Bill Text: MI HB5928 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Criminal procedure; sentencing; criminal justice policy commission; create, and make other revisions regarding sentencing. Amends secs. 1a, 1l, 34 & 35, ch. IX of 1927 PA 175 (MCL 769.1a et seq.) & adds secs. 32a & 33a to ch. IX. TIE BAR WITH: HB 5930'14
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-12-31 - Assigned Pa 465'14 With Immediate Effect 2014 Addenda [HB5928 Detail]
Download: Michigan-2013-HB5928-Engrossed.html
HB-5928, As Passed House, December 4, 2014
SUBSTITUTE FOR
HOUSE BILL NO. 5928
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 1a, 1l, 11, 12, 13, and 34 of chapter IX and
section 21 of chapter XVII (MCL 769.1a, 769.1l, 769.11, 769.12,
769.13, 769.34, and 777.21), section 1a of chapter IX as amended by
2009 PA 27, section 1l of chapter IX as added by 2005 PA 325,
sections 11 and 13 of chapter IX and section 21 of chapter XVII as
amended by 2006 PA 655, section 12 of chapter IX as amended by 2012
PA 319, and section 34 of chapter IX as amended by 2002 PA 666, and
by adding sections 32a and 33a to chapter IX; and to repeal acts
and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec. 1a. (1) As used in this section:
(a) "Crime victim services commission" means that term as
described in section 2 of 1976 PA 223, MCL 18.352.
(b) "Victim" means an individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the commission of a felony, misdemeanor, or ordinance violation.
For purposes of subsections (2), (3), (6), (8), (9), and (13),
victim includes a sole proprietorship, partnership, corporation,
association, governmental entity, or any other legal entity that
suffers direct physical or financial harm as a result of a felony,
misdemeanor, or ordinance violation.
(2) Except as provided in subsection (8), when sentencing a
defendant convicted of a felony, misdemeanor, or ordinance
violation, the court shall order, in addition to or in lieu of any
other penalty authorized by law or in addition to any other penalty
required by law, that the defendant make full restitution to any
victim of the defendant's course of conduct that gives rise to the
conviction or to the victim's estate.
(3) If a felony, misdemeanor, or ordinance violation results
in damage to or loss or destruction of property of a victim of the
felony, misdemeanor, or ordinance violation or results in the
seizure or impoundment of property of a victim of the felony,
misdemeanor, or ordinance violation, the order of restitution may
require that the defendant do 1 or more of the following, as
applicable:
(a) Return the property to the owner of the property or to a
person designated by the owner.
(b) If return of the property under subdivision (a) is
impossible, impractical, or inadequate, pay an amount equal to the
greater of subparagraph (i) or (ii), less the value, determined as of
the date the property is returned, of that property or any part of
the property that is returned:
(i) The fair market value of the property on the date of the
damage, loss, or destruction. However, if the fair market value of
the property cannot be determined or is impractical to ascertain,
then the replacement value of the property shall be utilized in
lieu of the fair market value.
(ii) The fair market value of the property on the date of
sentencing. However, if the fair market value of the property
cannot be determined or is impractical to ascertain, then the
replacement value of the property shall be utilized in lieu of the
fair market value.
(c) Pay the cost of the seizure or impoundment, or both.
(4) If a felony, misdemeanor, or ordinance violation results
in physical or psychological injury to a victim, the order of
restitution may require that the defendant do 1 or more of the
following, as applicable:
(a) Pay an amount equal to the cost of actual medical and
related professional services and devices relating to physical and
psychological care.
(b) Pay an amount equal to the cost of actual physical and
occupational therapy and rehabilitation.
(c) Reimburse the victim or the victim's estate for after-tax
income loss suffered by the victim as a result of the felony,
misdemeanor, or ordinance violation.
(d) Pay an amount equal to the cost of psychological and
medical treatment for members of the victim's family that has been
incurred as a result of the felony, misdemeanor, or ordinance
violation.
