Victory for the Fourth Amendment in Court

Victory for the Fourth Amendment in Court

Oct 31, 2023 | Blog, Victories Project

The fourth Amendment lives to see another day.

Komorn law is pleased to report another victory for a client entangled in the justice system.

After a lengthy evidentiary hearing, we heard the magic words stated from the Court,

For these reasons I am going to grant the defendants motion to suppress the evidence seized (our client’s blood) because probable cause did not exist to arrest the driver.

Background

This case was initiated back in January of 2021. Originally charged as a driving under the influence of cannabis, as we see in so many cases, the driver admits to smoking cannabis at some point prior to driving.

After performing some field sobriety tests most people could not pass sober on a warm windless day… you have an arrest. This leads to a blood draw and some charges alleging you were intoxicated while operating a motor vehicle.

Delay of Game

This case was delayed, mostly because in 2022, the Michigan State Police Forensic Science Division (MSP/FSD) announced that it was halting THC testing because the toxicology test used a reagent in the preparation of the sample that converted CBD to THC.

Over 3,000 cases may have been impacted by inaccuracy of Michigan State Police marijuana testing

The MSP/FSD then shut itself down, to establish a new THC testing platform. Allegedly, to avoid a backlog during the offline period beginning in August, the FSD outsourced some (700) samples to a private toxicology lab.

Upcharged

It was at that time the State amended the charges in this case from a driving under the influence of marijuana to Operating Under the influence of a combination of Alcohol and a controlled substance (marijuana).

It should be noted that our clients blood alcohol level was below the legal limit, however for reasons that are not supported by science, logic or law, the States theory of criminality was a below the legal limit alcohol level and the presence of THC in the blood.

Officer Report

The story of this case began where it should have ended, at the traffic stop. The arresting officer claimed he observed our client driving with expired tags.

When the officer got behind our client’s vehicle, my client was aware that his tags were expired and upon seeing the police vehicle driving behind him, pulled into a driveway he was familiar with and had done work at that house before.

Upon observing this behavior, the officer became extremely suspicious and after passing by the driveway our client had pulled into, circled back around and waited for our client to depart from the driveway he had pulled into.

Sure enough when our client began to drive again, the office caught back up to our client, followed him for approximately 3/4 of a mile before turning on his sirens and pulling our client over.

Upon approaching the driver, screaming at my client, the officer demanded to know why the driver was “ trying to short block him”.

What do you have in the car, where are you going, why are you being so suspicious and what is wrong with you. Our client tried to explain, his other vehicle wouldn’t start that night, and he was forced to use this vehicle he was driving despite knowing it did not have current registration of the plates.

The officer did not believe our client, claimed he smelled marijuana in the car, and ordered my client out to perform the field sobriety tests.

The Evidentary Hearing

The issue we raised was at the evidentiary hearing, was that probable cause to arrest under these circumstances was not supported by the evidence.

In addition to the police reports the in car video and body cam evidence, was a treasure trove of exculpatory evidence, which supported our position.

After a very thorough cross examination of the arresting officer, including but not limited his training in Field sobriety testing and his substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration (NHTSA).

“Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.”MCL 257.62a.

The Court agreed with our position and suppressed the evidence that was seized based upon the illegal arrest and violation of my clients 4th amendment right to be free from illegal searches and seizures.

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When You Stand Up For Your Rights

A big shout out goes to our client for having the courage to fight the state on this silly over charged and baseless crime.

When you take a stand and fight for your rights… the cost to hire a lawyer can end up to be less than what the system will takes from you.

Additionally, the Judge in our case was patient, objective, composed and impartial exhibiting some of the best qualities and demeanor from the bench in recent memory.

A Reminder

Limit chit chat and interacting with a police officer during a traffic stop. Admitting to smoking cannabis, although legal, in these situations almost always creates suspicion for officers, that will surely result in the driver being asked to step out of the car so the officer can determined if you are safe to drive.

