There are two types of criminal sentences in Michigan: concurrent sentencing and consecutive sentencing. Concurrent sentences are those sentences for multiple offenses that are served at the same time. For example, if a person was sentenced on two counts of assault and battery to 93 days in jail each due to punching two different people in the same bar fight, then that person serves both sentences at the same time and is released after 93 days in jail total. Consecutive sentences are those sentences for multiple offenses that are served one after the other instead of at the same time. For example, if a person was sentenced to 2 years in prison for felonious assault due to shooting someone and 2 years in prison for firearm used in the commission of a felony (“felony-firearm”), then those consecutive sentences would be served 2 years then 2 years after for a total of 4 years. For the defendant, concurrent sentencing is preferred to consecutive sentencing.
The courts have made it clear that consecutive sentences are the exception to the rule and not the default setting. “In this jurisdiction, concurrent sentencing is the norm.” People v. Brown, 220 Mich App 680, 682; 560 NW2d 80 (1996). “A consecutive sentence may be imposed only if specifically authorized by statute.” Id. This means that trial courts cannot hand out consecutive sentences for multiple crimes unless the consecutive sentence is expressly allowed under Michigan law.
With respect to consecutive sentences, there are instances where trial courts have no choice but to issue mandatory consecutive sentences and instances where trial courts have the option to make discretionary consecutive sentences or not. This blog will explain the circumstances where mandatory and discretionary consecutive sentences would come into play.
MANDATORY CONSECUTIVE SENTENCES
The following circumstances require the trial court to issue consecutive sentences under Michigan law.
- CRIMES COMMITTED DURING INCARCERATION OR ESCAPE CONSECUTIVE TO TERM OF IMPRISONMENT: “A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve in a penal or reformatory institution in this state.” MCL 768.7a(1).
- FELONY COMMITTED ON PAROLE CONSECUTIVE TO TERM OF IMPRISONMENT FOR PREVIOUS OFFENSE: “If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.” MCL 768.7a(2).
- MAJOR CONTROLLED SUBSTANCE OFFENSE COMMITTED DURING PENDING FELONY CONSECUTIVE TO SENTENCE FOR PREVIOUS FELONY: “[I]f a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent offense, . . . [i]f the subsequent offense is a major controlled substance offense, the sentences imposed for the prior charged offense and the subsequent offense shall run consecutively.” MCL 768.7b(2)(b).
- PRISON BREAK OR ESCAPE CONSECUTIVE TO UNDERLYING TERM OF IMPRISONMENT: “A person imprisoned in a prison of this state who breaks prison and escapes, breaks prison though an escape is not actually made, escapes, leaves the prison without being discharged by due process of law, attempts to break prison, or attempts to escape from prison, is guilty of a felony, punishable by further imprisonment for not more than 5 years. The term of the further imprisonment shall be served after the termination, pursuant to law, of the sentence or sentences then being served.” MCL 750.193(1).
- JAIL BREAK OR ESCAPE CONSECUTIVE TO UNDERLYING TERM OF IMPRISONMENT: “A person lawfully imprisoned in a jail for a term imposed for a felony who breaks jail and escapes, breaks jail though an escape is not actually made, escapes, leaves the jail without being discharged from the jail by due process of law, or attempts to escape from the jail, is guilty of a felony. A person who violates this subsection shall be imprisoned for the unexpired portion of the term of imprisonment the person was serving at the time of the violation, and any term of imprisonment imposed for the violation of this subsection shall begin to run at the expiration of that prior term of imprisonment.” MCL 750.195(2).
- (ATTEMPTED) BREAKING OR ESCAPING JAIL WHILE AWAIT COURT PROCEEDING CONSECUTIVE TO UNDERLYING TERM OF IMPRISONMENT: “A person lawfully imprisoned in a jail or place of confinement established by law, awaiting examination, trial, arraignment, or sentence for a felony; or after sentence for a felony awaiting or during transfer to or from a prison, who breaks the jail or place of confinement and escapes; who breaks the jail, although no escape is actually made; who escapes; who leaves the jail or place of confinement without being discharged from the jail or place of confinement by due process of law; who breaks or escapes while in or being transferred to or from a courtroom or courthouse, or a place where court is being held; or who attempts to break or escape from the jail or place of confinement is guilty of a felony. A term of imprisonment imposed for a violation of this subsection shall begin to run at the expiration of any term of imprisonment imposed for the offense for which the person was imprisoned at the time of the violation of this subsection.” MCL 750.197(2).
- FELONY-FIREARM OFFENSE CONSECUTIVE TO UNDERLYING FELONY: “A term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.” MCL 750.227b(3).