(e) Pay an amount equal to the cost of actual homemaking and
child care expenses incurred as a result of the felony,
misdemeanor, or ordinance violation.
(5) If a felony, misdemeanor, or ordinance violation resulting
in bodily injury also results in the death of a victim, the order
of restitution may require that the defendant pay an amount equal
to the cost of actual funeral and related services.
(6) If the victim or the victim's estate consents, the order
of restitution may require that the defendant make restitution in
services in lieu of money.
(7) If the victim is deceased, the court shall order that the
restitution be made to the victim's estate.
(8) The court shall order restitution to the crime victim
services commission or to any individuals, partnerships,
corporations, associations, governmental entities, or other legal
entities that have compensated the victim or the victim's estate
for a loss incurred by the victim to the extent of the compensation
paid for that loss. The court shall also order restitution for the
costs of services provided to persons or entities that have
provided services to the victim as a result of the felony,
misdemeanor, or ordinance violation. Services that are subject to
restitution under this subsection include, but are not limited to,
shelter, food, clothing, and transportation. However, an order of
restitution shall require that all restitution to a victim or a
victim's estate under the order be made before any restitution to
any other person or entity under that order is made. The court
shall not order restitution to be paid to a victim or victim's
estate if the victim or victim's estate has received or is to
receive compensation for that loss, and the court shall state on
the record with specificity the reasons for its action. If an
entity entitled to restitution under this subsection for
compensating the victim or the victim's estate cannot or refuses to
be reimbursed for that compensation, the restitution paid for that
entity shall be deposited by the state treasurer in the crime
victim's rights fund created under section 4 of 1989 PA 196, MCL
780.904, or its successor fund.
(9) Any amount paid to a victim or a victim's estate under an
order of restitution shall be set off against any amount later
recovered as compensatory damages by the victim or the victim's
estate in any federal or state civil proceeding and shall reduce
the amount payable to a victim or a victim's estate by an award
from the crime victim services commission made after an order of
restitution under this section.
(10) If not otherwise provided by the court under this
subsection, restitution shall be made immediately. However, the
court may require that the defendant make restitution under this
section within a specified period or in specified installments.
(11) If the defendant is placed on probation or paroled or the
court imposes a conditional sentence under section 3 of this
chapter, any restitution ordered under this section shall be a
condition of that probation, parole, or sentence. The court may
revoke probation or impose imprisonment under the conditional
sentence and the parole board may revoke parole if the defendant
fails to comply with the order and if the defendant has not made a
good-faith effort to comply with the order. In determining whether
to revoke probation or parole or impose imprisonment, the court or
parole board shall consider the defendant's employment status,
earning ability, and financial resources, the willfulness of the
defendant's failure to pay, and any other special circumstances
that may have a bearing on the defendant's ability to pay.
(12) A defendant who is required to pay restitution and who is
not in willful default of the payment of the restitution may at any
time petition the sentencing judge or his or her successor to
modify the method of payment. If the court determines that payment
under the order will impose a manifest hardship on the defendant or
his or her immediate family, the court may modify the method of
payment.
(13) An order of restitution entered under this section
remains effective until it is satisfied in full. An order of
restitution is a judgment and lien against all property of the
defendant for the amount specified in the order of restitution. The
lien may be recorded as provided by law. An order of restitution
may be enforced by the prosecuting attorney, a victim, a victim's
estate, or any other person or entity named in the order to receive
the restitution in the same manner as a judgment in a civil action
or a lien.
(14) Notwithstanding any other provision of this section, a
defendant shall not be imprisoned, jailed, or incarcerated for a
violation of probation or parole or otherwise for failure to pay
restitution as ordered under this section unless the court or
parole board determines that the defendant has the resources to pay
the ordered restitution and has not made a good-faith effort to do
so.
