There’s more to the process of felony sentencing than most people realize. What follows is a simplified explanation of what you will experience at your sentencing hearing in the event that you are convicted of a felony assault charge in Michigan.
You will be sentenced by the Judge on your Michigan felony assault charges if you either: 1) plead guilty or no contest to a Michigan felony assault charge without going to trial; or 2) are found guilty of a Michigan felony assault charge by the Judge or Jury after your trial. At the moment when either of these two events occurs, you are now a “convicted felon,” and will be required to visit an officer from the Probation Department (part of the Michigan Department of Corrections) on a predetermined date for a presentence investigation/interview. If you are not released on bond after your conviction, and remain detained in Jail immediately after your conviction, then you will be visited in the Jail by the Probation Officer instead. The purpose of the interview will be to gather information about you as a person, your lifestyle, your criminal history, and the facts of your crime.
The Probation Officer will take this information and prepare a written summary of this information called a Presentence Investigation Report (“PSI”). The Presentence Investigation Report will contain a recommendation for the Judge as to what your sentence should be (i.e. 2 years in state prison, followed by 3 years of probation, etc.) and why. As part of the Presentence Investigation Report, the Probation Officer will apply all of the information he or she has about you, your past, and your crime, and plug all of this information into the “Michigan Sentencing Guidelines.”
In some cases, if the Judge allows, your criminal defense attorney may ask the Judge to state in open Court what she would likely sentence you to if you plead guilty or no contest to a particular Michigan felony assault charge or a particular Michigan misdemeanor assault charge (as a reduction from your original charge). This statement by the Judge is called a “Cobbs Evaluation.” If the prosecutor agrees as well, it is called a “Cobbs Agreement.” At your sentencing, if the Judge changes her mind based on any new information in the PSI, then you have the right to withdraw your plea and go to trial. For example, if you are facing a Michigan assault with intent to murder charge, the Judge may state in open Court that if you plead guilty to a reduced Michigan felonious assault charge, then she intends to sentence you to 1 year in county jail. If the Judge later changes her mind and decides to give you a harsher sentence, you can withdraw the guilty plea and take your chances at trial in hopes of being found Not Guilty. Cobbs deals are an effective way to give you certainty in the uncertain world of facing Michigan felony assault charges.
Michigan employs “indeterminate sentencing” in felony cases, which means that when your information is “plugged into” the Michigan Sentencing Guidelines, the result will be a range of months for which Michigan law says you should be locked up. Any sentence longer than 1 year is a prison sentence. Any sentence less than 1 year is a jail sentence For example, your “Guidelines” may determine that you serve 0 to 6 months in jail, or 24 to 46 months in prison. If you have previous felony convictions, your “Habitual Offender” status will likely raise the high-end number significantly. The lower of the two numbers is your earliest release date, and the higher number is your latest release date. Your Judge can decide to lock you up for less or MORE than your “Guidelines” if she finds “substantial and compelling reasons for doing so.” However, every Michigan felony charge has a “statutory maximum,” which is an absolute limitation.
After your interview with the Probation Officer and before your sentencing hearing, your criminal defense attorney should meet with you to review the Presentence Investigation Report with you. Your attorney should also score your Guidelines and be prepared to argue to the Judge (if true) that the Probation Department has improperly scored your Guidelines and thereby subjected you to being locked up LONGER than the law allows (actually this should be done at the first possible opportunity in the case). This is VERY important! Your attorney (if they care about your future, and about you) should be gathering letters of support and writing a Sentencing Memorandum detailing why you should be granted leniency.
At your sentencing hearing, the Probation Officer will be sitting next to the Prosecuting Attorney at your sentencing hearing, and both of them may be permitted to make comments to the Judge. Usually, they ask for the HARSHEST sentence possible. It is up to your attorney to be prepared, as this is the moment that your future is on the line. You and your attorney will have the opportunity to correct mistakes in the Presentence Investigation Report, argue about the Guidelines (as THIS CAN MEAN THE DIFFERENCE BETWEEN COUNTY JAIL TIME AND PRISON TIME FOR YOU), and make any last comments. You will have the opportunity to speak on your own behalf and apologize (or “allocute”) if you wish.
The Michigan felony sentencing process is complex and must be done right. Only you will suffer if your criminal defense lawyer is incompetent. Perhaps there is no other moment in your felony assault case that will have you wondering whether you hired the right Michigan felony assault attorney.