November, 2014

BB 233623:  THE TRIAL COURT ERRED WHEN IT ACCEPTED DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE DURING A PORTION OF THE SENTENCING PROCEEDING THUS VIOLATING DEFENDANT’S SIXTH AMEND-MENT AND DUE PROCESS RIGHT TO APPEAR AT SENTENCING AS WELL AS THE RIGHT TO PERSONAL PRESENCE UNDER M.C.L. 768.3, MCR 6.425 AND STATE AND FEDERAL CASE LAW.

BB 233655:  THE TRIAL COURT ERRED IN CONSIDERING THE EFFECTS OF GOOD TIME CREDITS WHEN IMPOSING SENTENCE; DEFENDANT IS ENTITLED TO A RESENTENCING.

BB 235108:  DEFENDANT’S CONVICTIONS AND SENTENCES SHOULD BE VACATED, AND THE CHARGES ORDERED DISMISSED WITH PREJUDICE, AS THE PROSECUTION FAILED TO PRESENT CONSTITUTIONALLY SUFFICIENT EVIDENCE THAT HIS DRIVING WAS A PROXIMATE CAUSE OF THE ACCIDENT WHICH RESULTED IN THE DEATH AND INJURIES, CONTRARY TO HIS DUE PROCESS RIGHTS.

BB 235108:  WHERE THE TRIAL JUDGE ERRED IN BARRING THE DEFENSE FROM PRESENTING ANY TESTIMONY FROM AN EXPERT WITNESS, IN VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE, THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING WHERE DEFENDANT CAN PLACE THE EXPERT’S TESTIMONY ON THE RECORD, AND MOVE FOR A NEW TRIAL.

BB 235181:  DEFENDANT ENTERED AN INVOLUNTARY PLEA IN VIOLATION OF THE STATE AND FEDERAL DUE PROCESS CLAUSES WERE HE EXPRESSLY CONDITIONED ENTRY OF THE PLEA ON HIS STATUS AS A THIRD HABITUAL OFFENDER, YET WAS SENTENCED AS A FOURTH HABITUAL OFFENDER.

BB 235181:  DEFENDANT’S NO CONTEST PLEA WAS COERCED DUE TO INHUMANE TREATMENT AT THE JAIL AND OTHER PSYCHOLOGICAL PRESSURES, THUS CREATING AN INVOLUNTARY PLEA IN VIOLATION OF THE STATE AND FEDERAL DUE PROCESS CLAUSES.

BB 235849:  THE TRIAL COURT INVADED THE JURISDICTION OF THE PAROLE BOARD BY IMPOSING A NO CONTACT CONDITION WITHOUT STATUTORY AUTHORITY.

BB 235925:  THE CONSIDERATION OF A RISK ASSESSMENT AT SENTENCING VIOLATED DEFENDANT’S STATE AND FEDERAL DUE PROCESS RIGHTS. COUNSEL’S FAILURE TO OBJECT VIOLATED DEFENDANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL; ALTERNATIVELY, IF THE TRIAL COURT DID NOT RELY ON THE RISK ASSESSMENT IN IMPOSING SENTENCE, THE RESULTS MUST BE DELETED FROM THE PRESENTENCE INVESTIGATION REPORT

BB 235926:  DUE PROCESS REQUIRES REINSTATING A FAVORABLE PLEA OFFER WITH A 28-50 YEAR SENTENCING AGREEMENT WHERE DEFENSE TRIAL COUNSEL ADVISED APPELLANT THAT HE WOULD RECEIVE A BETTER DEAL IN FRONT OF THE ASSIGNED TRIAL JUDGE; APPELLANT REJECTED THE OFFER AND PLEADED NO CONTEST THE FOLLOWING DAY BEFORE THE TRIAL JUDGE; AND APPELLANT THEREAFTER RECEIVED A 45-90 YEAR SENTENCE

BB 236183:  DEFENDANT COULD NOT ENTER A VOLUNTARY AND KNOWING PLEA BECAUSE THE TRIAL COURT FAILED TO ADVISE HIM THAT HE WOULD FACE MANDATORY CONSECUTIVE SENTENCING.  THE TRIAL COURT LACKED THE AUTHORITY TO CURE THIS DEFECT BY IMPOSING CONCURRENT SENTENCES.  RATHER, THE ONLY REMEDY IS TO ALLOW DEFENDANT TO WITHDRAW HIS PLEA.

BB 237406:  BY STATUTE, COURT RULE, AND THIS COURT’S BINDING PRECEDENT, COUNSEL’S FAILURE TO REGISTER A GUIDELINES-SCORING OBJECTION AT SENTENCING DOES NOT WAIVE THE ISSUE FOR LATER INCLUSION IN A MOTION FOR RESENTENCING. THE COURT BELOW SHOULD HAVE GRANTED DEFENDANT-APPELLANT’S PRIOR-RECORD-VARIABLE-SCORING OBJEC-TIONS AND RESENTENCED HIM.

BB 237406:  THOUGH IN SCORING THE SENTENCING GUIDELINES A JUDGE MAY PROPERLY INCLUDE CRIMINAL BEHAVIOR FOR WHICH A DEFENDANT WAS NEVER CONVICTED, IF THE DEFENDANT CHALLENGES ITS ACCURACY THE JUDGE MAY NOT TREAT THE AS-YET-UNPROVED ALLEGATION AS ITSELF PROOF BY A PREPONDERANCE OF EVIDENCE, BUT MUST INSTEAD AFFORD THE DEFENDANT A HEARING AT WHICH “TO TEST THE ACCURACY OF TH[E UNDERLYING] FACTS.”

BB 236953:  DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE DURING JURY SELECTION IN DISCLOSING APPELLANT’S INADMISSIBLE AND HIGHLY PREJUDICIAL EXTENSIVE CRIMINAL HISTORY, AND IN ELICITING THAT HISTORY DURING DIRECT EXAMINATION OF APPELLANT.

BB 237487:  DEFENDANT IS ENTITLED TO FULL JAIL CREDIT OF 197 DAYS FOR THE PERIOD OF TIME HE WAS INCARCERATED FROM ARREST UNTIL SENTENCING, EVEN IF HE WAS ALSO SERVING A SENTENCE FOR A RELATED PROBATION VIOLATION MATTER.

BB 237605:  DEFENDANT WAS DEPRIVED OF THE RIGHT TO PRESENT A DEFENSE WHEN THE TRIAL COURT REFUSED FUNDS TO HIRE A COMPUTER FORENSIC EXPERT.

BB 237809:  THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S PRE-SENTENCE MOTION FOR PLEA WITHDRAWAL WHERE DEFENDANT ASSERTED A POSSIBLE DEFENSE, THE PRELIMINARY EXAMINATION TESTIMONY WAS LESS THAN OVERWHELMING AND THE PROSECUTOR FAILED TO ESTABLISH SUBSTANTIAL PREJUDICE.