(15) In each case in which payment of restitution is ordered
as a condition of probation, the probation officer assigned to the
case shall review the case not less than twice yearly to ensure
that restitution is being paid as ordered. The final review shall
be conducted not less than 60 days before the probationary period
expires. If the probation officer determines that restitution is
not being paid as ordered, the probation officer shall file a
written report of the violation with the court on a form prescribed
by the state court administrative office. The report shall include
a statement of the amount of the arrearage and any reasons for the
arrearage known by the probation officer. The probation officer
shall immediately provide a copy of the report to the prosecuting
attorney. If a motion is filed or other proceedings are initiated
to enforce payment of restitution and the court determines that
restitution is not being paid or has not been paid as ordered by
the court, the court shall promptly take action necessary to compel
compliance.
(16) If a defendant who is ordered to pay restitution under
this section is remanded to the jurisdiction of the department of
corrections, the court shall provide a copy of the order of
restitution to the department of corrections when the defendant is
ordered remanded to the department's jurisdiction.
(17) It is the intent of the legislature that the Michigan
supreme court implement measurement of restitution assessment and
collection as a court performance measure for circuit courts and
district courts.
Sec. 1l. If a prisoner under the jurisdiction of the department
of corrections has been ordered to pay any sum of money as
described in section 1k and the department of corrections receives
an order from the court on a form prescribed by the state court
administrative office, the department of corrections shall deduct
50% of the funds received by the prisoner in a month over $50.00
and promptly forward a payment to the court as provided in the
order when the amount exceeds $100.00, or the entire amount if the
prisoner is paroled, is transferred to community programs, or is
discharged on the maximum sentence. The department of corrections
shall give an order of restitution under section 20h of the
corrections code of 1953, 1953 PA 232, MCL 791.220h, or the William
Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751
to 780.834, priority over an order received under this section. The
department of corrections shall track and report prisoner
restitution collection as a performance measure.
Sec. 11. (1) If a person has been convicted of any combination
of 2 or more felonies or attempts to commit felonies, whether the
convictions occurred in this state or would have been for felonies
or attempts to commit felonies in this state if obtained in this
state, and that person commits a subsequent felony within this
state, the person shall be punished upon conviction of the
subsequent felony and sentencing under section 13 of this chapter
as follows:
(a) If the subsequent felony 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 1-1/2
times the longest term
prescribed by law for a first conviction of that offense or for a
lesser term.
(b) If the subsequent felony 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.
(d) Not more than 1 conviction arising out of the same
transaction shall be considered a prior felony conviction under
this section.
(2)
If the court pursuant to this section 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 be considered an
indeterminate sentence. The court shall not fix a maximum sentence
that is less than the maximum term for a first conviction.
(3) A conviction shall 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.
Sec. 12. (1) If a person has been convicted of any combination
of 3 or more felonies or attempts to commit felonies, whether the
convictions occurred in this state or would have been for felonies
or attempts to commit felonies in this state if obtained in this
state, and that person commits a subsequent felony within this
state, the person shall be punished upon conviction of the
subsequent felony and sentencing under section 13 of this chapter
as follows:
(a) If the subsequent felony is a serious crime or a
conspiracy to commit a serious crime, and 1 or more of the prior
felony convictions are listed prior felonies, 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 be
considered
a prior felony conviction for the purposes of this
subsection
only.
(b) If the subsequent felony is punishable upon a first
conviction
by imprisonment for a maximum term of 5 years or more or
for
life, 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 life 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.
(c) If the subsequent felony is punishable upon a first
conviction
by imprisonment for a maximum term that is less than 5
years,
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 of not more than 15 years.life or a
lesser term.
(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.
(e) Not more than 1 conviction arising out of the same
transaction shall be considered a prior felony conviction under
this section.
(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 be considered an indeterminate sentence. The court
shall not fix a maximum sentence that is less than the maximum term
for a first conviction.
(3) A conviction shall 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.
(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.
