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Blogs | May 1, 2015
2 minute read

COA holds that defendant cannot be sentenced as both a general habitual offender and a SORA habitual offender

In People v. Allen, No. 318560, the Michigan Court of Appeals held that the trial court erred by sentencing the defendant under both the general habitual offender provision, MCL 769.10(1)(a), and the SORA habitual offender provision, MCL 28.729(1)(b). The defendant was convicted of failing to register as a sex offender under the Sex Offender Registration Act, MCL 28.729(1)(b) pursuant to a jury trial. The court held that since the language in the general habitual offender statute directs the court to sentence the defendant to a maximum term that is not more than one and one-half times the sentence for a first offense for that crime, the trial court erred by sentencing the defendant to one and one-half times the maximum sentence under the SORA habitual offender provision.

At trial, the prosecution called the defendant’s spouse to testify, and she testified as to where he had been staying most of the time, which was not his registered address. The court also held that a defendant does not have standing to challenge the court’s failure to inform his spouse of the spousal privilege. The court held that because the privilege belongs to the witness-spouse and the witness-spouse alone can consent to testifying against his or her spouse under MCL 600.2162(2), the defendant does not have standing to challenge the issue on appeal. The court, however, noted that nothing should stop counsel for the defendant-spouse from objecting to the testimony of a witness-spouse, and that courts should generally inform the witness-spouse of the privilege and the right to refuse to testify.

The Court of Appeals rejected claims that the court erred in allowing the testimony of a witness who was belatedly endorsed as a witness and sat in the courtroom during opening statements in violation of the court’s sequestration order. The Court of Appeals also rejected the defendant’s ineffective assistance of counsel claims because the defendant could not establish that his attorney’s failure to file a witness list as instructed prejudiced him, since the evidence that he did not lived at his registered address was overwhelming. Further, the attorney’s failure to seek a hearing to determine the voluntariness of his statements to police was not error because he was not in custody when the statements were made.