Subscribers to the Criminal Defense Resource Center’s online resources, found at www.sado.org, have access to more than 1,800 appellate pleadings filed by SADO Attorneys in the last five years.  The brief bank is updated regularly and is open to anyone who wants to subscribe to online access.  On our site, briefs are searchable by keyword, results can be organized by relevance or date, and the pleadings can be filtered by court of filing.  Below is a sample of some of the questions presented in briefs added to our brief bank in the last few weeks:

BB 248405:  The trial court plainly erred in determining the scoring for Offense Variables three and eleven for the child sexually abusive conduct conviction, and Offense Variable twelve for the criminal sexual conduct in the first degree conviction in file no. 14-10319, and thus the consecutive minimum sentences for each conviction were based on inaccurately scored guidelines ranges and those sentences represent an improper upward deviation from the properly scored guidelines ranges, entitling Defendant to a resentencing; or in the alternative Defendant was denied his Sixth Amendment right to the effective assistance of counsel due to his trial attorney’s failure to object to the plain errors in scoring these sentencing variables.

BB 248451:  The trial court violated Defendant’s  state and federal constitutional rights to a fair trial and due process when, upon learning that the jury was at an impasse, the court failed to sua sponte give a deadlock instruction; trial counsel was ineffective for failing to object.

BB 248529:  Defendant is entitled to credit for all days served in jail on the instant case, which are related to the same acts about which he tried to inform the court of his whereabouts.

BB 248694:  Defense trial counsel was constitutionally ineffective in failing to challenge a juror who disclosed his condo had been broken into, and, when asked if he would be able to put that experience out of mind, initially responded “possibly.”

BB 248867:  Defendant is presently serving an invalid sentence because the court failed to follow the proper probation violation sentencing proceedings by sentencing prior to the revocation of probation, and proceeding without a presentence report.

BB 248895:  Where Defendant moved to withdraw his plea before sentencing and clearly asserted his factual innocence, as well as his belief that appointed counsel was not representing him competently, the trial court abused its discretion in summarily denying the motion, in violation of Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 249109:  Defendant was denied a fair trial when expert witnesses were allowed to give opinions on the ultimate issue and a prosecution expert was allowed to vouch for the credibility of another key prosecution witness.

BB 249622:  Defendant must be resentenced because the sentencing court failed to state objective and verifiable reasons in support of the guidelines departure and the extent of the departure, which was a life sentence for which parole will likely never be granted, in violation of US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 249630:  Defendant is entitled to resentencing because the trial court imposed an illegal and disproportionate sentence when it imposed a prison sentence without recognizing that a prison sentence represented an upward departure, articulating substantial and compelling reasons for an upward departure, justifying the extent of the actual departure imposed, and imposing a sentence that was proportionate to him as an offender for the particular offense committed.

BB 249890:  Resentencing is required in this case because the trial court did not respond to defendant’s challenges to sentencing information in the manner which is mandated by the federal and state constitutions, Michigan statute and interpretive case law.

BB 249789:  The trial court violated appellant’s due process rights by permitting jurors to ask questions of witnesses during trial.  

BB 249899:  Defendant is entitled to withdraw his guilty plea where he did not validly waive his right to counsel, which is guaranteed by the state and federal constitutions. The court that accepted his guilty plea did not substantially comply with the procedure required by the constitutions and the court rule for waiving the right to counsel.

BB 250499:  Offense Variable 12 of the statutory sentencing guidelines was misscored where the record contains no proof of the specific dates for the dismissed charges and therefore the court cannot conclude that the acts occurred within 24 hours of the sentencing offense, US Const, Am VI; Const 1963, art 1, § 20.

BB 250499:  As the actual loss suffered by anyone in this case was not determined, and the restitution was based only on the complainants’ speculated loss caused by the B&E of their store, US Const, Ams V, VI, XIV; Const 1963, art 1, § 17, Defendant is entitled to have restitution vacated, or alternatively, to remand for a restitution hearing.

BB 249961:  The trial court violated appellant’s due process rights by permitting a former Romulus undercover officer to testify that engaging in sex acts with strip club dancers was not an appropriate investigative tool, which amounted to improper opinion testimony that appellant was guilty of misconduct in office; furthermore, defense trial counsel was constitutionally ineffective in failing to object to similar opinion testimony by the current police chief and to a state police detective testifying that the aggregate amount of money paid to confidential informants and spent on purchases was unusual.

BB 249963:  Defendant was denied due process of law and his conviction must be vacated where the police destroyed material, favorable evidence after a request was timely made by the defense; trial counsel was ineffective for failing to move to dismiss the charge on these grounds.

BB 249986:  Under the sentencing guidelines’ ten-year-gap rule as properly construed, the prior-record-variable level should have been “A,” not “F.”  Defendant must be resentenced.

BB 249997:  Where Defendant-Appellant contested the restitution amount at sentencing, Judge Brown erred by later ordering that he pay the contested amount without first holding a restitution hearing.

BB 250021:  The trial court improperly ordered appellant to pay $200.00 in general court costs without statutory authority.

BB 250205:  Defendant is entitled to an opportunity to withdraw his plea because his plea was not knowingly and understandingly made where counsel failed to properly advise Defendant of the possible pretrial motions relevant to his defense. The failure to advise Defendant constitutes ineffective assistance of counsel rendering the plea involuntary in violation of the due process provisions of the federal and state constitutions.