A driver is not required to participate in providing evidence to the police that will help convict that driver. Participating in the field sobriety testing is not required, and most people should not presume that independent of their self perceived athleticism, that they will satisfy the officers concerns by taking these tests. It is ok to say, my lawyer has told me not to take these tests.

In this case, there was literally no bad driving or even the suggestion that my client was driving less prudent than the normal driver. This case was made by, manufactured by the admission of “ smoking cannabis” and not satisfying the arresting officers requested tests.

It was a good day and the fourth Amendment is still a thing for now.

Did You Know

Michigan State Police Legal Updates

MSP Legal Update No. 153 (01/2023)

  • Search & Seizure: The smell of marihuana, standing alone, no longer constitutes probable cause to search for that substance
  • Vehicle Code: Violation for impeding traffic requires evidence the accused’s conduct actually affected the normal flow of traffic.

Legal Update No. 153 (01/2023)

 

MSP Legal Update No. 150 (01/2022)

  • Vehicle Code: Persons under the age of 21 may be prosecuted for operating a motor vehicle with the presence of marihuana in their system
  • Criminal Law: Ethnic intimidation based on gender includes harassing or intimidating another person because of the actual or perceived gender of that person.

Legal Update No. 150 (01/2022)

 

Legal Update No. 148 (09/2021)

Statutes: Code of Criminal Procedure amended to prohibit issuance of appearance tickets to a person arrested for an “operating while intoxicated” offense; Juvenile Law: Individuals who are 17 years of age to be treated as juveniles in criminal proceedings rather than automatically being treated as adults; Did You Know: The mere presence of an unidentified cocaine metabolite is insufficient to prove operation of a vehicle with the presence of “any amount” of cocaine in the body.

Legal Update No. 148 (09/2021)

 

Legal Update No. 147 (03/2021)

Statutes: The Code of Criminal Procedure amended to require persons arrested for certain misdemeanor and ordinance violations not exceeding 1-year in jail to be released from custody upon issuance and service of an appearance ticket; Vehicle Code: The Michigan Vehicle Code amended to eliminate the requirement to provide an audible signal when overtaking another vehicle.

Legal Update No. 147 (03/2021)

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Marijuana, Mushrooms, a Gun and a Bad Search – Case Dismissed

Marijuana, Mushrooms, a Gun and a Bad Search – Case Dismissed

Jun 9, 2023 | Blog, Recent Victories

Summary

  1. Client resident searched without warrant
  2. Client property seized
  3. Client charged
  4. We filed motion for bad search
  5. Judge agreed
  6. Prosecutor filed motion against our motion
  7. Judge disagreed
  8. Case dismissed
  9. That’s why you hire Komorn Law

More Details

The court ruled to suppress the evidence (namely an alleged handgun, suspected marihuana, suspected psilocybin mushrooms) due to the fact that the People failed to rebut the burden that the warrantless search was unconstitutional and/or failed to provide evidence that an exception to the Search Warrant requirement existed at the time of the search and seizure.

The People filed a Motion for Reconsideration of Order Granting Defendant’s Motion to Suppress Evidence.

A motion for reconsideration must demonstrate a “palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.” Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730, 733; 405 NW2d 151, 153 (1987).

The People presented evidence from the transcript to again attempt to rebut the burden regarding the warrantless search being unconstitutional and/or provide evidence that an exception to the Search Warrant requirement existed.

The People sited to the testimony of Deputy Tath who stated the Defendant consented, and listed the items that were seized – “I seized suspected marijuana, suspected psilocybin mushrooms, and I believe a handgun.” The issue with this testimony being the People’s evidence does not present a timeline for when consent was given.

The People have the burden to establish Defendant’s consent to search before any evidence could lawfully be seized as an exception to the warrant requirement, the failure by the People to establish that specific timeline was fatal to the People’s argument.

Therefore, the Prosecution has not convinced the Court that the prior Order of the Court was palpable error.

