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Michigan Court of Appeals Reverses Judge's "Trial Tax" Sentence

On March 22nd, 2018, the Court of Appeals released their decision in People v Pennington, __ Mich App __; __ NW2d __ (2018)(Docket No. 323231) holding that a Wayne County judge improperly sentenced the defendant to the top of the sentence guidelines on the basis of a blanket policy for sentencing after losing at trial.

Floyd Ray Pennington was charged with second-degree murder, felon in possession of a firearm and possession of a firearm during the commission of a felony. He shot James Buckman Jr. to death after an altercation in the driveway of Great Lakes Power & Equipment on December 24th, 2013, but he maintained that he was acting in self-defense. At a bench trial, the judge rejected the self-defense theory and found him guilty of second-degree murder and the firearm charges. Mr. Pennington was sentenced to 46.5 to 56 years in prison for the second-degree murder conviction and 1 to 5 years in prison for the felon-in-possession conviction, both to be served consecutively to a 5-year prison sentence for the felony-firearm conviction.

The Defendant requested that the appellate court vacate his sentence and remand the case to a different judge due to that trial court's blanket policy of imposing sentences at the top of the guidelines on defendants that go to trial as opposed to pleading guilty. Ironically, this same judge was admonished in another Court of Appeals case in 2016 for using this practice to sentence defendants as opposed to a more individualized sentence. The judge confirmed this practice but indicated that the purpose of its practice is "not to punish people for exercising their right to go to trial" but to reward people who accept responsibility for their behavior and plead guilty. The Court of Appeals ruled that this policy is fundamentally inconsistent with the principle that a court cannot base its sentence (even in part) on a defendant's refusal to admit guilt. Sentencing defendants to the top of the guidelines or increasing the sentence in any other way because they went to trial is a violation of due process rights. As a result, Mr. Pennington's sentences were vacated and remanded to a different judge for resentencing.

The euphemism that defense attorneys use is "trial tax", implying that a judge will impose a harsher sentence after a defendant asserts their constitutional right to trial as opposed to pleading guilty. In the United States, 90 to 95 percent of criminal cases in state and federal court resolve through guilty pleas. A key contributor to why so few defendants go to trial is the enormous power the prosecutor has in the plea bargain process. However, another significant fear is that the judge will access the "trial tax" if a defendant forces the court to spend the time and money related to trials to obtain a conviction as opposed to simply pleading guilty.

Most judges will not be as blatant as Mr. Pennington's sentencing judge in acknowledging the "trial tax" scheme because it will almost certainly result in resentencing from the appellate court. Often, the sentence will be enhanced and justified by other factors explicitly explained by the judge to avoid such accusations. When it does occur, it is a severe attack on our democratic system where defendants are innocent until proven guilty and the burden of proof is on the government to determine if a crime was committed. While the court may properly consider remorse in deciding the appropriate sentence for a defendant, it should never for a minute consider the failure of any defendant to admit their guilt even after a trial.

The fear of the "trial tax" has certainly contributed to the death of the jury trial in America and the rampant use of plea bargains to resolve criminal matters. It is a consideration in the mind of every defendant and their criminal defense attorneys when it comes to deciding whether to take the prosecutor's offer or proceed to trial in pursuit of an acquittal. This doesn't mean that there are not appropriate circumstances to accept a deal and plead when the level of guilt is clear and the evidence against you is strong. It does mean that it is more important than ever to have a capable criminal defense attorney in your corner to hold the trial judge to the constitutional standard of sentencing fairly. Even Mr. Pennington deserved to have a fair and individual assessment of his circumstances for sentencing and not fall prey to blanket policies designed to suppress the exercise of constitutional rights.

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