Bill Text: MI HB4213 | 2021-2022 | 101st Legislature | Introduced

Michigan House Bill 4213 (Prior Session Legislation)

Introduced

Bill Title: Crimes: penalties; habitual offender guidelines; modify. Amends secs. 10, 11, 12 & 13, ch. IX of 1927 PA 175 (MCL 769.10 et seq.).

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2021-02-16 - Bill Electronically Reproduced 02/11/2021 [HB4213 Detail]

Download: Michigan-2021-HB4213-Introduced.html

HOUSE BILL NO. 4213

February 11, 2021, Introduced by Reps. Mueller and LaGrand and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 10, 11, 12, and 13 of chapter IX (MCL 769.10, 769.11, 769.12, and 769.13), sections 10, 11, and 13 as amended by 2006 PA 655 and section 12 as amended by 2012 PA 319.

the people of the state of michigan enact:

CHAPTER IX

Sec. 10. (1) If a person has been convicted of a felony or an attempt to commit a felony, serious assaultive crime, whether the conviction occurred in this state or would have been for a felony or attempt to commit a felony serious assaultive crime in this state if obtained in this state, and that person commits a subsequent felony serious assaultive crime within this state, the person shall must be punished upon conviction of the subsequent felony serious assaultive crime and sentencing sentenced under section 13 of this chapter as follows:

(a) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.

(b) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for life or for a lesser term.

(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(2) If a person has been convicted of a serious nonassaultive crime, whether the conviction occurred in this state or would have been for a serious nonassaultive crime in this state if obtained in this state, and that person commits a subsequent serious nonassaultive crime within this state, the person must be punished upon conviction of the subsequent serious nonassaultive crime and sentenced as follows:

(a) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.

(b) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may place the person on probation or sentence the person to imprisonment for life or for a lesser term.

(3) If a person has been convicted of a major controlled substance offense or an attempt to commit a major controlled substance offense, whether the conviction occurred in this state or would have been for a major controlled substance offense or attempt to commit a major controlled substance offense in this state if obtained in this state, and that person commits a subsequent major controlled substance offense within this state, the person must be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(4) (2) If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or a fraction of a year and the sentence so imposed shall must be considered an indeterminate sentence. The court shall not fix a maximum sentence that is less than the maximum term for a first conviction.

(5) (3) A conviction shall must not be used to enhance a sentence under this section if that conviction is used to enhance a sentence under a statute that prohibits use of the conviction for further enhancement under this section.

(6) As used in this section and sections 11, 12, and 13 of this chapter:

(a) "Serious assaultive crime" includes a serious assaultive offense or an attempt to commit a serious assaultive offense that is punishable by imprisonment for 2 or more years.

(b) "Serious nonassaultive crime" includes a serious nonassaultive offense or an attempt to commit a serious nonassaultive offense that is not a major controlled substance offense and that is punishable by imprisonment for 2 or more years.

Sec. 11. (1) If a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies, serious assaultive crimes, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies serious assaultive crimes in this state if obtained in this state, and that person commits a subsequent felony serious assaultive crime within this state, the person shall must be punished upon conviction of the subsequent felony serious assaultive crime and sentencing sentenced under section 13 of this chapter as follows:

(a) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.

(b) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for life or for a lesser term.

(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(2) If a person has been convicted of 2 or more serious nonassaultive crimes, whether the convictions occurred in this state or would have been for serious nonassaultive crimes in this state if obtained in this state, and that person commits a subsequent serious nonassaultive crime within this state, the person must be punished upon conviction of the subsequent serious nonassaultive crime and sentenced under section 13 of this chapter as follows:

(a) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for a term less than life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.

(b) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for life or for a lesser term.

