If you are facing Michigan Criminal Sexual Conduct Charges (CSC for short) and you have one or more prior felony or attempted felony convictions (from Michigan or elsewhere), you could be charged as an Habitual Offender.
Habitual Offender status is a topic that gives rise to much confusion. Even many Attorneys do not fully understand it, and it can result in someone serving a significantly more lengthy sentence than they expected.
Michigan Habitual Offender status is controlled by MCL 769.10 - 769.13. Importantly, only prior felony or attempted felony convictions, not misdemeanors, can make someone an Habitual Offender. Prior misdemeanors may affect your Prior Record Variable score (PRV 5) in your Sentencing Guideline Range if they meet certain requirements, and if they satisfy the “10-year gap” rule.
Just as a misdemeanor cannot be used to make someone an Habitual Offender, nor can a conviction for a current charge they are facing (i.e. if someone is convicted of multiple charges or "Counts" in the same, current case). They have to be prior felony or attempted felony convictions, not convictions for charges that are part of the same new, current case the accused person is facing.
When a person is convicted of multiple "Counts" in their current case, they are not "priors," but may qualify as "subsequent or concurrent felony convictions" under PRV 5 of the Sentencing Guidelines. These can increase a person's Guidelines, but they are a completely separate issue from Habitual Offender status.
Many people also mistakenly believe that even though a person has a prior felony conviction, if enough time goes by, it "falls off" and can no longer be considered for the purposes of charging them as an Habitual Offender. For example, we often hear about a "10 year" rule. This is not true - the Michigan Habitual Offender statutes say nothing about this, and there is no "falling off," etc. It appears people may be confusing the "10 year gap" rule in scoring the PRVs for Sentencing Guidelines, mistakenly believing it is directly connected to Habitual Offender status.
Being convicted of Criminal Sexual Conduct as an Habitual Offender essentially does 2 things:
It increases the upper end of your Sentencing Guideline Range
It increases your maximum possible sentence
1) Increasing the upper end of your Sentencing Guideline Range.
Your Sentencing Guideline Range is actually the range of months from which the Judge determines what your overall sentence would be in the case of a County Jail sentence, and what your minimum sentence will be in the case of a Prison sentence under (in other words, the first opportunity for Parole).
If you receive a Prison sentence, under Michigan’s “indeterminate sentencing” scheme, it is the Parole Board, not the Judge, that determines how long you ultimately serve, subject to the maximum possible sentence set by law for each of the Michigan Degrees of Criminal Sexual Conduct. This is why we hear about Judges sentencing people convicted of Criminal Sexual Conduct to terms like “5 to 15 years,” rather than just “15 years,” etc.
- HABITUAL 2nd: If you have one prior felony conviction, the upper end of your Guideline Range is increased. For example, take a Third Degree Criminal Sexual Conduct with NO prior felony convictions. Their Guideline Range for their minimum sentence might be 36 – 60 months. This range is reflected on the appropriate Sentencing Grid for “Class B” offenses like Criminal Sexual Conduct 3rd Degree after properly scoring the Defendant’s Prior Record Variables (PRVs) and Offense Variables (OVs), and is different for each person and case.
- HABITUAL 3rd: But if that same person had just one prior felony conviction and is therefore convicted as an “Habitual Offender – Second Offense” (called “Habitual 2nd, or “Hab. 2nd,” for short), their Guideline Range stays the same on the “bottom-end” at 36 months, but the “upper-end” is increased to 75 months, and the Range is now 36 – 75 months.
- HABITUAL 3rd: Using the same example, if that person had two prior felony convictions, it makes them a “Habitual 3rd,” the upper-end is increased even more, and the Guideline Range is now 36 – 90 months.
- HABITUAL 4th: Finally, if we make it such that that person has three or more prior felonies, it makes them a “Habitual 4th,” and the Guideline Range is now 36 – 120 mos.
2) ncreasing your maximum possible sentence.
- Under MCL 769.10, if you have one prior felony or attempted felony conviction, making you an “Habitual 2nd”, and:
- If the charge you are currently facing is normally punishable by anything less than imprisonment for life for a first conviction, the possible maximum increases by 1 ½ times, or 150 %; and
- If the charge you are currently facing is normally punishable by up to imprisonment for life, the possible maximum remains at life.