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This website and/or post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas, private stuff, work related information, non work related information and general internet BS. Therefore…Before you believe anything on the internet regarding anything and everything – do your research on “Official Government and State Sites”, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain. You’re on the internet.

Victory – Case Dismissed – 3rd OWI – High BAC

Victory – Case Dismissed – 3rd OWI – High BAC

Apr 14, 2023 | Blog, Recent Victories

This one was an epic battle, that started right before the shut down in March of 2020 and involved the following:

Preliminary Exam 1.

After filing several motions to be heard at the preliminary exam, the police failed to appear and the charges were dismissed.

The charges were then re-issued.

At the arraignment on the re-issued charges and in response to my arguments  for personal bond, the court said, “ Counsel that may be true that your client has not had an alcohol related driving offense for over 12 years but what about all the times he drove drunk and wasn’t arrested? Bond is set at 5,000 cash.

Motion to Recuse

Based upon the aforementioned statements by the Court, I was forced to move to Disqualify the Court for bias.

The Court disagreed.

Appeal to Circuit Court ( Regarding the Arraignment and Setting of Bond).

We appealed the District Court Judges Ruling at the arraignment , setting of Bond and its denial of my motion to disqualify the Court for bias.

The Circuit Court ( acting as the Appellate Court) reversed the District Court’s  denial of my Motion to Disqualify,  reset the bond as a personal bond and remanded to the District Court for a Preliminary  Exam to be heard by a different Judge.

Preliminary Exam 2

We refilled our motions in the District Court and appeared for the exam.

The facts involved a vehicle reported to be stalled out, in a church parking lot, and the police were called for a welfare check (although what unfolded seemed to have little to do with the welfare of my client).

Described as standing outside of the vehicle at the time the police arrived for the welfare check, the vehicle was inoperable, not working, stalled out, the engine was not on or working and no keys were found at the scene.

Allegedly, wine bottles were found in the back of the inoperable vehicle, allegedly my client failed the standard and non standardized field sobriety test. He was subsequently arrested, and taken to the stations for Breath Testing.

Allegedly my client refused or technically refused to submit a breath sample, and the arresting officer acting as the affiant, sought out and obtained a search warrant for the blood of my client. The Blood results allegedly were above the legal limit of .08 g/ml and above the High BAC threshold of 0.17 per milliliters of Blood.

During the testimony of the arresting officer, (and not mentioned in any of the police reports) for the first time it was revealed that allegedly my client was observed about an hour prior to the “welfare check” in the driver seat behind the wheel of the vehicle (he was later observed standing near at the time of the welfare check).

This revelation by the officer also included the following: I observed your client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.

Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road.”

Other highlights from the exam included testimony surrounding the affidavit and search warrant for the blood.

After some hemming and hawing, the court found probable cause existed to bind my client over for Trial.

The Circuit Court.

We filed additional motions in the circuit court. As it goes sometimes, despite perfecting service through the on-line filing system, providing courtesy copies to the Court, we appeared three times, and each time a different prosecutor appeared for the State.

Each time the new assistant prosecutor appeared, they knew nothing about the motions, didn’t receive them, are not connected to the on line filing system, and didn’t even know that the hearing and motions were scheduled.

The Wheels of Justice Grind Slow

Today we finally got an opportunity to argue our motions, or at least one of them. The Court it turned out was in the middle of a jury trial but was able to get us in during the lunch break for some limited arguing.

All involved ( The Judge, the assistant Prosecutor) commented that the facts made this an interesting case. Generally,  the essential elements or issues that are needed to prove a Drunk driving case/ Operating While Intoxicated case, are that the person was intoxicated at the time they were operating the motor vehicle.(1)

if a person pulls over after driving, and then consumes alcohol while in their vehicle without any intention of further driving, even while stationary in a parking lot, would be ill advised and very likely to result in an arrest for Operating While Intoxicated, despite not actually driving, because the driver would be in “actual physical control of the vehicle.”