(3) If a person has been convicted of 2 or more major controlled substance offenses or an attempt to commit major controlled substance offenses, whether the convictions occurred in this state or would have been for major controlled substance offenses or attempts to commit major controlled substance offenses in this state if obtained in this state, and that person commits a subsequent major controlled substance offense within this state, the person must be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(4) (2) If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or a fraction of a year, and the sentence so imposed shall must be considered an indeterminate sentence. The court shall not fix a maximum sentence that is less than the maximum term for a first conviction.

Sec. 12. (1) If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, serious assaultive crimes, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies serious assaultive crimes in this state if obtained in this state, and that person commits a subsequent felony serious assaultive crime within this state, the person shall must be punished upon conviction of the subsequent felony serious assaultive crime and sentencing sentenced under section 13 of this chapter as follows:

(a) If the subsequent felony is a serious assaultive crime or a conspiracy to commit a serious assaultive crime , and 1 or more of the prior felony convictions are listed prior felonies, is punishable upon a first conviction by imprisonment for a maximum term of more than 5 years but less than life, 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 may be considered a prior felony serious assaultive crime conviction for the purposes of this subsection. only.

(b) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for life or for a lesser term.

(c) If the subsequent felony serious assaultive crime is punishable upon a first conviction by imprisonment for a maximum term that is less than 5 years, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for a maximum term of not more than 15 years.

(d) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(2) If a person has been convicted of 3 or more serious nonassaultive crimes, whether the convictions occurred in this state or would have been for serious nonassaultive crimes in this state if obtained in this state, and that person commits a subsequent serious nonassaultive crime within this state, the person must be punished upon conviction of the subsequent serious nonassaultive crime and sentenced under section 13 of this chapter as follows:

(a) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for a maximum term of more than 5 years but less than life, 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 may be considered a prior serious nonassaultive crime conviction for the purposes of this subsection.

(b) If the subsequent serious nonassaultive crime is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person to imprisonment for life or for a lesser term.

(3) If a person has been convicted of 3 or more major controlled substance offenses or attempts to commit major controlled substance offenses, whether the convictions occurred in this state or would have been for major controlled substance offenses or attempts to commit major controlled substance offenses in this state if obtained in this state, and that person commits a subsequent major controlled substance offense within this state, the person must be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.

(4) (2) If the court imposes a sentence of imprisonment for any term of years under this section, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or a fraction of a year, and the sentence so imposed shall must be considered an indeterminate sentence. The court shall not fix a maximum sentence that is less than the maximum term for a first conviction.

(6) (4) An offender sentenced under this section or section 10 or 11 of this chapter for an offense other than a major controlled substance offense is not eligible for parole until expiration of the following:

(a) For a prisoner other than a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor gives written approval for parole at an earlier date authorized by law.

(b) For a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge.

(7) (5) This section and sections 10 and 11 of this chapter are not in derogation of other provisions of law that permit or direct the imposition of a consecutive sentence for a subsequent felony.

(8) (6) As used in this section, :

(a) "Listed prior felony" means a violation or attempted violation of any of the following:

(i) Section 602a(4) or (5) or 625(4) of the Michigan vehicle code, 1949 PA 300, MCL 257.602a and 257.625.

(ii) Article 7 of the public health code, 1978 PA 368, MCL 333.7101 to 333.7545, that is punishable by imprisonment for more than 4 years.

(iii) Section 72, 82, 83, 84, 85, 86, 87, 88, 89, 91, 110a(2) or (3), 136b(2) or (3), 145n(1) or (2), 157b, 197c, 226, 227, 234a, 234b, 234c, 317, 321, 329, 349, 349a, 350, 397, 411h(2)(b), 411i, 479a(4) or (5), 520b, 520c, 520d, 520g, 529, 529a, or 530 of the Michigan penal code, 1931 PA 328, MCL 750.72, 750.82, 750.83, 750.84, 750.85, 750.86, 750.87, 750.88, 750.89, 750.91, 750.110a, 750.136b, 750.145n, 750.157b, 750.197c, 750.226, 750.227, 750.234a, 750.234b, 750.234c, 750.317, 750.321, 750.329, 750.349, 750.349a, 750.350, 750.397, 750.411h, 750.411i, 750.479a, 750.520b, 750.520c, 750.520d, 750.520g, 750.529, 750.529a, and 750.530.

