasonable doubt was a violation of a Defendant’s Sixth Amendment Right to a Fair Trial.  Furthermore, rather than needing a substantial and compelling reason to depart from the guidelines, a sentencing Court’s determinations will be reviewed by an appellate court only for a determination that the sentence imposed was reasonable. 

The result is that the Court has now returned Michigan to an age where judicial discretion is the norm for criminal sentencings.  The results are both positive and negative for convicted offenders.  While judicial discretion in the imposition of sentences means that a Court can look at the individual circumstances of each case and make individualized, Defendant specific sentencing determinations, there are some draw backs.

Advising clients as to what the possible sentence for a crime is going to be is a far easier task when the sentence is mandated by the sentencing guidelines.  The minimum score is determined by the guidelines calculation, unless the case was particularly egregious.  Now, there are a lot more variables in determining what an appropriate sentence might be, and what factors will ultimately be considered by the Court in trying to fashion an appropriate sentence.

Frankly, the Lockridge opinion makes having a knowledgeable and experienced criminal defense attorney all that much more important.  Only time will tell if this return to an age of widespread judicial discretion provides a better sentencing scheme, or provides a system of inequity similar to what led to the creation of the sentencing guidelines in the first place.

When judicial discretion is the norm, having an attorney who is familiar with the system, and has experience with how Judges will handle a criminal defendant who is being sentenced before them can be invaluable.  As a former assistant prosecuting attorney, Dan Williams is very familiar with the criminal justice system, criminal procedure, and with the Judges who preside on Wayne County’s Criminal Bench.  If you have found yourself on the wrong side of the law, give us a call to see about taking your case on today.

Former Nursing Home Employee Terrorizes Resident in Michigan

Daniel Williams, Esq.

The arrest of 21 year old Tyler Malone serves as a reminder that nursing home abuse does not have to simply be physical abuse, but can also take form as emotional and mental abuse.

While working in 2014 as a resident assistant at Life House Crystal Springs in Gaines Township, Michigan, he targeted an 86-year-old female resident to prey on. The abuse he inflicted was equivalent to psychological torture. He harassed her with repeated phone calls; threw shoes at her; dumped water on her; made threats of sexual assault; and stalked her.

Kent County sheriff’s deputies were made aware of his actions from family members and coworkers, who quickly arrested the suspect. He is charged with second-degree vulnerable adult abuse and stalking and is currently held in the Kent County Jail.

Sadly, there are more people like Malone still employed at assisted living facilities around the state. Their method of abuse leaves victims with emotional scars instead of physical scars. With no visible injuries, it is difficult to prove any abuse has taken place, especially if the aggressor uses scare-tactics to keep the victim silent.

This is why it is paramount for victims of elder abuse to speak up immediately. Family and friends also need to be vigilant when visiting the elder in a nursing home. Your family deserves aggressive representation to ensure your loved ones' rights are protected. No citizen deserves that kind of neglect or harmful treatment.

If you suspect a care facility or in-home care service has acted negligently, you need to contact attorney Dan Williams immediately. As a former Assistant Prosecuting Attorney for Wayne County in the Elder Abuse Unit, and a current elder abuse attorney for Fausone Bohn LLP, he has vast expertise handling these types of cases. He will fight to ensure that all involved in the matter are held accountable, and is prepared to go to trial if need be.

Give us a call today for a consultation on your case. 

Dementia, Alzheimer's Puts Seniors in Financial Danger

Daniel Williams, Esq.

As people age, they are increasingly at risk to develop cognitive impairments or suffer from dementia and Alzheimer’s. Recent studies have estimated around 11% of Americans aged 65 or older have Alzheimer’s. As those diseases progress, the person suffering from them loses the ability to do daily tasks and to care for their financial needs. 

When those persons begin to exhibit problematic financial behavior, it may be a sign that they are in need of either someone to take power of attorney or to have a guardianship and conservatorship in place to allow someone else to look after those everyday needs.

While those processes are important and necessary, there is also the possibility of exploitation as well. Since Americans over the age of 50 control over 70% the nation’s wealth, they are a highly-valued target for scammers. The common fear for persons suffering from dementia and Alzheimer’s disease is that they are susceptible to phone scammers and home-visits from strangers who use phony stories of tragedy and empty-promises to swindle victims.

While these predators will continue to be a cause of concern as the technology boom creates new opportunities for exploitation, they are not the only ones we should worry about. There is another set of individuals whose familiar face and established relationship allow them to operate undetected.

This group, of course, is the family members of the victims. In some instances, it is the person holding power of attorney, or who has been appointed guardian and conservator who tries to take advantage of their elderly, and disabled family member.  According to the National Council on Aging, in elder abuse cases with known perpetrators, 90% are family members.

The amount of abuse and exploitation done by family members to an elderly or disabled person is substantial and is terribly underreported. A conservative estimate places the total financial loss due to theft/deceit enabled by a trusting relationship at $6.6 Billion per year. If all abuse was uncovered, this amount would be significantly higher.

Many times, even when the abuse is discovered, there is a lack of desire to use the court process, in all of its forms, criminal, civil and probate, to try and recover the lost assets and to enforce criminal sanctions for the conduct. It is estimated that for every one case of elder abuse, neglect, or exploitation, about 5 more go unreported. The simple fact is, there is no reason that anyone, including a family member, can simply be left to take care of another person without being watched.

There are pros and cons to both Powers of Attorney and guardianships and conservatorships.  However, it is important that more than one person keep an eye on how the persons in those capacities are handling mom and dad’s money, once they are unable to do it for themselves any longer.

There are criminal and civil remedies that can be implemented to try and recover and punish persons who exploit the elderly.  As a former Wayne County Assistant Prosecutor, I was assigned to the Elder Abuse Unit and saw more than my share of financial exploitation cases.  Most of the Defendants that I dealt with in that arena were family members, or persons that the victim trusted.  While there are criminal charges that can be levied against the offenders, there are also civil remedies as well, which provide an avenue by which the aggrieved elder can be made whole and obtain a money judgment to hopefully have their finances restored.

If you suspect that a family member has been the victim of elder abuse or financial exploitation, the attorneys at Fausone Bohn, LLP have the experience and knowledge to ensure that justice can be obtained on your behalf.

See more on this story here: http://www.detroitnews.com/story/business/personal-finance/2015/07/05/dementia-puts-seniors-risk-financial-abuse/29744885/

Minors Expungement

Melissa Cox, Esq.
 

In December of 2012, Michigan enacted a new law that makes it easier for people to wipe (or “expunge”) juvenile crimes off their record.

Public Act 527 of 2012 allows a person to expunge up to three misdemeanors, or one felony, a year after the offender completes their sentence and probation.  The previous law only allowed for one misdemeanor to be erased 5 years after the case was closed and did not allow felonies to be expunged.

There are a few exceptions under the new law.  For example, felonies punishable by life in prison and traffic tickets cannot be expunged.

The bill’s sponsor, Rep. Joe Haveman of Holland, says that this new law will help people who made bad decisions at a young age and are now facing difficulty entering college or the military, or finding employment.  He believes that this bill strikes a balance between the need to be tough on crime and alternatives for people who are behaving themselves.

The bill received rare unanimous approval in both the House and the Senate.  Governor Rick Snyder signed the bill into law two days after Christmas.

To read the text of the new law, please visit: http://www.legislature.mi.gov/documents/2011-2012/publicact/pdf/2012-PA-0527.pdf.

If you need help expunging a juvenile record, or have other legal questions, contact Attorney Melissa Cox at Fausone Bohn, LLP at (248) 380-0000 or online at www.fb-firm.com.