BB 250272:  The prosecution’s closing and rebuttal arguments, which vouched for the credibility of the complainant, deprived defendant of his state and federal constitutional due process right to a fair trial.

BB 250340:  Defendant’s federal and state constitutional rights to the effective assistance of counsel were violated and he is entitled to a new trial where trial counsel failed to investigate and present an exculpatory witness.

BB 250375:  The trial court erred in failing to instruct the jury to determine each defendant’s intent separately. Counsel was ineffective for failing to object to the improper instruction, and for failing to request the multiple defendants instructions.

BB 250375:  Defendant was deprived of his right to a fair trial by the playing, over objection, of an irrelevant, inflammatory video of the co-defendants rapping about “gettin doe” by robbing people.  Counsel was ineffective for failing to request a limiting instruction.

BB 250614:  The trial court abused its discretion in repeatedly denying the defense pre-sentencing motion to withdraw the no contest plea, as the trial judge clearly erred in refusing to refer Defendant to the forensic center for a criminal responsibility evaluation, and thus deprived him of his statutory right to investigate the potential of raising an insanity defense at trial, and the prosecution would not have been substantially prejudiced by the withdrawal of the plea.

BB 250635:  The trial court erred by not instructing the jury that the prosecution had the burden of proving that the police officers’ actions were lawful and that a citizen has the right to resist an unlawful arrest.

BB 250636:  In this prosecution for carrying a concealed weapon, counsel was ineffective for failing to seek suppression of the weapon, which was discovered after a warrantless search of Defendant-Appellant’s vehicle.

BB 250640:  Defendant-Appellant’s Sixth Amendment right to confront and cross-examine the witnesses against him was violated when the court allowed the video of the complainant’s preliminary hearing testimony to be played at trial.

BB 250654:  The trial court erred in admitting the testimony of Witness Harris regarding alleged past acts for which Defendant was never formally charged, in violation of rule 404(b), and thereby denied Defendant his right to a fair trial.

BB 250672:  The evidence was insufficient to convict Defendant of armed robbery where the prosecutor conceded to the jury that Defendant lacked the requisite specific intent for armed robbery.

BB 250688:  The trial court violated Defendant’s Fifth Amendment right against compelled self-incrimination when it erroneously admitted a custodial confession which was elicited without Miranda rights, then was repeated after the delivery of those rights.

BB 250689:  Defendant was sentenced on the basis of inaccurate information and is entitled to resentencing where the Cobbs evaluation left the guidelines range open and where Prior Record Variable 5 was incorrectly scored. Counsel provided ineffective assistance by failing to object to the error.

BB 250763:  Defendant is entitled to a jury determination of any/all facts that expose him to a life without parole sentence, which is a departure from the default term of years sentence or, alternatively, MCL 769.25 is unconstitutional because it permits only judicial fact-finding.

BB 250763:  The court erred and violated Defendant’s constitutional right to due process by failing to properly apply the Miller sentencing factors, which resulted in the imposition of a sentence that violates the Eighth Amendment.

BB 250764:  Though defendant-appellant was an accomplice to unlawful imprisonment, she did not participate in aggravated physical abuse. Guidelines Offense Variable 7 must be rescored, and Defendant must be resentenced.

BB 250803:  The trial judge abused his discretion in finding the prosecution and police exercised due diligence in seeking to produce Witness Maclin to give live testimony at the trial, and in thus allowing the prosecution to admit her prior recorded testimony, as the prosecution was aware prior to trial that she likely would be a reluctant witness, and the efforts made to locate and produce her were too little and too late.

BB 248838:  The trial court violated appellant’s due process rights by permitting the prosecutor to introduce unfairly prejudicial evidence involving appellant allegedly making threats and sending a photograph of appellant holding a gun to another individual; furthermore, officer testimony about the conduct violated appellant’s due process right to confront and cross-examine the complainant from that incident and defense trial counsel was constitutionally ineffective in failing to object.

BB 248838:  Due process requires a new trial where the trial court had provided the deliberating jurors with copies of the information and the prosecutor’s witness list that were not admitted as evidence; especially where the information listed a count on which the trial court had directed a verdict of acquittal and where the list included a number of witnesses that the prosecutor did not actually call to testify.

BB 250006:  Defendant’s plea to the sexually delinquent person enhancement is invalid because the factual basis is inadequate under the sexual delinquency statute, violating Defendant’s state law and due process rights under the federal and state constitutions.

BB 250006:  The trial court failed to make a proper determination that Defendant would be sentenced subject to the enhanced sentence provisions in the sexual delinquency statutes in accord with statutory requirements violating Defendant’s state law and due process rights under the federal and state constitutions.

BB 250030:  The trial court failed in its duty to inquire into the reasons for defendant's dissatisfaction with trial counsel; defendant was constructively denied counsel during the pre-trial investigation period, prejudice is presumed, and reversal is required.

BB 248287:  Defendant should be sentenced to a term of years sentence, rather than to non-parolable life term, in consideration of the Miller factors.

BB 249603:  Due process requires plea withdrawal where defense trial counsel was constitutionally ineffective in failing to investigate and raise the defense of insanity or involuntary intoxication.
 

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