HOUSE BILL No. 4137

 

February 4, 2015, Introduced by Reps. Howrylak, Heise, Kelly, Forlini, Webber and Pagel and referred to the Committee on Criminal Justice.

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

by amending sections 2, 4, and 14 of chapter XI and sections 2, 3,

 

and 5 of chapter XIA (MCL 771.2, 771.4, 771.14, 771A.2, 771A.3, and

 

771A.5), section 2 of chapter XI as amended by 2010 PA 351, section

 

4 of chapter XI as amended by 1998 PA 520, section 14 of chapter XI

 

as amended by 2012 PA 27, and sections 2, 3, and 5 of chapter XIA

 

as added by 2012 PA 616.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER XI

 

     Sec. 2. (1) Except as provided in section 2a of this chapter,

 

if the defendant is convicted for an offense that is not a felony,

 

the probation period shall not exceed 2 years. Except as provided


 

in section 2a of this chapter, if the defendant is convicted of a

 

felony, the probation period shall not exceed 5 years.the

 

following, as applicable:

 

     (a) Five years if the applicable prior record variable score

 

calculated under part 5 of chapter XVII is 25 or greater or if

 

subdivision (b) is otherwise inapplicable.

 

     (b) Two years if the applicable prior record variable score

 

calculated under part 5 of chapter XVII is less than 25 and neither

 

of the following apply:

 

     (i) The court determines that a period of up to 5 years is

 

necessary because of victim restitution ordered.

 

     (ii) The conviction is for any of the following:

 

     (A) A felony under chapter LXXVI of the Michigan penal code,

 

1931 PA 328, MCL 750.520a to 750.520n.

 

     (B) A felony under section 411h, 411i, or 411s of the Michigan

 

penal code, 1931 PA 328, MCL 750.411h, 750.411i, and 750.411s.

 

     (C) A felony as to which the victim and the defendant had a

 

relationship described in section 81(2) of the Michigan penal code,

 

1931 PA 328, MCL 750.81.

 

     (2) The court shall, by order , to be filed or entered in the

 

cause case as the court may direct directs by general rule or in

 

each case, fix and determine the period and conditions of

 

probation. The order is part of the record in the cause. case. The

 

court may amend the order in form or substance at any time.

 

     (3) A defendant who was placed on probation under section 1(4)

 

of this chapter as it existed before March 1, 2003 for an offense

 

committed before March 1, 2003 is subject to the conditions of


 

probation specified in section 3 of this chapter, including payment

 

of a probation supervision fee as prescribed in section 3c of this

 

chapter, and to revocation for violation of these conditions, but

 

the probation period shall not be reduced other than by a

 

revocation that results in imprisonment or as otherwise provided by

 

law.

 

     (4) If an individual is placed on probation for a listed

 

offense enumerated as that term is defined in section 2 of the sex

 

offenders registration act, 1994 PA 295, MCL 28.722, the

 

individual's probation officer shall register the individual or

 

accept the individual's registration as provided in that act.

 

     (5) Subsection (1) does not apply to a juvenile placed on

 

probation and committed under section 1(3) or (4) of chapter IX to

 

an institution or agency described in the youth rehabilitation

 

services act, 1974 PA 150, MCL 803.301 to 803.309.

 

     Sec. 4. (1) It is the intent of the legislature that the

 

granting of probation is a matter of grace conferring no vested

 

right to its continuance. purposes of probation are to hold

 

offenders accountable for making restitution to ensure compliance

 

with the court's judgment, to effectively rehabilitate offenders by

 

directing them to specialized treatment or education programs, and

 

to protect the public safety. If during the a probation period the

 

sentencing court determines is notified that the probationer is

 

likely again to engage in an offensive or criminal course of

 

conduct or that the public good requires revocation of probation,

 

the court may revoke probation. All probation orders are revocable

 

in any manner the court that imposed probation considers applicable


 

either for has committed a violation or attempted violation of a

 

probation condition, or for any other type of antisocial conduct or

 

action on the probationer's part for which the court determines

 

that revocation is proper in the public interest. Hearings the

 

court may hold a hearing on sanction or revocation. The hearing on

 

the sanction or revocation shall be summary and informal and is not

 

subject to the rules of evidence or of pleadings applicable in

 

criminal trials, and the court shall conduct the hearing in a

 

summary and informal manner. In its probation order or by general

 

rule, the court may provide for the apprehension, detention, and

 

confinement of a probationer accused of violating a probation

 

condition or conduct inconsistent with the public good. The method

 

of hearing and presentation of charges are within the court's

 

discretion, except that the probationer is entitled to a written

 

copy of the charges constituting the claim that he or she violated

 

probation and to a probation sanction or revocation hearing. The

 

court may investigate and enter a disposition of the probationer as

 

the court determines best serves the public interest, . subject to

 

all of the following:

