This blog gives general instructions as to how to compute sentencing guidelines for felony cases (and high court misdemeanors with a maximum punishment of over 1 year) in Michigan. Sentence guidelines do not apply to most misdemeanor offenses in Michigan. Be careful in calculating the guidelines - Michigan case law, statutory law, the facts of your case, and the discretion of the sentencing Judge influence how particular variables are computed. You should always seek the advice of a licensed Michigan attorney who specializes in criminal law and who is familiar with the facts and circumstances of your case whenever you have an issue concerning the scoring and application of sentence guidelines in Michigan Courts.
There are also seperate sentencing guidelines that apply to Federal Prosecutions that are not applicable here. DO NOT refer to this blog for Federal Cases.
Michigan Sentencing Guidelines are available online at http/:courts.Michigan.gov/mji/resources/sentencing-guidelines/sg.htm.
This website also has instructions and definitions that will help you with the computation process. If you cannot link to this address, simply go to Google and use Michigan Sentencing Guidelines as your search term to find the Michigan Sentencing Guidelines online.
Step 1: In the Alphabetical List of Felonies, find the name of the charge in question. Write down the Group, Class, and Statutory Max assigned to that felony. In Michigan, it is typically most important to calculate the guidelines for the highest class offense (the sentence Grids are organized from highest to lowest). Most offenses (with some exceptions) run concurrent with each other and not consecutive.
Step 2: Find and open the Group that applies to the felony in question (Crimes Against Person, Crimes Against Property, Crimes Involving Controlled Substance, Crimes Against Public Order, Crimes Against Public Safety, Crimes Against Public Trust)
Step 3: Start with the PRVs (Prior Record Variables). Read through each variable, including the instructions on the side. Write down points for each variable as you go along. After you have gone through all the PRVs, write down the total number of points that you calculated. Remember, some variables may be debatable depending on the prior history of the Defendant, and on the facts and circumstances of the case.
Step 4: Continue with the OVs (Offense Variables). Read through each variable, including the instructions on the side. Write down points for each variable as you go along. After you have gone through all the OVs, write down the total number of points that you calculated. Remember, some variables may be debatable depending on the prior history of the Defendant, and on the facts and circumstances of the case.
Step 5: Find the Grid that applies. Open the Grids. Scroll down to the letter that matches the letter under the Class that you wrote down earlied under the Alphabetical List of Felones.
Step 6: Apply the total number of points under the PRV Level (which runs horizontally across the page). Write down the letter that corresponds to the total number of points that you previously calculated under the PRVs.
Step 7: Apply the total number of points under the OV Level (which runs vertically down the page). Write down the Roman numeral that corresponds to the total number of points that you previously calculated under the OVs.
Step 8: See where the letter and Roman numeral intersect on the grid in a particular box. Where they meet up is the sentence guideline range. The box will have a large number with 4 different numbers directly to the right of the large number. The largest number will be the bottom of the guideline range. The small number that applies will be the top of the guideline range. Which of the small numbers in the box to apply depends upon if a Habitual Offender Notice was filed on the case. The very top small number is for no Habitual Offender Notice, the following small numbers are for Habitual Offenders 2nd, 3rd, and 4th in that order going downward.
The numbers correspond to the possible number of months that a Judge can sentence a Defendant to. For example, if the guideline range is 0 (large number) to 6 (small number), the Judge can sentence the Defendant anywhere from 0 months (a fine, time served, probation, a rehabilitation program) up to 6 months in jail. The Judge can only go higher than the 6 months in jail in this example if he or she deviates from the sentence guideline range.
If large number in the box is 12, that means the Judge has the discretion to decide on either a jail or prison sentence for the Defendant. If the Judge elects on a jail sentence, the sentence will be 12 months in the county jail, unless the Judge deviates downward from the sentence guidelines. The Defendant also end up serving less than 12 months in jail also due to good time credits, overcrowding, electronic monitoring/tether, and jail programs that, if allowed, will suspend jail time.
If the large number is 12 or less, and the small number is 12 or higher, the Judge has the discretion of imposing either a jail or prison sentence. If both numbers are larger than 12, the Judge must impose a prison sentence unless he or she deviates downward from the sentence guidelines, if HYTA (Holmes Youthful Trainee Act) is granted, or a sentence bargain is reached. For issues concerning HYTA read my blog at www.hilfandhilf.com.
