May, 2017

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 are some of the questions presented in briefs added to our brief bank in the last few weeks. For confidentiality purposes, names of clients and witnesses have been removed.

BB 288060:  The sentence was a departure from the advisory guidelines range.  The result was a sentence that was disproportionate and unreasonable, in violation of US Const, Ams V, VIII, XIV; Const 1963, art 1, § 17.
BB 288076:  The trial court denied defendant his right to due process, a fair trial and to present defense when it denied an adjournment and then punished the defense for late notice of witnesses, including an expert witness.

BB 288076:  The trial court erred when it refused to allow any information derived from the CPS reports into evidence. It violated defendant’s constitutional rights to confrontation, to a fair trial and to present a defense through its misapplication of the Michigan Rules of Evidence.

BB 288125:  Defendant was denied her constitutional right to present a defense by the trial court’s erroneous ruling denying the requested instructions on defense of others.

BB 288153:  The trial court abused its discretion and denied defendant his right to due process by allowing the prosecutor to amend the information and by denying the request for a preliminary examination on the new charge.

BB 288128:  The trial court erred by changing the amount of costs and fees defendant must pay after he left the courtroom.

BB 288494:  The complete denial of counsel to defendant at his preliminary examination, a critical stage of the proceedings, is a structural error requiring automatic reversal.

BB 288496:  The trial court reversibly erred in overruling a defense objection to qualifying a witness as an expert and permitting her to render a “diagnosis” that defendant was a drug addict, where she has no medical degree, never interviewed any witnesses in the case, including defendant, and there was no scientific or objective evidence presented that defendant was abusing his adderall prescription, was addicted to  or was under the influence of any other controlled substances on the date of the incident. 

BB 288759:  The agreement to testify which was argued to be part of the plea agreement was actually outside the plea agreement; it was not delineated at the plea hearing as part of the agreement, accordingly, defendant is entitled to the five-year sentence that was placed on the record without any reference or contingency related to testifying at the murder trial.

BB 288759:  Defendant is entitled to resentencing because the trial court violated his right to allocution.

BB 289152:  Application of the amended version of MCL 769.1k in defendant’s case constitutes an unconstitutional tax in violation of Michigan Constitution of 1963, article 4, section 32, the requirement of a distinct statement and article 3, section 2, the separation of powers.

BB 289290:  Defendant-appellant was denied a fair trial when the trial court erroneously admitted unfairly prejudicial evidence (1) from defendant-appellant’s journal, and (2) of an unrelated assault. Trial counsel was ineffective for failing to object to or seek to limit evidence of the journal entry.

BB 289421:  Appellate counsel provided ineffective assistance of counsel when she failed to file a timely pleading after agreeing to do so, which deprived defendant of his direct appeal. This deprivation is a violation of due process and entitles defendant to appointment of substitute appellate counsel to continue his appeal.

BB 289577:  The trial court concluded that defendant is entitled to a new trial based on newly discovered evidence that undercut the complainant’s testimony.  The trial court properly applied the Cress standards.  This court should affirm.

BB 289561:  Defendant was denied due process, discovery, and his right of confrontation by the trial court’s ruling suppressing a previous CPS report and by the prosecutor’s failure to provide to the defense all relevant CPS reports, particularly the report by the CPS worker.

BB 289710:  Petitioner was denied due process of law and a fair trial by the trial court’s erroneous decision to deny his request for separate juries.

BB 289817:  Defendant was denied his right to effective assistance of counsel by his trial attorney’s failure to request the instruction provided in MCL 763.8 regarding the detective’s failure to record the interrogation.

BB 290038:  Defendant is entitled to resentencing because his minimum term was an unreasonable and disproportionate sentence.

BB 290224:  The state and federal rights to due process require correction of the judgment where this court sentenced defendant incorrectly.  It was improper to order the payment of court-ordered financial assessments as a condition of parole.

BB 290752:  Defendant is entitled to resentencing because the minimum term was unreasonable.  Accordingly, it was a violation of defendant’s constitutional right to a proportionate and individualized sentence, US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 290752:  Defendant is entitled to relief because the trial court did not have authority to order monetary obligations after his probation was violated; the order violates defendant’s constitutional rights to due process at sentencing, US Const, Ams V, XIV; Const 1963, art 1, § 17 and Michigan statute and case law prohibiting same.  These monies include probation oversight fees and a fine.

BB 290889:  Counsel was ineffective for not moving for a directed verdict where the prosecution failed to present evidence in its case-in-chief that defendant intended to steal items from the store to support the second-degree retail fraud charge and for putting on a defense case that supplied the missing evidence.

BB 290893:  Where defendant-appellant was arrested while standing in a checkout line waiting to pay, the prosecution’s evidence of retail fraud was insufficient to prove her guilt beyond a reasonable doubt. Counsel was ineffective for not moving for directed verdict before putting on a defense case that supplied the missing proof.
BB 291033:  Defendant’s adult sentences of 20-40 years on his murder and robbery convictions are invalid because it was based on Michigan’s automatic waiver statutes, which are unconstitutional after Miller v Alabama, 567 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012).

BB 291033:  Trial counsel was ineffective for failing to introduce psychological evaluation or information regarding the qualitative difference between adult and juvenile criminal conduct.  This violated defendant’s right to effective assistance of counsel, US Const, Ams VI, XIV; Const 1963, art 1, § 20.

BB 291285:  Agostoni does not require the court to apply Coleman’s harmless-error test. But if it does, Coleman’s harmless-error test is broader than the one suggested by the prosecution and the Court of Appeals—broad enough to take account of whether “defense counsel might have been able to do better at trial had he been present at the preliminary hearing.”

BB 290989:  Defendant was denied a fair trial by the improper joinder, the alleged witness intimidation would not have been admissible as a similar act, and it was not intrinsic in the charged offense.

BB 291313:  Recommendations and comments concerning defendant’s sentence amounted to
promises of leniency that went unfulfilled, and defendant is entitled to specific performance of the agreement that his current sentence not exceed a previous sentence.

BB 291405:  Defendant is entitled to resentencing because the minimum term was unreasonable.  Accordingly, it was a violation of defendant’s constitutional right to a proportionate and individualized sentence, US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 291508:  Defendant’s convictions should be reversed, and the matter set for a new trial, where the trial judge failed to disclose her close personal relationship with a major prosecution witness in denying a pre-trial motion that she recuse herself from presiding over the trial, as newly discovered evidence shows her relationship with that witness was significantly closer and more intimate than she acknowledged, and that she and the witness engaged in improper ex parte communications during the trial and prior to sentencing, which relationship and communications were in violation of the Michigan Code of Judicial Conduct.