A question was posed on the Criminal Law Section forum of the State Bar in late March: What is the maximum penalty for an attempt to commit an offense that, when completed, would have a five-year maximum penalty? 

Although the attorney who posted the question had dutifully consulted the attempt statute, MCL 750.92, the answer was unclear because the statute appears to say that an attempt to commit a crime with a five-year maximum penalty also has a five-year maximum penalty (look at paragraph 2):

Sec. 92. Attempt to commit crime--Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

1. If the offense attempted to be committed is such as is punishable with death, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years;
2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year;
3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed ½ of the greatest punishment which might have been inflicted if the offense so attempted had been committed. [MCL 750.92.].

A second attorney responded on the forum by agreeing (incorrectly) that the maximum penalty was five years for the attempt. A third attorney answered correctly that the penalty was one-half the original penalty, but without providing a case or other citation.

Having the good fortune to have a Westlaw account for some work that I do, I looked up the case and added my response to the forum discussion. Researching this on Westlaw was fairly simple: look up the statute, go to the Notes of Decisions, narrow it down to Sentence and Punishment. There were only 15 entries, and the case that answers this particular question is number 7: People v Loveday, 390 Mich 711 (1973). That case holds that the last clause of paragraph 3 controls for attempt penalties in paragraph 2 (unless the attempt is punishable by a more specific statute). In other words, an attempt punishable under MCL 750.92 will have a maximum penalty that never exceeds one-half the penalty for the completed offense.

But what if you don’t have a Westlaw or Lexis account? The State Bar of Michigan offers a free legal research option called Fastcase. It’s not an intuitive search engine, but the Fastcase customer service department was extremely helpful when I called.

That said, researching this particular question on Fastcase was a challenge because the relevant case does not use the expected language. I started with a search using three words without punctuation – maximum penalty attempt – but this resulted in 904 cases. I narrowed the search – 750.92 maximum sentence – but this resulted in 117 cases.

Working with the customer service representative, we tried to reverse-engineer the query by looking at the Loveday case and the language it used. In the end, we settled on a query that uses brackets (a surprise to me) and eliminates the letters MCL. We also used the word, “penalty” rather than “sentence.” In other words, the query was this: [750.92 maximum penalty]. The query was successful, and it leads to the following tips for researching on Fastcase:

1. Go to Fastcase on the State Bar’s website (you’ll need to login).
2. Choose Michigan as the jurisdiction.
3. Brackets are the key to Fastcase. Put your search terms in brackets with one space between each word.
4. For the attempt question, the query was: [750.92 maximum penalty]. Note, you do not need to put “MCL” before the statutory section and there is no need to put a period after the query (the period in the last sentence merely serves as punctuation for this article). This specific query produced eight results with the Loveday case being number six.
5. If you try adding the number five to the query, as in: [750.92 maximum penalty five] or [750.92 maximum penalty 5], you will reduce the number of results to two, but neither result will be correct.
6. If you try adding the word “half” to the query, voila! The query is: [750.92 maximum penalty half] and produces one result: People v Loveday.
7. For future queries: if you want to remember all the above, select the History tab at the top right in Fastcase and you will find your earlier browsing history.

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