(iv) A second or subsequent violation or attempted violation of section 227b of the Michigan penal code, 1931 PA 328, MCL 750.227b.

(v) Section 2a of 1968 PA 302, MCL 752.542a.

(b) "Prisoner "prisoner subject to disciplinary time" means that term as defined in section 34 of 1893 PA 118, MCL 800.34.

(c) "Serious crime" means an offense against a person in violation of section 83, 84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d, 520g(1), 529, or 529a of the Michigan penal code, 1931 PA 328, MCL 750.83, 750.84, 750.86, 750.88, 750.89, 750.317, 750.321, 750.349, 750.349a, 750.350, 750.397, 750.520b, 750.520c, 750.520d, 750.520g, 750.529, and 750.529a.

Sec. 13. (1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under section 10, 11, or 12 of this chapter, by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.

(2) A notice of intent to seek an enhanced sentence filed under subsection (1) shall must list the prior conviction or convictions that will or may be relied upon for purposes of sentence enhancement. The notice shall must be filed with the court and served upon the defendant or his or her attorney within the time provided in subsection (1). The notice may be personally served upon the defendant or his or her attorney at the arraignment on the information charging the underlying offense, or may be served in the manner provided by law or court rule for service of written pleadings. The prosecuting attorney shall file a written proof of service with the clerk of the court.

(3) The prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant has been convicted of the underlying offense or a lesser offense, upon his or her plea of guilty or nolo contendere if the defendant pleads guilty or nolo contendere at the arraignment on the information charging the underlying offense, or within the time allowed for filing of the notice under subsection (1).

(4) A defendant who has been given notice that the prosecuting attorney will seek to enhance his or her sentence as provided under section 10, 11, or 12 of this chapter, may challenge whether or not 1 or more of the prior convictions was for a serious assaultive crime, a serious nonassaultive crime, or the accuracy or constitutional validity of 1 or more of the prior convictions listed in the notice by filing a written motion with the court and by serving a copy of the motion upon the prosecuting attorney in accordance with rules of the supreme court.

(5) The existence of the defendant's prior conviction or convictions shall must be determined by the court, without a jury, at sentencing, or at a separate hearing scheduled for that purpose before sentencing. The existence of a prior conviction may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or more of the following:

(a) A copy of a judgment of conviction.

(b) A transcript of a prior trial or a plea-taking or sentencing proceeding.

(d) Information contained in a presentence report.

(e) A statement of the defendant.

(6) The court shall resolve any challenges to whether or not the prior conviction or convictions was for a serious assaultive crime, a serious nonassaultive crime, or the accuracy or constitutional validity of a prior conviction or convictions that have been raised in a motion filed under subsection (4) at sentencing or at a separate hearing scheduled for that purpose before sentencing. The defendant, or his or her attorney, shall must be given an opportunity to deny, explain, or refute any evidence or information pertaining to the defendant's prior conviction or convictions before sentence is imposed, and shall must be permitted to present relevant evidence for that purpose. The defendant shall bear bears the burden of establishing a prima facie showing that an alleged prior conviction is inaccurate or constitutionally invalid, or was not for a serious assaultive crime or a serious nonassaultive crime. If the defendant establishes a prima facie showing that information or evidence concerning an alleged prior conviction is inaccurate or was not for a serious assaultive crime or a serious nonassaultive crime, the prosecuting attorney shall bear bears the burden of proving, by a preponderance of the evidence, that the information or evidence is accurate, or that the conviction was for a serious assaultive crime or a serious nonassaultive crime. If the defendant establishes a prima facie showing that an alleged prior conviction is constitutionally invalid, the prosecuting attorney shall bear bears the burden of proving, by a preponderance of the evidence, that the prior conviction is constitutionally valid.