COURT FOR THE COUNTY OF 
| Chapter 23: Sentencing |
One of the most neglected areas of criminal defense advocacy is sentencing advocacy. While most defense attorneys orally advocate for their clients at sentencing, written sentencing memoranda and motion practice are rare. To prepare adequately for sentencing, you will need to do a thorough investigation of your client's life.
An investigation into the facts of your client's life has two basic goals: a) to provide evidence consistent with any theory you develop concerning your client's lesser degree of culpability; and b) to provide the sentencing judge with a full, reliable and accurate understanding of your client. Since there is no right to discovery for aggravation or mitigation, you must determine what evidence there is both for and against your client in order to be sufficiently prepared for the evidence submitted in aggravation. Anything that gives insight into why your client was involved, as well as any positive information about him, should be presented to the sentencing judge.
The investigation into your client's life will begin with an interview of your client, but should never end there. Often, clients have problems that prevent them from giving you the kind of history you need. It is important to explore your client's life with people who knew him before and since the crime, and to dig up all the written reports and other documents you can find about him.
Obviously, it is also important to particularize your presentation to your individual client. The example contained in this section shows the fruit of doing an investigation into your client's life, and a method of presenting it to the court in written form. You should present a written document to both the judge and the probation department (before the probation department's report is written) and present live testimony to the court.
23.1.a Motion to Present Defense Testimony at Sentencing [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
MOTION TO PRESENT DEFENSE TESTIMONY AT SENTENCING HEARING
The Defendant, 
, by 
counsel, requests that this Court give him the opportunity
to present live testimony at his sentencing hearing, presently scheduled for 
for the following reasons:
1. Pursuant to Michigan Court Rule 6.425(D)(2)(c), 
must be given "an opportunity to advise
the court of any circumstances 
believe[s] the court should consider in imposing sentence."
2. While the Michigan Court Rules do not prescribe the presentation of live testimony at a sentencing hearing, neither do they forbid it.
3. 
intends to present live testimony on only the relevant and important mitigating factors
of
4. 
constitutional rights to due process of law and effective assistance of counsel require that
he be permitted to present testimony at his sentencing hearing. US Const, Ams V, VI, XIV; Const 1963, art
1, §§ 17, 20.
5. In order for this Court to be able to give due consideration to matters which favor mitigating the defendant's
sentence, 
needs to be able to present evidence in his favor.
For these reasons, 
requests that 
be permitted to offer testimony at the
sentencing hearing.
Respectfully submitted,
___________________
Attorney for Defendant
23.1.b Sentencing Memorandum [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
The Defendant, 
, by 
counsel, submits this memorandum regarding his
sentencing scheduled for 
. The first part of the memorandum addresses 
position regarding
the appropriate scoring of his conviction under the sentencing guidelines. The second part addresses specific mitigating
factors which 
is asking this court to take into account before sentencing. The third section of
this memorandum consists of appendices which 
submits in support of his position.
CONVICTION UNDER THE 
1. 
has not, at the time of this writing, seen the Probation Department's report, and thus does
not know what it will report or recommend.
2. As this court is aware, the jury convicted 
of the lesser charged offense of second-degree
murder.
3. Under the Michigan Sentencing Guidelines Offense Variable 3, (Intent to Kill or Injure), it may first appear
that 
should receive a score of twenty-five points. This is because that offense variable
closely tracks the definition of second-degree murder. In fact, the text which accompanies the score of twenty-five points reads: "[u]npremeditated intent to kill; or intent to do great bodily harm; or creation or a very high
risk or death or great bodily harm with knowledge that death or great bodily harm was the probable result."
4. However, in the instructions which accompany OV3, there is an entry, which reads: "[s]core '10' where a killing is intentional within the definitions of murder second-degree or voluntary manslaughter but the death occurred in a combative situation or in response to victimization of the offender by the decedent."
5. All of the evidence in this case is that this was a combative situation; 
statement to the
police as well as the testimony of the eyewitness confirm that it was the result of an argument and a physical
struggle which was started by the deceased. See People v Payton, 186 Mich App 387; 464 NW2d 907 (1990)
[remanding for resentencing reducing OV3 to ten points where the second-degree murder occurred in a
combative situation].(1)
6. It is 
position that he should be scored ten points on OV 3.
7. Regarding the prior record variable, it is 
position that due to more than ten years of
being conviction-free, he should score "zero."
8. The instructions to the Michigan Sentencing Guidelines clearly state "do not score any prior felony convictions, misdemeanors, or juvenile delinquency adjudications that precede conviction-free periods of 10 years or more." A conviction-free period exists if more than 10 years have elapsed between the discharge date from any conviction or adjudication and the commission of the next offense that results in a conviction. When the discharge date is not available, the instructions indicate to add: (a) the amount of time the offender is sentenced to probation, or (b) the amount of time of the minimum incarceration term, to the conviction date, to determine an approximate discharge date.
9. More than 10 years has elapsed from the time that 
was released from prison in 
, until
he killed the deceased on 
.
10. As a result, no prior record should be taken into account under the Michigan Sentencing Guidelines. The prior record score should be "zero."
1. There are a number of mitigating factors which 
asks this court to take into consideration.
2. First, the fact that this stabbing occurred in the course of a mutually combative situation is a mitigating factor.
a. The fact that both parties had been drinking, and that their judgment was undoubtedly clouded by that fact is also a factor to take into account.
b. Clearly this was an impulsive, not planned, act (as the jury found). While this Court will take that into
account under the Michigan Sentencing Guidelines, it is important to note in determining where
within those guidelines 
should fall, that this impulsive act occurred within
seconds, certainly in less than a minute or two.
c. It is precisely this kind of impulsivity that the guidelines recognize as a matter of law and which this Court may recognize as well.
3. Another mitigating factor is 
mental condition.
a. As this court is aware, 
has a paranoid personality disorder and suffers from
delusional thinking (see report of 
, attached as Appendix I).
b. In fact his mental disturbance is such that defense counsel maintained (and continues to maintain) that the defendant is incompetent for trial or sentencing.
c. Counsel understands that this Court has ruled otherwise, and found 
to be fit, but
surely his continued impulsive and uncontrolled behavior is an indication to this Court that while he
may be fit, the defendant clearly suffers from a mental disease.
d. Given 
paranoid and delusional thinking, what some may term his
"overreaction" to the threat posed by the deceased is more easily understood.
e. Counsel for 
asks this Court to consider his mental condition as a mitigating
factor in passing sentence on him.
4. Another mitigating factor is 
age.
a. 
is 
b. This Court may take into account his age, and the probable amount of time he will spend in prison
versus his life expectancy, in sentencing 
.
5. Finally, 
has the support and love of family and friends as reflected in the attached
affidavits:
a. 
his 
, describes him as a dutiful and loving son.
also says that his behavior became more erratic and he began to seriously abuse alcohol
in his early twenties after a car accident which included a period of unconsciousness.
b. 
is 
brother. He writes about the positive influence the defendant has
been for him, in particular in helping him to fend off pressure to join the street gang in Gary, Indiana
where the family resided.
c. 
is a friend of 
. He writes to tell the Court about the times that
has shared what little he had with him, when he was down on his luck and had
nothing to eat.
d. The original memorandum recites summaries from each of the nearly 30 letters in support of
that were submitted.
For these reasons, 
requests that this Court sentence him in accordance with this
Memorandum.
Respectfully Submitted,
___________________
Attorney for Defendant
1. 1 A similar result was reached in People v Dozier, an unpublished opinion issued in 1995 (Court of Appeals #155738), which was affirmed on other grounds at 451 Mich 897; 549 NW2d 578 (1996).