Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

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Immigration consequences of plea: No judicial involvement

On a 5-2 vote, the Michigan Supreme Court has declined to adopt court rules that would have required judges to either (a) inquire whether a defendant knows that pleading guilty may have potential immigration consequences or (b) provide an advice of rights to that effect.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court held that an attorney provided ineffective assistance by not telling a client that pleading guilty to a drug charge could get him deported.

The MSC didn’t provide a reason why it passed on both versions of proposed amendments to MCR 6.302 and MCR 6.610.

Justices Marilyn Kelly and Michael Cavanagh dissented from the majority’s May 16 decision.

MSC nixes change to MCR 6.302

Judges advising defendants of their potential sentences at a plea hearing need not mention that the actual sentence may be longer than stated if a defendant is a habitual offender.

The Michigan Supreme Court yesterday declined to adopt an amendment to MCR 6.302, which would have imposed the requirement.

Under the habitual offender statute, MCL 769.13, prosecutors may advise defendants after a plea hearing that they intend to seek an enhanced sentence. This could create a discrepancy between the sentencing range announced at the plea hearing and the actual sentencing range that could be imposed.

The proposed amendment would have required judges to make defendants aware of that circumstance at the plea hearing.

The MSC turned down the proposed amendment on a 5-2 vote. Justices Michael Cavanagh and Marilyn Kelly would have adopted the amendment.

Western District proposes rules for online sentencing reports

Presentence reports would be submitted and served via the CM/ECF system under proposed amendments to the U.S. District Court for the Western District of Michigan’s local court rules.

The proposed changes to W.D. Mich. LCivR 32 would also require that objections to the report would be filed on CM/ECF as well.

According to commentary accompanying the proposed changes:

Improvements to the CM/ECF software will allow both Probation and counsel to restrict access to these documents, so that the court, the Probation Office and counsel for the relevant parties will have access, but no other person. In this way, the confidentiality of these documents will be preserved, while saving the cost of traditional service and creating a permanent electronic record of these documents.

Here’s a court-provided summary of the proposed changes:

Proposed Rule 32.2(c)(1) requires the Probation Office to submit the disclosure presentence report by the CM/ECF system, with access restricted to the court, the Probation Office, and attorneys for the government and for the relevant defendant. Therefore, neither the public nor co-defendants will have access to the disclosure presentence report.

Likewise, the United States Attorney and counsel for represented defendants must submit any objections to the disclosure presentence report by the CM/ECF system, again restricting access. Proposed Rule 32.2(d). If a party has no objections, the CM/ECF software will allow counsel to so indicate, without the necessity of generating a separate document.

Revised presentence reports, and objections thereto, will be governed by the same process. The intent is that all such documents, which were never disclosed to the public in the past, would remain confidential.

Until the final presentence report has been submitted, the court has neither the intention of accessing the report or objections nor a reason to do so. These documents will be available thereafter, however, should the court (or the Court of Appeals) require access for the purpose of resolving any issue regarding sentencing.

The final PSIR will be submitted by the CM/ECF system, again with restricted access. Amended Rule 32.2(f). Thereafter, sentencing memoranda, motions for departure or variance, and other submissions to the court regarding sentencing should be submitted without restriction, unless the submitting party first obtains leave of court. The court recognizes that these filings sometimes contain sensitive matter, such as details of a defendant’s cooperation, that will merit restricted access. The burden will be on the submitting party to justify restricting access before the document is filed.

Comments are encouraged. All comments should be in writing and must be received by the Court no later than October 17, 2011. Comments should be addressed to:
Tracey Cordes, Clerk
United States District Court
399 Ford Federal Building
110 Michigan, N.W.
Grand Rapids, MI 49503
or submitted electronically to ecfhelp@miwd.uscourts.gov. The Court will consider all comments at its December meeting before promulgating a final version of the proposed rules.

MSC will hear medical marijuana appeals

Portions of Michigan’s medical marijuana law will be tested for the first time in the Michigan Supreme Court.

The MSC has granted leave in two cases, People v. King (COA majority opinion) (COA dissent) (MSC grant order), and People v. Kolanek (COA opinion) (MSC grant orders – 142712 and 142695).

In King, the defendant had a valid medical marijuana card and a statutorily approved amount of marijuana but was charged with manufacturing marijuana on the theory that he was not growing it in an “enclosed, locked facility.”

In Kolanek, the defendant was arrested for a marijuana offense, and then obtained a doctor’s authorization for a medical marijuana card. The doctor testified that Kolanek would have qualified for a card before his arrest. The defendant also had a discussion with the doctor about whether marijuana would be an appropriate treatment for him but this discussion took place before the medical marijuana act became law.

The Court will decide whether the act’s affirmative defense are available to these defendants.

A third medical marijuana case, People v. Walburg, was held in abeyance pending the outcomes in King and Kolanek.

