I support the committee's position on all. Thanks!
N.
Nichole Jongsma Derks
Attorney
Foster Swift Collins & Smith PC
313 South Washington Square
Lansing, MI 48933
Phone: 517.371.8245
Fax: 517.367.7345
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From: Carrie Sharlow [mailto:CSHARLOW@mail.michbar.org]
Sent: Wednesday, November 09, 2011 9:03 AM
To: Frederick Neumark; Angela Povilaitis; Julie Powell; Donna McKneelen; Samuel Smith; Daniel Grano; Derks, Nichole; John Livesay; Stephen Gobbo; John Freeman; Kimberley Thompson; Hon. Hoort; Erika Julien; Kevin McKay; Gretchen Schlaff; Elizabeth Lyon;
James Heath; Richmond Riggs; Thomas Clement; Fred Bell; Ryan Berman; Haytham Faraj; Scott Sanford; Leonard Kaanta; John Jarema
Subject: RESPOND PLEASE: E-vote for Criminal Jurisprudence & Practice Committee
In the absence of a quorum at the November 3 Criminal Jurisprudence & Practice Committee Meeting, an e-vote on matters discussed is requested. The following motions were made and supported. All committee members are requested to indicate their vote as A, B or C on each item by Monday, November 14 at 4 PM.
Your voting choices are:
A. Support the Committee Position
B. Oppose the Committee Position
C. Abstain from Voting
1. SB 0464 (Schuitmaker) Criminal procedure; other; development of investigative protocols and abuse and neglect interview protocols for vulnerable adults; require by certain local agencies. Amends sec. 11b of 1939 PA 280 (MCL 400.11b).
MOTION: Support. The committee believed that the protocols, similar to that required in child abuse cases, was appropriate for vulnerable adults.
2.
2010-15 Proposed Amendment of Rule 6.005 of the Michigan Court Rules
This proposed amendment would clarify that trial counsel is required to make a defendantâs file available to an appellate lawyer, and would be required to retain the file for at least five years. This file was prompted by reports of appellate counsel having
difficulty obtaining trial materials (especially video or audio materials that were not transcribed as part of the transcript). The five-year period mirrors the five-year retention period contained in MRPC 1.15(b)(2).
MOTION: Support. There was some discussion as to whether this information is otherwise available through the prosecutorâs office, the court file, or whether there should be centralized location for this information. The consensus was that there may be information in the defendantâs trial attorneyâs file that would not be otherwise available, and it was important for appellate counsel to be able to access any and all information related to the defendantâs criminal case.
3. 2010-20
Proposed Amendment of Rule 6.302 of the Michigan Court Rules
This proposed amendment of MCR 6.302 would reinsert a requirement that a court advise a defendant who pleads guilty that the defendantâs maximum possible prison sentence may be longer than the maximum possible prison sentence for a particular offense if
the defendant falls within the parameters of the habitual offender statute (MCL 769.13). The statute allows a prosecutor to notify the defendant that the prosecutor intends to seek an enhanced sentence after the defendant pleads guilty. Thus, the sentence
range given by the court may not take into account any sentence enhancement at the plea hearing.
MOTION: Support and Amend.
The Committee originally voted to support 2010-20 and the proposed amendment of Rule 6.302 of the Michigan Court Rules. An amended motion was then made to suggest language as an alternative to the language proposed by the Supreme Court. The alternative is posted below.
Support the revised MCR 6.302(B)(2)
After further discussion the committee believed that language is necessary to advise a defendant of the possible consequences if a habitual offender notice is filed within the 21 days allowed by statute after arraignment. The concern was, however, the wording of the proposed amendment to the Court Rule; the effect it may have on the plea process, the subsequent filing of a habitual offender notice, and the defendantâs ability to withdraw oneâs plea. Advising a defendant, when appropriate, that if the prosecutor post plea files a habitual offender notice your possible maximum sentence may be increased under the Habitual Offender Act is an actual rendition of the law and avoids any undue speculation.
The Committee recommends the following amended language:
Rule 6.302 Pleas of Guilty and Nolo Contendere
(B) An understanding Plea. Speaking directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that each defendant understands:
(1) [Unchanged.]
(2)
the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law; further, the court shall advise the defendant that if the defendant
has been previously convicted of a felony, the defendant may be charged as an habitual offender and the maximum possible sentence may be increased. If a plea of guilty or no contest takes place before or within the time allowed for the filing of
a habitual offender notice, the court shall advise a defendant that, if the prosecutor files a habitual offender notice within the time allowed by law, your possible maximum sentence may be increased under the Habitual Offender Act.
Use of this amendment to the Court Rule would only be necessary if the on record recitation did not otherwise make reference as part of the plea to the Habitual Offender Act and if the plea took place before or during the time allowed by statute for the filing of a habitual offender notice.
Carrie A. Sharlow
Administrative Assistant, Governmental Relations
State Bar of Michigan
Michael Franck Building
306 Townsend Street
Lansing, MI 48933
P: 517-346-6317
F: 517-482-6248
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