(5)
This section and sections 10 and section 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.
(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 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 35 days after the
defendant's arraignment on the information charging the underlying
offense
or, if arraignment is waived, within 21 35 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 list the prior conviction or convictions
that will or may be relied upon for purposes of sentence
enhancement. The notice shall 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 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 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.
(c) A copy of a court register of actions.
(d) Information contained in a presentence report.
(e) A statement of the defendant.
(6) The court shall resolve any challenges to 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 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 be permitted to
present relevant evidence for that purpose. The defendant shall
bear the burden of establishing a prima facie showing that an
alleged prior conviction is inaccurate or constitutionally invalid.
If the defendant establishes a prima facie showing that information
or evidence concerning an alleged prior conviction is inaccurate,
the prosecuting attorney shall bear the burden of proving, by a
preponderance of the evidence, that the information or evidence is
accurate. If the defendant establishes a prima facie showing that
an alleged prior conviction is constitutionally invalid, the
prosecuting attorney shall bear the burden of proving, by a
preponderance of the evidence, that the prior conviction is
constitutionally valid.
Sec. 32a. (1) A criminal justice policy commission is created
in the legislative council. Before March 1, 2015, the governor
shall appoint the commission members described in subdivisions (d)
to (n). The commission consists of all of the following members:
(a) Two individuals who are members of the senate submitted by
the senate majority leader, representing each caucus.
(b) Two individuals who are members of the house of
representatives submitted by the speaker of the house of
representatives, representing each caucus.
(c) The attorney general, or his or her designee, representing
crime victims.
(d) One individual who is a circuit court judge, appointed
from a list of 3 names submitted by the Michigan judges
association.
(e) One individual who is a district court judge, appointed
from a list of 3 names submitted by the Michigan district judges
association.
(f) One individual who represents the prosecuting attorneys of
this state, appointed from a list of 3 names submitted by the
prosecuting attorneys association of Michigan.
(g) One individual who represents criminal defense attorneys,
appointed from a list of 3 names submitted by the criminal defense
attorneys of Michigan.
(h) One individual appointed from a list of 3 names submitted
by the Michigan sheriff's association.
(i) One individual appointed from a list of 3 names submitted
by the director of the Michigan department of corrections.
(j) One individual who represents advocates of alternatives to
incarceration.
(k) One individual who is a mental health expert.
(l) One individual appointed from a list of 3 names submitted
by the Michigan association of counties.
(m) One individual who represents community corrections
agencies.
(n) One individual who represents the general public.
(2) The governor shall designate the individual representing
the general public as the chairperson of the justice policy
commission.
(3) Except as otherwise provided in this subsection, the
commission members shall be appointed for terms of 4 years. Of the
members first appointed under subsection (1)(d) to (n), 4 members
shall serve for 2 years, 4 members shall serve for 3 years, and 3
members shall serve for 4 years. The members of the commission
appointed under subsection (1)(a) and (b) shall be appointed for
terms of 2 years.
(4) A vacancy on the commission caused by the expiration of a
term or a resignation or death shall be filled in the same manner
as the original appointment. A member appointed to fill a vacancy
caused by a resignation or death shall be appointed for the balance
of the unexpired term.
(5) A commission member shall not receive a salary for being a
commission member but shall be reimbursed for his or her
reasonable, actual, and necessary expenses incurred in the
performance of his or her duties as a commission member.
(6) The commission may establish subcommittees that may
consist of individuals who are not members of the commission,
including, but not limited to, experts in matters of interest to
the commission.
(7) The commission's business shall be conducted at public
meetings held in compliance with the open meetings act, 1976 PA
267, MCL 15.261 to 15.275.
(8) A quorum consists of a majority of the members of the
sentencing commission. All commission business shall be conducted
by not less than a quorum.
(9) A writing prepared, owned, used, in the possession of, or
retained by the commission in the performance of an official
function shall be made available to the public in compliance with
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(10) The legislative council shall provide the commission with
suitable office space, staff, and necessary equipment.