Likewise, pulling over because a driver feels intoxicated with the intention of not driving but instead sleeping it off, would also likely result in an arrest, should police contact occur.

Other States allow for a driver who thinks they may be impaired to pull over, rest and even sleep, without being charged with “operating” while intoxicated.

In Michigan the word “operating” has been interpreted broadly is defined as driving or having actual physical control of the “vehicle.”

The cases and jurisprudence in Michigan that have interpreted these rules are generally not favorable for the accused/ driver.

The reason why this case was interesting, were mostly focused on the legal definitions of “Motor Vehicle” and Vehicle” ( See below).  (2)

The Court Decision

Today the Court heard arguments on these issues. The Court ultimately agreed with me, that in fact the testimony at the preliminary exam of the arresting officer who had “observed my client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.

(Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road)” had described a situation that did not include evidence of “a motor vehicle” or a “vehicle” as those terms are defined within Michigan Law.

The Court found the District Court Judge had erred in making the decision to bind over my client for trial, and that probable cause did not exist or was not at the preliminary exam, to wit: The State had failed to prove that probable cause existed that my client was “operating a moving vehicle/ vehicle” while intoxicated, and dismissed all of the charges.

THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927

777.1 Definitions.

Sec. 1. As used in this chapter:

(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL 257.79. (below)

MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949

Sec. 79.

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.(4)

257.33 “Motor vehicle” defined.

Sec. 33.

  “Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act.

Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability.

Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577.

Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage.

Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.

FOOTNOTES

Footnote –(1)

Mi Crim Jury Instructions 15.1, 15.1a, 15.2, 15.3

Footnote –(2) 

777.1 Definitions.

THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927

Sec. 1. As used in this chapter:

(a) “Aircraft” means that term as defined in section 2 of the aeronautics code of the state of Michigan, 1945 PA 327, MCL 259.2.

(b) “Departure” means that term as defined in section 31 of chapter IX.

(c) “Homicide” means any crime in which the death of a human being is an element of that crime.

(d) “Intermediate sanction” means that term as defined in section 31 of chapter IX.

(e) “ORV” means that term as defined in section 81101 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.81101.

(f) “Snowmobile” means that term as defined in section 82101 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.82101.

(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL

257.79.

(h) “Vessel” means that term as defined in section 80104 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.80104.

History: Add. 1998, Act 317, Eff. Dec. 15, 1998;Am. 2000, Act 279, Eff. Oct. 1, 2000;Am. 2002, Act 34, Eff. May 15, 2002.

Footnote -(3)

MICHIGAN VEHICLE CODE (EXCERPT)Act 300 of 1949

257.33 “Motor vehicle” defined.

Sec. 33.

  “Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act. Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability. Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577. Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage. Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.

History: 1949, Act 300, Eff. Sept. 23, 1949 ;– Am. 1993, Act 300, Eff. Jan. 1, 1994 ;– Am. 1995, Act 140, Imd. Eff. July 10, 1995 ;– Am. 1997, Act 56, Imd. Eff. July 1, 1997 ;– Am. 2002, Act 494, Imd. Eff. July 3, 2002 ;– Am. 2013, Act 36, Imd. Eff. May 21, 2013 ;– Am. 2015, Act 127, Imd. Eff. July 15, 2015 ;– Am. 2017, Act 139, Eff. Jan. 28, 2018 ;– Am. 2018, Act 204, Eff. Sept. 18, 2018 ;– Am. 2018, Act 391, Eff. Mar. 19, 2019

Footnote –(4)

MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949

Sec. 79. “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.

History: 1949, Act 300, Eff. Sept. 23, 1949;Am. 1976, Act 439, Imd. Eff. Jan. 13, 1977;Am. 1978, Act 568, Eff. Jan. 6, 1979; Am. 1992, Act 134, Eff. Oct. 1, 1992.