- PRISONER TAKING HOSTAGE OFFENSE CONSECUTIVE TO UNDERLYING OFFENSE: “A person imprisoned in any penal or correctional institution located in this state who takes, holds, carries away, decoys, entices away or secretes another person as a hostage by means of threats, coercion, intimidation or physical force is guilty of a felony and shall be imprisoned in the state prison for life, or any term of years, which shall be served as a consecutive sentence.” MCL 750.349a.
DISCRETIONARY CONSECUTIVE SENTENCES
There are a great number of statutes in the Michigan Penal Code that give trial courts the discretion to issue consecutive sentences. Usually, these statues authorize consecutive sentences for other convictions or violations of law arising out of the same transaction. Offenses that authorize discretionary consecutive sentences include, BUT ARE NOT LIMITED TO, the following:
- SENTENCES FOR OFFENSES COMMITTED PENDING DISPOSITION OF A PRIOR FELONY CHARGE: “[I]f a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, . . . the sentences imposed for the pr ior charged offense and the subsequent offense may run consecutively”. MCL 768.7b(2)(a).
- FIRST DEGREE HOME INVASION: “The court may order a term of imprisonment imposed for home invasion in the first degree to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.” MCL 750.110a(8).
- CARJACKING – “A sentence imposed for a violation of this section may be imposed to run consecutively to any other sentence imposed for a conviction that arises out of the same transaction.” MCL 750.529a(3).
- FIRST DEGREE CRIMINAL SEXUAL CONDUCT – “The court may order a term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.” MCL 750.520b(3).
- ASSAULTING, BATTERING, RESISTING, OBSTRUCTING AND OPPOSING POLICE OFFICERS AND OTHER CERTAIN PERSONS – “A term of imprisonment imposed for a violation of this section may run consecutively to any term of imprisonment imposed for another violation arising from the same transaction.” MCL 750.81d(6).
- WITNESS TAMPERING OR INTIMIDATION – “The court may order a term of imprisonment imposed for violating this section to be served consecutively to a term of imprisonment imposed for the commission of any other crime including any other violation of law arising out of the same transaction as the violation of this section.” MCL 750.122(11).
- USING A COMPUTER TO COMMIT CERTAIN SEX CRIMES – “The court may order that a term of imprisonment imposed under this section be served consecutively to any term of imprisonment imposed for conviction of the underlying offense.” MCL 750.145d(3).
- MANUFACTURE, CREATE, DELIVER OR POSSESS WITH INTENT TO MANUFACTURE, CREATE OR DELIVER A CONTROLLED SUBSTANCE CLASSIFIED AS SCHEDULE 1 OR 2 DRUG CONTRARY TO MCL 333.7401(2)(a): “A term of imprisonment imposed under subsection (2)(a) may be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.” MCL 333.7401(3).
“[T]rial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.” People v Norfleet, 317 Mich App 649, 654; 897 N.W.2d 195 (2016). “The decision regarding each consecutive sentence is its own discretionary act and must be separately justified on the record.” Id at 665. The trial court should give particularized reasons referring to the specific offenses and the defendant to impose each consecutive sentence so that the rational is fully articulated. An appellate court can review the imposition of discretionary consecutive sentences on the basis of whether or not the trial court abused its discretion. Id at 664.
TRIAL COURTS ARE REQUIRED TO NOTIFY DEFENDANTS OF DISCRETIONARY CONSECUTIVE-SENTENCING AUTHORITY
In a case of first impression, the Michigan Supreme Court held in People v Warren, 949 NW2d 125; SC 158065 (Mich. 2020) that MCR 6.302(B)(2) requires a trial court, in cases in which such advice is relevant, to advise a defendant of its discretionary consecutive-sentencing authority and the possible consequences of that authority for the defendant’s sentence, because this authority clearly affects the defendant’s “maximum possible prison sentence for the offense.” In this case, the trial court committed error when it denied the defendant’s motion to withdraw his plea due to the court’s failure to apprise defendant of this authority and the possible consequences for sentence.
MCR 6.302(A) provides that a trial court may not accept a plea of guilty or nolo contendere unless it is convinced that the plea is understanding, voluntary, and accurate. To ensure that a defendant understands the consequences of his or her plea, MCR 6.302(B)(2) requires the trial court to advise the defendant of the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law. If these warnings are not given, then a discretionary consecutive sentence is invalid.
CONSECUTIVE SENTENCES INCREASE THE STAKES SO HAVING A SKILLED CRIMINAL DEFENSE LAWYER IN YOUR CORNER IS CRITICAL
In any criminal case, the prosecutor has the burden of proving the defendant’s guilt beyond a reasonable doubt. It is absolutely essential to get good legal counsel from the very beginning so that you can be apprised of the maximum risks in your case and have a solid foundation to decide whether to go to trial or take a plea bargain. Even if the evidence against you is strong, a skilled criminal defense lawyer can negotiate a solution that can take consecutive sentencing off the table. Don’t wait until it’s too late to protect your rights.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.