 

     (a) If the court determines that the probationer has committed

 

or attempted a first noncompliance violation, the court shall

 

sanction the probationer to 1 or more nonconfinement responses.

 

     (b) If the court determines that the probationer has committed

 

or attempted a second through fifth noncompliance violation, the

 

court may sanction the probationer by confinement in the county

 

jail for up to 3 days.

 

     (c) If the court determines that the probationer has committed


 

or attempted a risk violation, the court may sanction the

 

probationer by confinement in the county jail for up to 30 days.

 

     (d) If a the court determines that the probationer has

 

committed or attempted a third risk violation or a major risk

 

violation, the court may revoke the probation order is revoked, the

 

court may and sentence the probationer in the same manner and to

 

the same penalty as the court might have done if the probation

 

order had never been made. Time spent in confinement under this

 

section shall be credited toward the sentence imposed, and if the

 

probationer is on probation for multiple judgments, the credit

 

shall be applied to each sentence.

 

     (2) This section does not apply to a juvenile placed on

 

probation and committed under section 1(3) or (4) of chapter IX to

 

an institution or agency described in the youth rehabilitation

 

services act, 1974 PA 150, MCL 803.301 to 803.309.

 

     (3) All violations alleged at a single hearing on sanction or

 

revocation constitute 1 violation for purposes of determining the

 

sanction.

 

     (4) As used in this section, "major risk violation",

 

"noncompliance violation", "nonconfinement violation",

 

"nonconfinement response", and "risk violation" mean those terms as

 

defined in section 2 of chapter XIA.

 

     Sec. 14. (1) Before the court sentences a person charged with

 

a felony, or a person who is a licensee or registrant under article

 

15 of the public health code, 1978 PA 368, MCL 333.16101 to

 

333.18838, as described in section 1(14) of chapter IX, and, or, if

 

directed by the court, in any other case in which a person is


 

charged with a misdemeanor within the jurisdiction of the court,

 

the probation officer shall inquire into the antecedents,

 

character, and circumstances of the person, and shall report in

 

writing to the court.

 

     (2) A presentence investigation report prepared under

 

subsection (1) shall not include any an address or telephone number

 

for the home, workplace, school, or place of worship of any a

 

victim or witness, or a family member of any victim or witness,

 

unless an address is used to identify the place of the crime or to

 

impose conditions of release from custody that are necessary for

 

the protection of a named individual. Upon request, any other

 

address or telephone number that would reveal the location of a

 

victim or witness or a family member of a victim or witness shall

 

be exempted from disclosure unless an address is used to identify

 

the place of the crime or to impose conditions of release from

 

custody that are necessary for the protection of a named

 

individual. A presentence investigation report prepared under

 

subsection (1) shall include all of the following:

 

     (a) An evaluation of and a prognosis for the person's

 

adjustment in the community based on factual information contained

 

in the report.

 

     (b) If requested by a victim, any a written impact statement

 

submitted by the victim under the William Van Regenmorter crime

 

victim's rights act, 1985 PA 87, MCL 780.751 to 780.834.

 

     (c) A specific written recommendation for disposition based on

 

the evaluation and other information as prescribed by the assistant

 

director of the department of corrections in charge of probation.a


 

term and the appropriate conditions of probation supervision

 

following jail confinement, if applicable, or the appropriate

 

conditions of probation supervision, if probation is granted.

 

     (d) A statement prepared by the prosecuting attorney as to

 

whether consecutive sentencing is required or authorized by law.