End of Footnotes

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DISCLAIMER
This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas, private stuff and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on “Official Government and State Sites”, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain. You’re on the internet.

Cannabis Possession – From a Possible Life Sentence to 2 Years Probation

Cannabis Possession – From a Possible Life Sentence to 2 Years Probation

Mar 20, 2023 | Blog, Recent Victories

We defended our client Michael Thue who was facing a possible life sentence for the following charges in Grand Traverse Court.

1. CONTROL SUBSTANCEDEL/MANU 5-45 KILGRAM
2.  POSSESSION SCHEDULE 5 AND LSD 02/14/2023
3.  HABITUAL OFFEN-SUP WAR/4 CONV 02/14/2023
4.  CONT SUBSTANCE-POSS OF MARIJUANA 02/14/2023

Case Summary

After a SWAT style raid on Thue’s place by law enforcement where they burned his plants and removed several other items Thue retained Komorn Law and lead trial Attorney Michael Komorn jumped in the trench next to his client and started gathering information to aggressively defend him as he does for all his clients.

This was Thue’s 4th strike which means he could have been sentenced under the Michigan Habitual Offenders Sentencing Laws.

This could have been a life sentence (more detail below).

The Judge, who was familiar with Thue, eluded to the fact that Thue being charged with a life defense and now reduced to a misdemeanor indicates the laws in this area are a mess. The judge also said that smaller cannabis entities are being put out of business by larger corporations and couldn’t believe he had to pass sentence stating he was protecting the revenues of the State of Michigan. The judge insisted that Thue had to plea to something in order to be a conviction which ended up being growing more plants than allowed.

The conditions of the 2 year probation sentence were to comply with MMMA laws and MRTMA laws plus costs $800.

State or Federal Cases

CHARGED WITH DUI OR A CANNABIS RELATED CRIME?

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Later that same year…
Court rules that Illegal cannabis grow of any size just a misdemeanor in Michigan

Michigan Habitual Offenders

Criminal Proceedings Benchbook, Vol. 2 (michigan.gov)

4.4 Maximum Sentences for Habitual Offenders

“‘A trial court, when sentencing a defendant as an habitual offender, must exercise its discretion in setting the maximum sentence, that is, it is not required by law to increase the maximum sentence.’” People v Bonilla-Machado, 489 Mich 412, 429-430 (2011), quoting People v Turski, 436 Mich 878, 878 (1990) (remand was appropriate where the trial court “erroneously asserted that it was bound by law to enhance the maximum sentences”).

A.Second Habitual Offender Status (HO2)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a second habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of a felony or attempted felony in Michigan or in another state if the violation would have been a felony violation in Michigan. See MCL 769.10(1). A second habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.10 and MCL 771.1:

•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may place the person on probation[1] or sentence the person to imprisonment for a maximum term that is not more than 1-1/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.” MCL 769.10(1)(a).

•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may place the person on probation[2] or sentence the person to imprisonment for life or for a lesser term.” MCL 769.10(1)(b).

•If the subsequent felony is a major controlled substance offense,3 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.10(1)(c).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.10(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

B.Third Habitual Offender Status (HO3)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a third habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of two or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A third habitual offender is subject to the following penalties, except as otherwise provided in MCL 769.11 and MCL 771.1:

•If the subsequent felony is punishable on first conviction by a term less than life imprisonment, the court “may sentence the person to imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.” MCL 769.11(1)(a).

•If the subsequent felony is punishable on first conviction by life imprisonment, the court “may sentence the person to imprisonment for life or for a lesser term.” MCL 769.11(1)(b).

•If the subsequent felony is a major controlled substance offense,4 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.11(1)(c).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.11(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

C.Fourth Habitual Offender Status (HO4)

This discussion presumes the prosecutor is seeking an enhanced sentence under MCL 769.13. See Section 4.2 for more information on the prosecutor’s right to seek an enhanced sentence.

