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One Court of Justice Blog

Nov 2016
November 17, 2016

Sixth Amendment is not violated where court relies on judicial fact-finding to impose consecutive sentencing, says COA

The Sixth Amendment, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt, but that requirement does not apply to the consecutive sentencing statute, according to People v Deleon, No. 329031.  MCL 750.520b(3) allows a term of imprisonment imposed for first-degree criminal sexual conduct to be “served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.”  In Deleon, the trial judge found that the defendant’s criminal sexual conduct convictions (CSC I and CSC II) both arose from the same transaction and therefore imposed consecutive sentencing.  The court of appeals held that this did not violate the Sixth Amendment right to trial by jury.

Oct 2016
October 26, 2016

COA: Although not a “child”, a fetus is a “victim” for purposes of scoring OV 9 under Michigan Sentencing Guidelines

A court may count a fetus as a “victim” when scoring offense variable 9 (“OV 9”) of the Michigan Sentencing Guidelines, which accounts for the number of victims placed in danger of physical injury or death.  In People v. Ambrose, No. 327877, the Court of Appeals held that OV 9 allows a trial court to count as a “victim” “one that is acted on” by a defendant’s criminal conduct. Accordingly, a fetus may be counted as a “victim” for offense scoring purposes.  The court was careful to distinguish its decision from People v. Jones, which held that a fetus is not a “child” for purposes of the first-degree child abuse statute.  In this case, unlike in Jones, the court was not required to declare that a fetus is a “person” under the law.

Oct 2016
October 07, 2016

COA: Parole Board retains discretion where Governor commutes sentence to permit parole but fails to explicitly grant parole

If the Governor wishes to commute a prison sentence and order release or immediate parole, the Governor must explicitly express such instruction in the commutation. In Makowski v. Governor, No. 327396, the Court of Appeals held that absent express instruction in the Governor’s commutation that grants parole or release, discretion regarding parole decisions remains with the parole board.  Consequently, although plaintiff’s commutation made him eligible for parole, it did not mandate parole. 

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