If the sentencing Judge decided on a prison sentence of 12 months, the sentence served is not necessarily a flat 12 months. The Judge will set a minimum sentence and a maximum sentence. The minimum sentence is decided by the sentence guideline range. The maximum sentence is decided by the statutory maximum for the convicted offense, or higher if a Habitual Offender notice was timely filed. If the maximum sentence is life, the Court will fix a number of years for the maximum (with a few exceptions).
In Michigan as of the date of this blog, typically a Defendant has to serve the minimum sentence before he or she can be paroled. Whether or not parole is actually granted after serving the minimum sentence is up to the Michigan parole board. The minimum sentence imposed by the Judge cannot exceed 2/3s of the maximum sentence.
An exception to a Defendant having to serve the minimum sentence is participation in the Michigan Department of Corrections (MDOC) SAI Bootcamp. You can read my blog concerning the MDOC SAI Bootcamp at www.hilfandhilf.com.
There are only a few instances where a prison sentence ends up being a flat sentence (with no bottom and top end to the sentence). There are some crimes that the state has decided that are fixed in duration (for example, 2 years consecutive for felony firearm (use of a firearm in the commission of a felony) first offense. Under HYTA (Holmes Youthful Trainee Act), the Judge can decide upon a flat prison sentence of up to 3 years.
There are a few offenses that have sentence guidelines, but the sentence is controlled by statutory law. For example, Indecent Exposure as a Sexually Delinquent Person carries a penalty of 1 day to life, even though guidelines might be significantly higher. Criminal Sexual Conduct 1st Degree has a mandatory minimum sentence that the Judge imposes even if the sentencing guidelines are lower.
If the box has an asterisk next to the small number, that means an Intermediate Sanction applies. Intermediate Sanction means that the worst that the Defendant receives is a county jail sentence. The maximum allowable time for a county time sentence is no more than 12 months. For example, if the large number is 0 and the small number is 17* - the Judge is still limited to no more than 12 months in the county jail. Why the guidelines were formulated like this - I have no idea.
If the box has a shade on the numbers, this means that a Straddle Cell applies. The Judge can go below the shaded numbers in sentencing a Defendant, and it is not a deviation from sentencing guidelines. For example, if the guideline range provided for 12 to 24 months and a Straddle Cell applies, the Judge has options. The Judge could sentence the Defendant to probation without jail time. The Judge could give a jail sentence anywhere from 1 day to 12 months in jail. The Judge could sentence the Defendant to prison with a minimum and maximum sentence as discussed above.
Some Courts will make Cobbs agreements to give the Defendant more assurances as to the sentence that will be imposed. Typically, a Cobbs agreement will set a cap by the Judge in terms of the sentence that he or she will impose. If at the time of sentencing, the Judge decides that he or she cannot keep the Cobbs agreement due to an error in the initial scoring of the guidelines, information in the Presentence Investigation Report, statements made by the victim, information that the Judge was unaware of at the time of the Cobbs Agreement, etc. the Judge will allow the Defendant to withdraw the guilty or no contest plea and proceed to trial. There are some Courts that will void the Cobbs agreement and sentence the Defendant without allowing the plea to be withdrawn if there was a violation in the bail or bond by the Defendant.
Sometimes the Prosecution will enter into a sentence bargain that the Court will honor. Its rare, but sometimes that bargain will be to a sentence that is below the sentence guideline range.
At the time of sentencing, the Judge will decide what the sentence guidelines are. Prior to sentencing, the Probation Department calculates sentence guidelines and provides a copy to the Judge, the Prosecution, and Defense Counsel. If there are disagreements to the scoring of the sentence guidelines, the Court will listen to arguments by the Prosecution and Defense concerning the scoring, and decide upon what variables to apply. Arguments made concerning sentence guidelines are preserved for appellate purposes.
The Judge can deviate upward or deviate downward from the Michigan Sentence Guidelines if he or she finds substantial and compelling reasons to do so. Deviate means for the Judge to go outside the sentence guideline range. The substantial and compelling reason standard is a high standard for the Judge to meet. There are numerous ways that the Judge can decide to deviate upward or downward, which I will not address in this blog.
If the Defendant returns to the Court for a violation of probation, most Judges believe that either the guidelines don't apply, or a violation of probation constitutes a substantial and compelling reason to deviate from the sentence guidelines. For issues concerning violation of probation you can read my blog at www.hilfandhilf.com
Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.
Daniel Hilf, Esq. of the law firm of Hilf & Hilf, PLC, is a criminal defense lawyer who is driven by a commitment to winning. His legal career is distinguished by an ability to think on his feet, to analyze issues in both conventional and unconventional ways, and to react effectively against the challenges presented by Prosecutors and Courts.