A person is a fourth habitual offender if he or she is convicted of a felony or attempted felony and has been previously convicted of any combination of three or more felonies or attempted felonies in Michigan or in another state if the violations would have been felony violations in Michigan. A fourth habitual offender is subject to the following penalties:

•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for life or for a lesser term.” MCL 769.12(1)(b).

•“If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term that is less than 5 years, the court, except as otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for a maximum term of not more than 15 years.” MCL 769.12(1)(c).

•If the subsequent felony is a major controlled substance offense,5 the court must sentence the person as provided by MCL 333.7401 to MCL 333.7461. MCL 769.12(1)(d).

In addition to the general maximum sentence enhancement provisions set out in MCL 769.12 for fourth habitual offenders, MCL 769.12(1)(a) provides for a mandatory minimum sentence of 25 years’ imprisonment for certain violent offenders. The sentencing court must impose a sentence of imprisonment for not less than 25 years if:

•the offender has been convicted of three or more prior felonies or felony attempts, including at least one listed prior felony,6 and

•the subsequent felony that the offender is convicted of committing or conspiring to commit is a serious crime. MCL 769.12(1)(a).

For purposes of MCL 769.12(1)(a) only, “[n]ot more than [one] conviction arising out of the same transaction shall be considered a prior felony conviction[.]” MCL 769.12(1)(a).

The 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) does not constitute cruel or unusual punishment under the Michigan Constitution, Const 1963, art 1, § 16.7 People v Burkett, 337 Mich App 631, 635-642 (2021) (rejecting what it characterized as a facial challenge to MCL 769.12(1)(a)). “Under the Michigan Constitution, the prohibition against cruel or unusual punishment includes a prohibition on grossly disproportionate sentences.” Burkett, 337 Mich App at 636 (cleaned up). “Legislatively mandated sentences are presumptively proportional and presumptively valid,” and “to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate.” Id. at 637 (quotation marks and citations omitted). A three-part test is used to determine whether a punishment is cruel or unusual: “(1) the severity of the sentence imposed and the gravity of the offense, (2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a comparison between Michigan’s penalty and penalties imposed for the same offense in other states.” Id. at 636-637 (quotation marks and citation omitted). “Consideration of the three-part test leads to the conclusion that the minimum sentence mandated by MCL 769.12(1)(a) is neither cruel nor unusual” because the statute “only applies to individuals convicted of a serious felony who have previously been convicted of three or more felonies, at least one of which is a listed prior felony,” and it “reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.” Burkett, 337 Mich App at 642 (quotation marks and citation omitted).

Any term of years sentence must be indeterminate, meaning it must have a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.12(2). The maximum sentence must not be “less than the maximum term for a first conviction.” Id.

1    See Section 9.2 for more information about probation.

2    See Section 9.2 for more information about probation.

3    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

4    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

5    Sentences for subsequent major controlled substance offenses are discussed in Section 4.5.

6   Only convictions under the specific Michigan statutes listed in MCL 769.12(6)(a) constitute listed prior felonies for purposes of MCL 769.12(1)(a); a conviction in another jurisdiction for an offense comparable to a listed offense does not constitute a listed prior felony for purposes of the mandatory 25-year minimum sentence under MCL 769.12(1)(a). People v Pointer-Bey, 321 Mich App 609, 622-623 (2017) (noting that, unlike the general rule of MCL 769.12(1) that comparable out-of-state convictions are considered when determining fourth-habitual offender status, “MCL 769.12(6)(a) contains no indication that convictions under comparable statutes from other jurisdictions should be considered ‘listed prior felonies’ for purposes of MCL 769.12(1)(a),” and holding that the defendant’s conviction under a federal statute comparable to a Michigan statute listed in MCL 769.12(6)(a) could not be considered for purposes of MCL 769.12(1)(a)).

7   “If a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution.” People v Burkett, 337 Mich App 631, 636 (2021) (quotation marks and citation omitted).