Sec. 33a. (1) The criminal justice policy commission shall do
all of the following:
(a) Collect, prepare, analyze, and disseminate information
regarding state and local sentencing and release policies and
practices for felonies and the use of prisons and jails.
(b) Collect and analyze information concerning how misdemeanor
sentences and the detention of defendants pending trial affect
local jails.
(c) Conduct ongoing research regarding the effectiveness of
the sentencing guidelines in achieving the purposes set forth in
subdivision (f).
(d) In cooperation with the department of corrections,
collect, analyze, and compile data and make projections regarding
the populations and capacities of state and local correctional
facilities, the impact of the sentencing guidelines and other laws,
rules, and policies on those populations and capacities, and the
effectiveness of efforts to reduce recidivism. Measurement of
recidivism shall include, as applicable, analysis of all of the
following:
(i) Reoffense rates, rearrest rates, resentence rates, and
return to prison rates.
(ii) One-, 2-, and 3-year intervals after exiting prison or
jail and after entering probation.
(iii) The statewide level, and by locality and discrete program,
to the extent practicable.
(e) In cooperation with the state court administrator,
collect, analyze, and compile data regarding the effect of
sentencing guidelines on the caseload, docket flow, and case
backlog of the trial and appellate courts of this state.
(f) Develop modifications to the sentencing guidelines. Any
modifications to the sentencing guidelines shall accomplish all of
the following:
(i) Provide for the protection of the public.
(ii) Consider offenses involving violence against a person or
serious and substantial pecuniary loss as more severe than other
offenses.
(iii) Be proportionate to the seriousness of the offense and the
offender's prior criminal record.
(iv) Reduce sentencing disparities based on factors other than
offense characteristics and offender characteristics and ensure
that offenders with similar offense and offender characteristics
receive substantially similar sentences.
(v) Specify the circumstances under which a term of
imprisonment is proper and the circumstances under which
intermediate sanctions are proper.
(vi) Establish sentence ranges for imprisonment that are within
the minimum and maximum sentences allowed by law for the offenses
to which the ranges apply.
(vii) Maintain separate sentence ranges for convictions under
the habitual offender provisions in sections 11 and 12 of this
chapter, which may include as an aggravating factor, among other
relevant considerations, that the accused has engaged in a pattern
of proven or admitted criminal behavior.
(viii) Establish sentence ranges that the commission considers
appropriate.
(ix) Recognize the availability of beds in the local
corrections system and that the local corrections system is an
equal partner in corrections policy, and preserve its funding
mechanisms.
(g) Consider the suitability and impact of offense variable
scoring with regard to physical and psychological injury to victims
and victims' families.
(2) In developing modifications to the sentencing guidelines,
the commission shall submit to the legislature a prison and jail
impact report relating to any modifications to the sentencing
guidelines. The report shall include the projected impact on total
capacity of state and local correctional facilities.
(3) Modifications to sentencing guidelines shall include
recommended intermediate sanctions for each case in which the upper
limit of the recommended minimum sentence range is 18 months or
less.
(4) The commission may recommend modifications to any law,
administrative rule, or policy that affects sentencing or the use
and length of incarceration. The recommendations shall reflect all
of the following policies:
(a) To render sentences in all cases within a range of
severity proportionate to the gravity of offenses, the harms done
to crime victims, and the blameworthiness of offenders.
(b) When reasonably feasible, to achieve offender
rehabilitation, general deterrence, incapacitation of dangerous
offenders, restoration of crime victims and communities, and
reintegration of offenders into the law-abiding community.
(c) To render sentences no more severe than necessary to
achieve the applicable purposes in subdivisions (a) and (b).
(d) To preserve judicial discretion to individualize sentences
within a framework of law.
(e) To produce sentences that are uniform in their reasoned
pursuit of the purposes in subsection (1).
