Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

December 2010
Michigan Criminal Appeals | January 2011 | November 2010

Michigan Supreme Court Bars Insurance Commissioner from Retroactively Changing the Moral Character Standards for Insurance Agents.

30/12/10 10:17 CategoriesCollateral Consequences |Former Offenders
Most professional licenses in Michigan require that the applicant possess good moral character and turpitude. MCL 338.41. Increasingly, however, the Legislature is writing a “no prior record” clause into individual licensing statutes negating much of the impact of the laudable act. Mr. King was licensed as an insurance agent with an automobile related felony conviction. He was originally licensed by the Insurance Commissioner, but the license was later revoked without notice based on an agency decision that a former offender was never entitled to licensure. The Circuit Court reversed stating that nothing in the new laws retroactively revoked the old laws as applied to individuals already licensed. The Court of Appeals affirmed and now a narrowly divided Michigan Supreme Court affirmed. King v State, Supreme Court No. 140684.

Given the departure of Justice Davis from the Court (who was in the majority), a motion for rehearing seems likely. What seems particularly disturbing is the extent that the agencies are willing to go to obviate this important Act. With the U.S. Supreme Court finding in Graham v Florida that people can change, you’d think that agencies would recognize the same.

Mich. Sup. Ct. Refuses to Hear Lorinda Swain Appeal. Actual Innocence May be Irrelevant in Michigan.

27/12/10 11:38 CategoriesNewly Discovered Evidence |6.500 |Innocence

On December 16, 2010, the Michigan Supreme Court refused to hear the Michigan Innocence Project’s appeal in the Lorinda Swain case. People v Swain, Supreme Court No. 141504. Justices Kelly, Cavanaugh, and Hathaway dissented. New evidence had convinced Calhoun Circuit Judge Conrad Sindt (a very conservative judge) to grant her a new trial based on ineffective assistance of counsel and newly discovered evidence. The Michigan Court of Appeals (Hoekstra, Saad, and Murray) reversed the conviction based on a procedural bar. Michigan law prohibits filing more than one 6.500 motion unless there is newly discovered evidence. The Court of Appeals ruled that such newly discovered evidence has to be evidence which the defense could not have located using due diligence. The Court implied that there was no actual innocence exception to this rule and that it is not a violation of the constitution to convict an actually innocent defendant. By a 4-3 vote, the Michigan Supreme Court refused to hear the appeal. Update: The Michigan Innocence Project has since moved for rehearing in the Supreme Court. Since Judge Davis voted with the majority, it is possible that they could pick up the vote of incoming Justice Mary Beth Kelly (not to be confused with co-Justice Marilyn Kelly).

Michigan Supreme Court Rules that OV 19 Does Not Contain a Transactional Limitation. A Defendant Can be Scored for this Variable for Conduct Occurring Many Weeks After the Underlying Offense.

27/12/10 10:02 CategoriesSentencing Guidelines
In People v Smith, Supreme Court No. 140371, the Court limited its 2009 ruling People v McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009), concerning the scoring of sentencing guideline variables under the Michigan Sentencing Guidelines. OV 19 (MCL 777.49) permits the Court to score upto 25 points for attempting to interfere with the criminal justice system. In Smith, the Court (5-2) said that there was not a transaction limitation in this variable. The fact that the obstructive acts takes place weeks after the scoring does not bar the Court from scoring this variable. The Court reversed the Court of Appeals ruling to the contrary.
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