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Criminal Appellate & Post-Conviction Services

“All I Want is a Time Cut:” Strategies for Getting a Sentence Reduction in Michigan

One of the most frequent calls I get is from family members who think they are sounding reasonable and saying “all I want is a time cut.” I understand that one of the things the family is trying to say is that they not contesting guilt. The problem is that Michigan has limited options for sentencing reductions.

  1. A. The Problem

Under Michigan law, once a valid sentence is entered, the trial judge loses all discretion to resentence the Defendant. The Michigan Supreme Court laid down this basic principle in a number of cases – the most widely cited of which is In re Dana Jenkins, 438 Mich 364, 475 NW2d 279 (1991). There, the Defendant and the co-defendant were given inconsistent sentences for the same offense. The Detroit trial judge ultimately granted resentencing and reduced Mr. Jenkin’s sentence. The prosecutor brought a suit for superintending control in the Court of Appeals.

The Court of Appeals agreed that the Court lost all jurisdiction to resentence the defendant. Because the original sentence was valid, the trial court could not resentence Mr. Jenkins. The Michigan Supreme Court upheld this ruling. The Court identified a number of legal consideration that underlied the rule:

  • • Permitting such a rule would infringe on the Governor’s commutation powers;
  • • Permitting a judge to change sentences at a later date would erode judicial accountability. It will reduce the thought and consideration a trial judge would give originally on the theory that they could always fix the problem later;
  • • A successor judge without the personal experience with the case is more likely to make a misstake;
  • • A defendant would have no disincentive to file repetitive motions until he ultimately won;
  • • The Supreme Court considered a rule permitting such motions (modeled off the former Fed. R. Crim P. 35) and rejected the same in 1982;
  • • The Defendant may challenge a sentence for being excessive at the time it was imposed under People v Milbourn or based on the fact that the Guidelines were misscored. This provides adequate appellate protection;

While Michigan’s
McFarlin ruling requires sentences to be individualized, the Court held that the duty to individualize a sentence does not require inter-defendant proportionality, (e.g. the fact that two people committing similar offenses don’t necessarily get similar amounts of time) is not sufficient grounds to grant resentencing.

Justice Cavanaugh’s dissent in
In re Dana Jenkins is instructive because it shows that our approach to the law of sentencing appeals has not been static and should be permitted to evolve. In 1983 with the Coles ruling, we opened the door to sentencing appeals. Before Coles you could not appeal a sentence. The Court defending the old practice made arguments similar to the ones used by the Jenkins majority to deny resentencing. Allow appellate review of sentencing would be an infringement on the “executive function,” would “open the flood gates,” etc. The sky didn’t fall when Coles permitted sentencing reviews.

People v Milbourn, the Supreme Court said that a sentence could be reviewed to see if it was disproportionate to the offender and the offense. Milbourn represented a liberalization of the sentence rules. Additionally (but not stated by Justice Cavanaugh), the executive branch was stripped of its authority to correct unjust sentences. Before 1978, the Department of Corrections could grant a a “special parole” to individuals before their earliest release date on a showing of exceptional circumstances. Prior to 2000, the Director had the authority to place deserving inmates on “extended furlough” all of these options were removed from the Department’s discretion. By definition, there needs to be some movement in this area.

A good friend of mine pushed the Court of Appeals to extend that envelope in
People v Wybrecht. In that case, the Defendant was severely cognitively impaired.. His original attorney lightly touched on the subject. Based on his poor advocacy, the trial court did not appreciate the problem and the prosecutor easily made the defense look like an exaggerator.

MCR 2.119 permitted an attorney to file for rehearing of a ruling within fourteen days. (It has since been extended to twenty-one days). Mr. Wybrecht’s attorney moved heaven and earth and assembled an independent pscychological evaluation together with volumes historical documents showing that the problems were all too real in the case. The trial judge resentenced the Defendant to a non-incarcerative sentence. The prosecution appealed.

The Court of Appeals had the ability to
Wybrecht to scale back on Jenkins but chose not to. The Court could have said that where the judge was not provided with the relevant facts, the ensuing sentence was “invalid.”

