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Jul 2016
22

Lifetime Monitoring for All CSC 1 Defendants?

A recent decision by the Michigan Court of Appeals highlights the maddening inconsistency of judges when it comes to devising new punishments for those convicted of criminal sexual assault. The Court managed to follow the legislature and past precedent with respect to one part of a defendant’s sentence, while actively re-writing the law on another part.

Hawk Brantley was convicted by a jury in Oakland Circuit Court on one count of first-degree criminal sexual assault (MCL 750.520b). The trial judge, Shalina Kumar, sentenced Brantley to 12-40 years imprisonment followed by lifetime electronic monitoring. Brantley appealed his conviction and sentence to the Court of Appeals.

A three-judge panel affirmed the conviction. The panel split as to the sentence, however, returning the case to Judge Kumar for recalculation of the prison term while affirming the lifetime electronic monitoring requirement. The panel itself split on the monitoring issue. Judge Kathleen Jansesn wrote the panel opinion for herself and Judge William Whitbeck.

On the question of prison sentence, Judge Jansen agreed with Brantley that Judge Kumar “erroneously” calculated his prison sentence under the Michigan Sentencing Guidelines Manual. The Guidelines provide a formula to determine the permissible range of minimum and maximum prison sentences, taking into account a defendant’s prior criminal record, the nature of the offense he’s presently convicted of, and a host of “offense variables.” The trial judge assesses points against the defendant for each of these variables before calculating the final sentence.

In Brantley’s case, the trial judge assessed 10 points against him because he was in a “domestic relationship” with his alleged victim. In fact, Judge Jansen explained, the alleged victim was Brantley’s ex-girlfriend. They had “stopped dating at least two months prior to the assault.” Jansen added, “Although they remained friends, both were dating other people, they did not continue to have sex, and they did not live together.”

Since there was no “domestic relationship” at the time of the incident for which Brantley was prosecuted, the trial court should not have assessed the 10 points against him. This was important, because without those additional points, the maximum guideline prison sentence was 6.75 to 11.25 years, rather than the 12 to 40 years he received. Accordingly, Judge Jansen said Brantley was entitled to a new sentencing hearing.

While Judge Jansen and Judge Whitbeck strictly applied the statutory language with respect to Brantley’s prison sentence, the appeals judges took a more creative approach to reviewing the trial court’s mandate of lifetime electronic monitoring following Brantley’s eventual release. Michigan law states lifetime monitoring is mandatory when a criminal sexual assault is “committed by an individual 17 years or old or older against individual less than 13 years of age.” Brantley was over 17, but his victim was 21, well over the age of 13. Yet the trial court and the court of appeals panel majority agreed lifetime monitoring was mandatory.

To reach this conclusion, Judge Jansen had to “re-write[] the legislation to say something that it does not,” according to Judge Kirsten Frank Kelly, the third panel judge who dissented on this issue. Specifically, Judge Jansen claimed the Michigan legislature “intended” to apply the age requirements only in cases of second-degree criminal sexual assault, not first-degree assault, the offense Brantley was convicted of. “The majority would reform the statute to say what the majority believes it ought to say rather than what the legislature has clearly,” Judge Kelly said.

In fact, Judge Jansen’s panel decision contradicts several other panel decisions by the Court of Appeals on the same issue. Judge Kelly listed four such cases. In each of them, the Court held the “plain language” of the law requires lifetime electronic monitoring only where the defendant is over 17 and the victim is under 13.

Even Judge Jansen acknowledged these prior decisions, and that Brantley has a “compelling” argument to overturn the monitoring requirement in his case. But Judge Jansen said the prior decisions were ultimately irrelevant because they were “unpublished and nonbinding.”

Traditionally, appellate courts only formally “publish” a small percentage of their decisions. It’s entirely within the Court’s discretion to label an opinion “published” or “unpublished.” That doesn’t mean “unpublished” opinions are not available to the public. In the Internet age, just about every court decision is freely available. The Michigan Court of Appeals makes all “unpublished” decisions available through its website.

What “unpublished” really means is that the decisions are deemed non-binding on other courts, including the court that issued the opinion. Even though Brantley could cite numerous cases supporting his position regarding lifetime electronic monitoring, none of the cases were “published,” and therefore they weren’t binding precedent.

Unfortunately for Brantley and future defendants, Judge Jansen’s decision in his case was deemed “published” and therefore constitutes binding precedent on all Michigan trial courts, unless the Michigan Supreme Court decides to review and reverse the panel’s opinion or the state legislature intervenes. This means all persons convicted of CSC-1 will now be subject to lifetime electronic monitoring — even though the written text of the law does not say so.

As the law turns on the whims of judges, it’s important for anyone accused of a crime to have the most experienced criminal defense attorneys available. For two decades, Satawa Law have specialized in representing individuals accused of sex crimes. If you or a family member find yourself in a situation similar to Hawk Brantley, we strongly encourage you to contact us immediately.

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