What Is Michigan’s Habitual Offender Statute?

 

Most people are familiar with California’s “three strikes” law from the 1990s that targeted and punished repeat criminal offenders.  The general idea was that a person who committed certain felonies for a third time would be sentenced to life in prison without the possibility of parole because he or she has demonstrated an inability to be reformed.  While this law has since been amended, most states still retain some version of this statute providing increased penalties for repeat offenders.  The State of Michigan is no exception and has handed out some of the longest and harshest sentences in the country due to the operation of its habitual offender statute.

Michigan’s habitual offender statute is applicable to felonies only and operates as follows:

• If a person has ONE prior felony and is convicted of a felony punishable by a term less than life, then the court may sentence the person for imprisonment for a maximum term not exceeding 150% of the statutory maximum for that felony. MCL 769.10(1)(a).  For example, a person convicted of assault with a dangerous weapon (statutory maximum of 4 years) with one prior felony conviction can be sentenced up to 6 years in prison.

• If a person has TWO prior felonies and is convicted of a felony punishable by a term less than life, then the court may sentence the person for imprisonment for a maximum term not exceeding 200% of the statutory maximum for that felony. MCL 769.11(1)(a).  For example, a person convicted of larceny from a building (statutory maximum of 4 years) with two prior felony conviction can have the maximum sentence doubled to 8 years in prison.

If a person has THREE prior felonies and is convicted of an additional felony crime, then the maximum possible penalty is as follows:

• If the subsequent felony is a “serious crime” or a conspiracy to commit a serious crime AND one or more of the prior felony convictions is a “listed prior felony”, THEN the court shall sentence the person to a MINIMUM SENTENCE of 25 YEARS. MCL 769.12(1)(a).

• • • (1) “Serious crime” includes assault with intent to murder (MCL 750.83), assault with intent to do great bodily harm (MCL 750.84), assault with intent to maim (MCL 750.86), assault with intent to rob (MCL 750.88), assault with intent to rob being armed (MCL 750.89), second degree murder (MCL 750.317), manslaughter (MCL 750.321), kidnapping (MCL 750.349), taking a hostage (MCL 750.349a), taking away a child under 14 (MCL 750.350), mayhem (MCL 750.397), criminal sexual conduct – first degree (MCL 750.520b), criminal sexual conduct – second degree (MCL 750.520c), criminal sexual conduct – third degree (MCL 750.520d), assault with intent to commit sexual penetration (MCL 750.520g(1)), armed robbery (MCL 750.529), or carjacking (MCL 750.529a). MCL 769.12(6)(c).

• • • (2) “Listed prior felony” includes ANY of the above-described serious crimes plus first degree arson (MCL 750.72), assault with a dangerous weapon (MCL 750.82), torture (MCL 750.85), assault with intent to commit felony (MCL 750.87), attempted murder (MCL 750.91), home invasion – first degree (MCL 750.110a(2)), home invasion – second degree (MCL 750.110a(3)), child abuse – first degree (MCL 750.136b(2)), child abuse – second degree (MCL 750.136b(3)), vulnerable adult abuse – first degree (MCL 750.145n(1)), vulnerable adult abuse – second degree (MCL 750.145n(2)), solicitation to commit murder (MCL 750.157b), escape from jail or prison (MCL 750.197c), carrying firearm with unlawful intent (MCL 750.226), carrying a concealed firearm (MCL 750.227), intentional discharge of firearm causing serious injury or death (MCL 750.234a, 234b, 234c, 329), stalking a minor (MCL 750.411h(2)(b)), aggravated stalking (MCL 750.411i), fleeing and eluding – first degree (MCL 750.479a(4) or MCL 257.602a(4)), fleeing and eluding – second degree (MCL 750.479a(5) or MCL 257.602a(5)), OWI causing death (MCL 257.625(4)), larceny involving force or violence (MCL 750.530), controlled substance offense punishable by more than 4 years in prison, felony firearm – second offense (MCL 750.227b), or inciting a prison riot (MCL 752.542a). MCL 769.12(6)(a).

• If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court may sentence the person to imprisonment FOR LIFE. MCL 769.12(1)(b).