- Under the next statutory section, MCL 769.11, if you have two prior felony or attempted felony convictions, making you an “Habitual 3rd”, and:
- If the charge you are currently facing is normally punishable by anything less than imprisonment for life for a first conviction, the possible maximum increases by 2 times, or 200 %; and
- If the charge you are currently facing is normally punishable by up to imprisonment for life, the possible maximum remains at life.
- Being charged as “Habitual 3rd” is also different from being charged as “Habitual 2nd” because the ability for the Court to give a Probation sentence is removed from the language of the Habitual 2nd statute, MCL 769.11.
- Under the next section, MCL 769.12, If you have three or more prior felony or attempted felony convictions, making you an “Habitual 4th”, and:
- If the charge you are currently facing is normally punishable by up to a maximum of less than 5 years, that possible maximum increases to 15 years;
- If the charge you are currently facing is normally punishable by up to a maximum of 5 years or more, or for life, that possible maximum increases to Life; and
- Unique to this "Hab 4" law is that, with a few limitations, if the charge you are facing is a "serious crime," (or conspiracy to commit a "serious crime"), and one or more of your prior felonies is a "listed prior felony" (or attempt) the Court "shall" sentence you to a minimum of 25 years.
- "Serious crime" includes First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct, and Assault With Intent to Commit Sexual Penetration (MCL 750.520g(1)).
- "Listed prior felony" includes First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct, Assault With Intent to Commit Sexual Penetration, and Assault With Intent to Commit Criminal Sexual Conduct in the Second Degree.
- Criminal Sexual Conduct 1st Degree (MCL 750.520b) is generally punishable "imprisonment for life or for any term of years." Therefore:
- If you are charged with CSC 1st Degree, you are already facing a possible life sentence, which is obviously the longest anyone can be sentenced to, regardless of any Habitual status. There are other implications for CSC First Degree, but they are beyond the scope of this overview.
- However, we recommend visiting our article "First Degree Criminal Sexual Conduct Penalty - Does LIFE Really Mean LIFE?"
- Criminal Sexual Conduct 2nd Degree (MCL 750.520c) and Criminal Sexual Conduct 3rd Degree (MCL 750.520d) are both punishable "by imprisonment for not more than 15 years.” Therefore:
- If you are charged with CSC 2nd Degree or CSC 3rd Degree and Habitual 2nd, your maximum possible sentence is 22 years, 6 months.
- If you are charged with CSC 2nd Degree or CSC 3rd Degree and Habitual 3rd, your maximum possible sentence is 30 years.
- If you are charged with CSC 2nd Degree or CSC 3rd Degree and Habitual 4th, your maximum possible sentence is life.
- Criminal Sexual Conduct 4th Degree (MCL 750.520e) is punishable "by imprisonment for not more than 2 years." Therefore:
- If you are charged with CSC 4th Degree and Habitual 2nd, your maximum possible sentence is 3 years.
- If you are charged with CSC 4th Degree and Habitual 3rd, your maximum possible sentence is 4 years.
- If you are charged with CSC 4th Degree and Habitual 4th, your maximum possible sentence is 15 years.
If the Prosecution intends to charge someone as an Habitual Offender, they must follow certain procedural rules. Those rules are contained in MCL 769.13. Among other requirements under this law, the Prosecution must file:
"...a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense."
This notice must specifically state what prior felony or attempted felony conviction(s) the Prosecution is relying on in seeking the Habitual Offender enhancement so that the accused has an opportunity to contest this information if it is wrong, such as in the case of mistaken identity for Defendant with a common name.
Often times, the Prosecution will file an Habitual Offender Notice, and then offer to dismiss it later as part of a plea negotiation process. In this sense, an Habitual Offender notice can act as a "bargaining chip" of sorts. Sometimes, the Prosecution will not bring an Habitual Offender notice when they initially file the charges even if they could, but instead will hold back tell the Defense that they will only add the Habitual if the Defendant does or does not do certain things, such as holding the Preliminary Examination.