6th Circuit nixes Western District’s early plea ‘incentive’

Eleventh-hour guilty pleas are a fact of life in the criminal justice system.

On the defense side, waiting is a good strategy. You might get a better offer from the government. Favorable evidence may surface. Witnesses may get cold feet.

On the prosecution side, a last-minute plea means months of marshaling evidence and witnesses are all for naught.

And judges dislike reshuffling their calendars on a moment’s notice.

The Western District of Michigan, up until a few days ago, had a policy to discourage all of this.

The policy was typified in a final pretrial and trial order Judge Robert J. Jonker issued in United States v. Mackety:

A defendant who waits until the time set for the final pretrial conference to plead guilty may not receive the one-level reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to move for it.

In other words, even if a defendant accepts responsibility for his wrongdoing, and even if the government agrees that the defendant’s contrition is sincere and his assistance to avoid trial was helpful, the defendant won’t get a break on his sentencing guidelines score to which he might otherwise be entitled.

This is not a good policy, no matter what the motivation, ruled the 6th Circuit after Mackety challenged his sentence following his plea-based conviction.

The record supports the argument that the district court’s policy influenced the Government not to move for a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the § 3E1.1(b) reduction. …

[T]he Government stated that it had not addressed the § 3E1.1(b) reduction in the Plea Agreement because of the district court’s rule and that it would not oppose a third-level reduction.

A similar understanding of the district court’s policy also affected the Probation Officer’s calculation of the advisory Guidelines range. Specifically, the PSR [presentence report] did not recommend a § 3E1.1(b) reduction because Mackety’s plea was “untimely” under the district courts policy … .

The policy runs afoul of what Congress had in mind when it authorized a break for defendants who accept responsibility:

[T]he Government’s prerogative and discretion to move for the § 3E1.1(b) reduction was affected throughout the proceedings by the district court’s policy, a policy that contravenes the Congressional finding expressly stated in § 3E1.1(b) that “the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial.” …

We take this opportunity to advise that such policies should be discontinued immediately because they are inconsistent with Congress’ intent that the Government make the decision whether to move for the additional one-level reduction under § 3E1.1(b).

The 6th Circuit held that Mackety would have to be resentenced because his existing sentence was procedurally unreasonable.

MSC shortens late appeals period in criminal cases

Defendants challenging their convictions with a delayed application for leave to appeal will have less time to do so under the Michigan Supreme Court’s amendment of MCR 7.205(F).

The MSC, on a 4-3 vote, has shortened the late appeal period from 12 months to six. The amendment takes effect Sept. 1, 2011.

The majority adopted the rule without comment. Justice Marilyn Kelly dissented, joined by Justices Michael F. Cavanagh and Diane M. Hathaway.

Kelly said the majority’s justification for the shortened period — that Michigan’s delayed appeal period is too generous when compared to other states — doesn’t hold water because Michigan’s appeals procedure has some significant differences.

A criminal defendant in Michigan has 42 days from the date of entry of a final judgment in which to file an appeal as of right. He or she has 21 days to file an appeal by leave.

Before today’s amendment, if an appeal was not sought within these time limits, a delayed application could be filed within 12 months from the date of entry of the final judgment. This is a two-tiered system but it is not typical of other two-tiered systems.

A majority of states with a two-tiered system have a period as long as ninety days in which to appeal. To perfect the appeal in those states, all that need be filed is a notice of intent. The deadline for filing the appellant’s brief is tolled until the trial transcripts are filed. The brief is then due within six months.

In Michigan, Kelly continued, there are a couple of big differences.

First, the time for appeal begins to run from the final judgment and is not tolled for production of the transcript. A defendant may use the deferred appeal period if he or she misses the initial deadlines because preparation of the transcript is delayed.

Second, Michigan requires an appeal by leave to be made on the merits. Hence, the appealable issues must be identified before the appeal can be filed. And in order to identify the issues, counsel must have the trial transcript. Therefore, the time for appeal by leave in Michigan must be longer than in states that do not require the issues to be identified when the appeal is filed.

Kelly said that in a “significant percentage” of cases, transcripts aren’t ready when the 21-day appeal period expires. In such cases, the delayed appeal period comes into play. And, unlike other states where only a notice of intent to appeal is required, Michigan defendants must present an application on the merits.

It’s a critical difference, Kelly maintained.

[T]he difference between Michigan’s procedures and those of states requiring only a notice of intent to perfect an appeal is highly significant. And it explains why
there is no sound basis to lower Michigan’s appeal period for delayed applications from one year to six months.

Lowering the appeal period for leave cases to six months does not bring Michigan’s appeal period into conformity with the appeal period of other states.

Moreover, the amendment renders Michigan’s rule far more oppressive on appellants than is currently the case.

ADM File. No. 2009-19.