• If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term that is less than 5 years, the court may sentence the person to imprisonment UP TO 15 YEARS. MCL 769.12(1)(c).

• If the subsequent felony is a “major controlled substance offense”, the court must instead sentence the person as provided in Michigan’s Public Health Code (MCL 333.7401 through MCL 333.7461):

• • • (1) “Major controlled substance offense” means one of the following nine offenses: Manufacturing, creating, delivering or possessing with intent to deliver any amount of a Schedule 1 or Schedule 2 drug (MCL 333.7401(2)(a)(i) through MCL 333.7401(2)(a)(iv)), possession of a Schedule 1 or Schedule 2 drug in some amount over 25 grams (MCL 333.7403(2)(a)(i) through MCL 333.7403(2)(a)(iv)), or conspiracy to commit any of those offenses.

• • • (2) An individual convicted of a “major controlled substance offense” with a prior controlled substance felony on their record may be imprisoned for a term not more than TWICE the term otherwise authorized or fined an amount not more than TWICE that otherwise authorized, or both. MCL 333.7413(1).

• • • (3) An individual convicted of a second or subsequent offense under MCL 333.7410(2) (delivery of Schedule 1 or 2 controlled substance within 1,000 feet of school or library) or MCL 333.7410(3) (possess with intent to deliver Schedule 1 or 2 controlled substance within 1,000 feet of school or library) must be punished by a term of imprisonment of not less than 5 years nor more than TWICE that authorized under the law and, in addition, may be punished by a fine of not more than THREE times that authorized under the law; and is not eligible for probation or suspension of sentence during the term of imprisonment. MCL 333.7413(2).

• • • (4) Michigan courts have consistently held that a defendant’s sentence cannot be “doubly enhanced” by application of the habitual offender statutes and any enhancement provisions contained in the statutory language prohibiting the conduct for which the defendant was convicted. People v Elmore, 94 Mich App 304, 305-306 (1979).

Michigan has an indeterminate sentencing scheme, meaning that offenders are usually sentenced to a prison term that has a minimum and maximum term of years. For example, someone who is convicted of unlawful possession of a concealed weapon (a 4-year/$2,500.00 penalty) might receive a sentence of eighteen months to four years in prison from the judge. The eighteen-month minimum sentence is the earliest opportunity that the offender may be released on supervision by the parole board. The four-year maximum is the “tail” that the offender could serve if they were unable to be released on parole. If the person convicted was a fourth-habitual offender under the statute, then the maximum term will be 15 years, not 4 years.  For the trial court to determine the minimum term, it must calculate the range under Michigan’s sentencing guidelines calculations. For example, when considering the offender’s prior record and certain facts related to the conviction, the sentence guidelines may recommend that the minimum term should be somewhere between 5 months and 23 months.  If the person is a fourth-habitual offender under the statute, this guideline range will increase to a range between 5 month and 46 months.  Under the right circumstances, the trial court can exceed the sentence guidelines and give a minimum term that is up to two-thirds of the maximum term.  Therefore, a person convicted of unlawful possession of a concealed weapon as a fourth-habitual offender can face a sentence of 10 to 15 years in state prison!

The prosecutor is required to serve written notice to the defendant if he or she intends to enhance the sentence under the habitual offender statute.  This notice must be filed within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.  MCL 769.13 (1).  This notice must list all of the prior convictions that the prosecutor will rely upon for purposes of sentence enhancement.  MCL 769.13(2).  If the prosecutor fails to serve this notice within this time frame, then the right to a sentence enhancement is waived (although the prosecutor could dismiss and reauthorize charges for another opportunity to seek a sentence enhancement).  The defendant can challenge the accuracy or constitutional validity of the prior convictions by filing a written motion with the court.  MCL 769.13(4).

The prosecutor will often use the habitual offender enhancement as leverage to secure a plea bargain in a case.  For example, the prosecutor may offer a fourth-habitual offender to plead as charged to a larceny in a building charge in exchange for dropping the sentence enhancement, reducing the offender’s exposure from 15 years in prison to 4 years.  Whether this is a good idea or not depends on individual circumstances of your case.  You should not consider accepting a plea or going to trial on any felony matter unless you consult with a skilled criminal defense attorney first.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC today.