(f) To eliminate inequities in sentencing and length of
incarceration across population groups.
(g) To encourage the use of intermediate sanctions.
(h) To ensure that adequate resources are available for
carrying out sentences imposed and that rational priorities are
established for the use of those resources.
(i) To promote research on sentencing policy and practices,
including assessments of the effectiveness of criminal sanctions as
measured against their purposes.
(j) To increase the transparency of the sentencing and
corrections system, its accountability to the public, and the
legitimacy of its operations.
(5) The commission shall submit any recommended modifications
to the sentencing guidelines or to other laws, administrative
rules, or policies to the senate majority leader, the speaker of
the house of representatives, and the governor.
Sec. 34. (1) The sentencing guidelines promulgated by order of
the Michigan supreme court do not apply to felonies enumerated in
part 2 of chapter XVII committed on or after January 1, 1999.
(2) Except as otherwise provided in this subsection or for a
departure from the appropriate minimum sentence range provided for
under subsection (3), the minimum sentence imposed by a court of
this state for a felony enumerated in part 2 of chapter XVII
committed on or after January 1, 1999 shall be within the
appropriate sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed. Both of
the following apply to minimum sentences under this subsection:
(a) If a statute mandates a minimum sentence for an individual
sentenced to the jurisdiction of the department of corrections, the
court shall impose sentence in accordance with that statute.
Imposing a mandatory minimum sentence is not a departure under this
section. If a statute mandates a minimum sentence for an individual
sentenced to the jurisdiction of the department of corrections and
the statute authorizes the sentencing judge to depart from that
minimum sentence, imposing a sentence that exceeds the recommended
sentence range but is less than the mandatory minimum sentence is
not a departure under this section. If the Michigan vehicle code,
1949 PA 300, MCL 257.1 to 257.923, mandates a minimum sentence for
an individual sentenced to the jurisdiction of the department of
corrections and the Michigan vehicle code, 1949 PA 300, MCL 257.1
to 257.923, authorizes the sentencing judge to impose a sentence
that is less than that minimum sentence, imposing a sentence that
exceeds the recommended sentence range but is less than the
mandatory minimum sentence is not a departure under this section.
(b) The court shall not impose a minimum sentence, including a
departure, that exceeds 2/3 of the statutory maximum sentence.
(3) A court may depart from the appropriate sentence range
established under the sentencing guidelines set forth in chapter
XVII if the court has a substantial and compelling reason for that
departure and states on the record the reasons for departure. All
of the following apply to a departure:
(a) The court 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.
(b) The court 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.
(4) Intermediate sanctions shall be imposed under this chapter
as follows:
(a) If the upper limit of the recommended minimum sentence
range for a defendant determined under the sentencing guidelines
set forth in chapter XVII is 18 months or less, the court shall
impose an intermediate sanction unless the court states on the
record a substantial and compelling reason to sentence the
individual to the jurisdiction of the department of corrections. An
intermediate sanction may include a jail term that does not exceed
the upper limit of the recommended minimum sentence range or 12
months, whichever is less.
(b) If an attempt to commit a felony designated in offense
class H in part 2 of chapter XVII is punishable by imprisonment for
more than 1 year, the court shall impose an intermediate sanction
upon conviction of that offense absent a departure.
(c) If the upper limit of the recommended minimum sentence
exceeds 18 months and the lower limit of the recommended minimum
sentence is 12 months or less, the court shall sentence the
offender as follows absent a departure:
(i) To imprisonment with a minimum term within that range.
(ii) To an intermediate sanction that may include a term of
imprisonment of not more than 12 months.
(5) If a crime has a mandatory determinant penalty or a
mandatory penalty of life imprisonment, the court shall impose that
penalty. This section does not apply to sentencing for that crime.
(6) As part of the sentence, the court may also order the
defendant to pay any combination of a fine, allowable costs, or
applicable assessments. The court shall order payment of
restitution as provided by law.
