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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

On February 2, 2010, the Michigan Court of Appeals issued a per curiam opinion for publication in <a href="http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100202_C287446_34_287446.OPN.PDF" target="_blank" rel="noopener"><em>People v. Lucey</em>, No. 287446</a>, where it remanded for resentencing or rearticulation of a substantial and compelling reason for departing from sentencing guidelines. The trial court imposed a prison sentence rather than the lesser penalty prescribed for reasons of logistical convenience and because the offense was a 'location departure'. The court held these were not substantial and compelling reasons.

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Defendant was a parolee who pleaded guilty to attempted third-degree fleeing and eluding under the Michigan Vehicle Code, which carries a maximum penalty of 5 years in prison. Here, the sentencing guidelines recommended a minimum term of 5 to 17 months. By statute, when the term is 18 months or less, an intermediate sanction must be imposed unless a substantial and compelling reason is articulated. An intermediate sanction is defined as 'probation or any sanction, other than imprisonment in a state prison or state reformatory.'

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The trial court, however, imposed a sentence of 17 to 30 months in state prison because this offense was a 'location departure' requiring him to carry out the rest of his previous sentence in prison, and because it was logistically inconvenient to bring him back to jail to carry out the last 17 months when he was already in the state prison. The Court of Appeals held these were not compelling and substantial reasons. It agreed with the prosecutor that if the guidelines did not adequately account for the defendant's extensive criminal history and failures at rehabilitation, this could be a substantial and compelling reason for departing from the guidelines. But it was the trial court's obligation to articulate that reason, and it failed to do so in this case.

On the other hand, the Court affirmed the conviction. ' The defendant contended that the pre-sentence investigation report ('PSIR') contained inaccuracies and that he was denied ineffective assistance of counsel. The Court of Appeals disagreed. It concluded that the trial court did not abuse its discretion in refusing to correct the purported inaccuracies in the PSIR and that the defendant failed to prove ineffective assistance of counsel where he failed to show his plea was involuntary or made without understanding.

COA Opinion: Trial courts must articulate a substantial and compelling reason for departing from the sentencing guidelines

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