April. 2018

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 issues 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 305176:  This matter should be remanded for resentencing where the trial judge failed to rule upon defendant’s objection that information relied upon by the trial judge was inaccurate, and the judge thereupon used that inaccurate information to determine the minimum and maximum sentences.

BB 305181:  Defendant was denied her Sixth Amendment right to effective assistance of counsel and her right to present a defense by counsel’s failure to timely file a notice of insanity and his failure to present a defense witness.

BB 305380:  Defendant’s Sixth Amendment right to effective assistance of counsel was violated when trial counsel failed to move to suppress the fruits of evidence obtained in violation of the Fourth Amendment as the police use of a cell phone simulator or other device to locate defendant’s phone was an invalid warrantless search.

BB 305413:  Defendant made a timely objection to having a different judge preside over his probation revocation hearing. His conviction for probation violation must be reversed and the case remanded to proceed in front of the sentencing judge.

BB 305483:  Defendant’s right to present a defense was undermined by the trial court’s refusal to allow him to explore whether the complainant was being threatened by drug dealers about a drug debt.

BB 305312:  Trial counsel was constitutionally ineffective for failing to move for severance. Defendant was unfairly prejudiced by the trial court’s error in joining his case with that of a co-defendant for trial before a single jury. Defendant is entitled to a new trial.

BB 305346:  The trial court denied defendant his right to due process, to a fair trial, and to present a defense when it denied an adjournment and then punished the defense for late notice of witnesses, including an expert witness.

BB 305391:  Defendant is entitled to resentencing because the judge violated his right to due process by sentencing him to the maximum allowed term for a felony drunk driving after previously serving as trial prosecutor for defendant’s previous drunk driving offenses.

BB 305747:  The sentence agreement, as reasonably interpreted, was violated and defendant should be granted specific performance of the agreement.

BB 305811:  The consideration of a risk assessment at sentencing violated defendant’s state and federal due process rights. This is because the assessment is not proper sentencing information.

BB 306299:  The stop and seizure of petitioner were not based on reasonable suspicion, and the evidence should have been suppressed; the error was plain and counsel was ineffective for failing to move to suppress the evidence; the Court of Appeals erred in denying the motion to remand for the trial court to decide, based on its determination of the credibility of the competing versions, whether the stop and seizure were not based on reasonable suspicion and the evidence should have been suppressed.

BB 306299:  Petitioner was deprived of due process and the right to compulsory process when the prosecution failed to notify the defense of the res gestae witnesses who were present during the incident; trial counsel was ineffective for failing to investigate, for failing to request assistance from police, the prosecutor, or an investigator, and in failing to request the appropriate instruction.

BB 306133:  The sentence in this matter should be vacated, and the matter remanded for resentencing, as the trial judge took into account considerations that were already factored into the guidelines range in deciding on the minimum sentence and did not find that the guidelines gave inadequate weight to those considerations; and,  in the alternative, the sentence was disproportionate to the facts and circumstances of the case, and/or the trial judge failed to state adequate reasons for the degree of the upward departure from the guidelines range.

BB 306343:  The plain language of MCL 769.13 requires that notice must be filed and served after the case has been bound over to the circuit court. Failure to file and serve it within 21 days is not subject to the harmless error statute. As there is no evidence of timely service on defendant, he cannot be sentenced as a habitual offender. As this issue goes to the very authority of the People to proceed, it is not waived by a plea.

BB 306457:  Defendant must be resentenced where the trial court did not state reasons for the departure or for the extent of the departure, and the minimum sentence, which is four and half times the high end of the guidelines, is an unreasonable and disproportionate sentence.

BB 306652:  Defendant is entitled to a resentencing because the trial court imposed a sentence that was an unreasonable and disproportionate upward departure without scoring the guidelines for the crime with the highest crime class. The trial court failed to explain the extent of the departure, and without having scored the guidelines, could not have properly done so.

BB 306672:  The trial judge, instead of limiting himself to considering only the prosecution’s proposed plea deal, improperly interfered in the plea negotiations by requiring defendant to enter guilty pleas in his other pending cases before the judge would accept any negotiated plea in this matter.

BB 307190:  Defendant was denied a fair trial by the court’s decision, over objection, to grant joinder.

BB 307190:  The numerous instances of prosecutorial misconduct denied defendant a fair trial and the cumulative effect was so unfairly prejudicial as to require reversal.

BB 307136:  The Court of Appeals was correct in holding that the prosecutor violated Brady v Maryland in suppressing the 2010 and 2013 Michigan CPS reports and that suppression of that valuable impeachment and exculpatory information denied defendant a fair trial.

BB306808:  Defendant is entitled to resentencing where he was not physically present in the courtroom during the resentencing hearing. Instead, he only appeared by video, in violation of the Sixth and Fourteenth Amendments of the United States Constitution, article 1, §§ 17 and 20 of the Michigan Constitution, MCL 768.3, MCR 6.425(e), and MCR 6.006.

BB 306876:  The victim’s parent and grandparent exceeded the scope of allocution during the victim impact portion of the sentencing proceeding, and instead, usurped the duties of the prosecutor. Additionally, the victim rights statements did not comport with statutory authority and applicable case law, and the result was that defendant was denied his right to constitutional due process at sentencing, US Const, Ams V, XIV; Const 1963, art 1, § 17.

BB 306952:  Defendant was denied a fair trial by the admission of abundant evidence about an unrelated and uncharged prior shooting incident, as well as evidence about a comment he supposedly made long after the charged incident occurred, all of which served the sole purpose of contaminating his trial with insinuations that he is a bad man with a propensity for violent and assautive behavior.

BB 307211: Defendant was denied his Sixth Amendment right to the effective assistance of counsel where his trial attorney did not object to testimony from a deputy that the prior, out-of-court statements allegedly made to her by witnesses were consistent, as that evidence was inadmissible under MRE 801(d)(1)(b), and highly prejudicial to defendant as it improperly bolstered a witness’s testimonial credibility.