(7) If the trial court imposes on a defendant a minimum
sentence that is longer or more severe than the appropriate
sentence range, as part of the court's advice of the defendant's
rights concerning appeal, the court shall advise the defendant
orally 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.
(8) All of the following shall be part of the record filed for
an appeal of a sentence under this section:
(a) An entire record of the sentencing proceedings.
(b) The presentence investigation report. Any portion of the
presentence investigation report exempt from disclosure by law
shall not be a public record.
(c) Any other reports or documents the sentencing court used
in imposing sentence.
(9) An appeal of a sentence under this section does not stay
execution of the sentence.
(10) If a minimum sentence is within the appropriate
guidelines sentence range, the court of appeals shall affirm that
sentence and shall not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant's sentence. A party shall not
raise on appeal an issue challenging the scoring of the sentencing
guidelines or challenging the accuracy of information relied upon
in determining a sentence that is within the appropriate guidelines
sentence range unless the party has raised the issue at sentencing,
in a proper motion for resentencing, or in a proper motion to
remand filed in the court of appeals.
(11) If, upon a review of the record, the court of appeals
finds the trial court did not have a substantial and compelling
reason for departing from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or another trial
court judge for resentencing under this chapter.
(12) Time served on the sentence appealed under this section
is considered time served on any sentence imposed after remand.
CHAPTER XVII
Sec. 21. (1) Except as otherwise provided in this section, for
an offense enumerated in part 2 of this chapter, determine the
recommended minimum sentence range as follows:
(a) Find the offense category for the offense from part 2 of
this chapter. From section 22 of this chapter, determine the
offense variables to be scored for that offense category and score
only those offense variables for the offender as provided in part 4
of this chapter. Total those points to determine the offender's
offense variable level.
(b) Score all prior record variables for the offender as
provided in part 5 of this chapter. Total those points to determine
the offender's prior record variable level.
(c) Find the offense class for the offense from part 2 of this
chapter. Using the sentencing grid for that offense class in part 6
of this chapter, determine the recommended minimum sentence range
from the intersection of the offender's offense variable level and
prior record variable level. The recommended minimum sentence
within a sentencing grid is shown as a range of months or life.
(2) If the defendant was convicted of multiple offenses,
subject to section 14 of chapter XI, score each offense as provided
in this part.
(3)
If the offender is being sentenced under section 10, 11 ,
or 12 of chapter IX, determine the offense category, offense class,
offense variable level, and prior record variable level based on
the underlying offense. To determine the recommended minimum
sentence range, increase the upper limit of the recommended minimum
sentence range determined under part 6 for the underlying offense
as follows:
(a)
If the offender is being sentenced for a second felony,
25%.
(a) (b)
If the offender is being sentenced
for a third felony,
50%.
(b) (c)
If the offender is being sentenced
for a fourth or
subsequent felony, 100%.
(4) If the offender is being sentenced for a violation
described in section 18 of this chapter, both of the following
apply:
(a) Determine the offense variable level by scoring the
offense variables for the underlying offense and any additional
offense variables for the offense category indicated in section 18
of this chapter.
(b) Determine the offense class based on the underlying
offense. If there are multiple underlying felony offenses, the
offense class is the same as that of the underlying felony offense
with the highest crime class. If there are multiple underlying
offenses but only 1 is a felony, the offense class is the same as
that of the underlying felony offense. If no underlying offense is
a felony, the offense class is G.
(5) If the offender is being sentenced for an attempted felony
described in section 19 of this chapter, determine the offense
variable level and prior record variable level based on the
underlying attempted offense.
Enacting section 1. Section 10 of chapter IX of the code of
criminal procedure, 1927 PA 175, MCL 769.10, is repealed.
Enacting section 2. This amendatory act does not take effect
unless House Bill No. 5930 of the 97th Legislature is enacted into
law.