The Court could also have said that the fourteen day rehearing window would not open the flood gates. A number of very valid considerations could have made this so. First, the fourteen day windows would have created a natural end to the litigation. The strong presumptions against rehearing in Michigan law would have stopped these motions from being routinely filed. A Defendant normally has to “show a palpable error,” and facts/law that were not originally presented. Further, motions for rehearing are normally decided without oral arguments and courts have boilerplate orders saying “rehearing is denied for failing to show palapable error.” Rehearing, however, would have given both sides the chance to take one last stab at insuring all the arguments are presented.

Just as importantly, while the
Dana Jenkins Court portrays sentencing as some sort of Solemonic event, this is not how it happens in big city courts. Back then, counsel saw presentencing reports on the day of sentencing with little time to react. Now they can get it (if they are aggressive) two days before sentencing. This is not sufficient time to adequately prepare.

Courts are under incentives to move the Defendants off the county budget (if they are being detained without bond) to the state budget (e.g. Jackson Prison) meaning that that adjournments are hard to get.

If rehearing or reconsideration was granted within the short time involved, it is unlikely that there would be a successor judge, a loss in institutional memory, or any of the other concerns. In short, the
Wybrecht case presented the perfect opportunity to open a small crack in this wall. The Court of Appeals didn’t see things that way. In my opinion, the Court missed a valuable opportunity to correct Michigan law at that point. In the years that followed, Wybrecht has been uncited in an unqualified fashion. While a logical case can be made why Wybrecht and Jenkins should be overruled, it seems unlikely that point that the Court of Appeals will do so.

Available Solutions

In our present legal system, there are several ways that a sentence can be challenged. I will attempt to outline a non-exhaustive list of approaches and will develop this list over time:

  1. A. A sentence with a probation component can be modified at any time. Under Michigan law, probation can be modified at any time. If the Defendant has a jail sentence which is imposed as part of his/her probation. Probation can be modified at any time. MCL 771.2; People v Sattler, 20 Mich App 665; 174 NW2d 605 (1970);
  2. B. Incorrect scoring of guidelines. If the Defendant’s guidelines were incorrectly scored, he/she would be entitled to resentencing if they effected the guideline range. People v Francisco, 474 Mich 82; 711 NW2d 44 (2006);
    1. a. Note: If more than six months has passed since the date of sentence, you may be required to demonstrate “good cause” and “actual prejudice” for failing to raise the issue in the original appeal;
  3. C. Excessive sentence. In some situations, it may be possible to argue that a sentence is excessive under the Milbourn ruling. When the sentence is within the scope of the guidelines, this argument is difficult to prevail on;

  1. D. Improper grounds for departure. If the judge exceeds the sentencing guidelines, it may be possible to argue for resentencing based if there are not “substantial and compelling” reasons for the departure. Departures should only take place in “exceptional cases” and can only be based on “substantial and compelling” factors which are capable of being objectively verified. People v Babcock, 666 NW2d 231 (Mich 2003).
  2. E. Penalization of the Defendant’s exercising a constitutional right. In People v Eargood, 383 Mich 82, 85 (1970), the Supreme Court said that a Defendant cannot receive more time for demanding a jury trial.

    A more complicated variant of this problem takes place where the Court sentences the Defendant for not admitting guilt. A Court can reward a defendant for showing remorse, but cannot penalize him for asserting his innocence or remaining silent. This creates a complicated area of law where the Court’s precise language is critical. Unfortunately, most judges have generally figured out the “magic words;”

  3. F. Local sentencing policy. A judge cannot sentence a Defendant to a local sentencing policy. People v Snow, 386 Mich 586, 194 NW2dd 314 (1972). A good example would be a judge who requires all drunk drivers to do ten days in jail;

  1. G. Ineffective assistance of counsel. In some cases it may be possible to argue that counsel was ineffective in failing to present mitigating evidence. This is a complicated area which is not easily developed in a short paper. Each case has to be discussed on its own merits.