 

     (e) For a person to be sentenced under the sentencing

 

guidelines set forth in chapter XVII, all of the following:

 

     (i) For each conviction for which a consecutive sentence is

 

authorized or required, the sentence grid in part 6 of chapter XVII

 

that contains the recommended minimum sentence range.

 

     (ii) Unless otherwise provided in subparagraph (i), for each

 

crime having the highest crime class, the sentence grid in part 6

 

of chapter XVII that contains the recommended minimum sentence

 

range.

 

     (iii) Unless otherwise provided in subparagraph (i), the

 

computation that determines the recommended minimum sentence range

 

for the crime having the highest crime class.

 

     (iv) A specific statement as to the applicability of

 

intermediate sanctions, as defined in section 31 of chapter IX.

 

     (v) The recommended sentence.

 

     (f) If a person is to be sentenced for a felony or for a

 

misdemeanor involving the illegal delivery, possession, or use of

 

alcohol or a controlled substance, a statement that the person is

 

licensed or registered under article 15 of the public health code,

 

1978 PA 368, MCL 333.16101 to 333.18838, if applicable.

 

     (g) Diagnostic opinions that are available and not exempted

 

from disclosure under subsection (3).


 

     (h) A statement as to whether the person has provided the

 

identification documents referenced in subsection (9)(b).

 

     (3) The court may exempt from disclosure in the presentence

 

investigation report information or a diagnostic opinion that might

 

seriously disrupt a program of rehabilitation or sources of

 

information obtained on a promise of confidentiality. If a part of

 

the presentence investigation report is not disclosed, the court

 

shall state on the record the reasons for its action and inform the

 

defendant and his or her attorney that information has not been

 

disclosed. The action of the court in exempting information from

 

disclosure is subject to appellate review. Information or a

 

diagnostic opinion exempted from disclosure under this subsection

 

shall be specifically noted in the presentence investigation

 

report.

 

     (4) If a prepared presentence investigation report is amended

 

or altered before sentencing by the supervisor of the probation

 

officer who prepared the report or by any other person who has the

 

authority to amend or alter a presentence investigation report, the

 

probation officer may request that the court strike his or her name

 

from the report and the court shall comply with that request.

 

     (5) The court shall permit the prosecutor, the defendant's

 

attorney, and the defendant to review the presentence investigation

 

report before sentencing.

 

     (6) At the time of sentencing, either party may challenge, on

 

the record, the accuracy or relevancy of any information contained

 

in the presentence investigation report. The court may order an

 

adjournment to permit the parties to prepare a challenge or a


 

response to a challenge. If the court finds on the record that the

 

challenged information is inaccurate or irrelevant, that finding

 

shall be made a part of the record, the presentence investigation

 

report shall be amended, and the inaccurate or irrelevant

 

information shall be stricken accordingly before the report is

 

transmitted to the department of corrections.

 

     (7) A copy of the report described under subsection (5) and

 

the amended report described under subsection (6) shall be provided

 

to the prosecutor and the defendant's attorney or the defendant if

 

he or she is not represented by an attorney. The copy of the report

 

described under subsection (5) shall be provided not less than 2

 

business days before sentencing unless that period is waived by the

 

defendant. The prosecutor and the defendant's attorney or the

 

defendant if he or she is not represented by an attorney have the

 

right to retain a copy of the report and the amended report

 

provided under this subsection.

 

     (8) On appeal, the defendant's attorney, or the defendant if

 

proceeding pro se, shall be provided with a copy of the presentence

 

investigation report and any attachments to the report with the

 

exception of any information exempted from disclosure by the court

 

under subsection (3).

 

     (9) If the person is committed to a state correctional

 

facility, both of the following apply:

 

     (a) A copy or amended copy of the presentence investigation

 

report and, if a psychiatric examination of the person has been

 

made for the court, a copy of the psychiatric report shall

 

accompany the commitment papers. If the person is sentenced by fine


 

or imprisonment or placed on probation or other disposition of his

 

or her case is made by the court, a copy or amended copy of the

 

presentence investigation report, including a psychiatric

 

examination report made in the case, shall be filed with the

 

department of corrections.

 

     (b) The person shall be provided notification that provides an

 

explanation of the importance of obtaining an operator's license or

 

state personal identification card upon release from incarceration

 

and lists the personal identification documents described in

 

section 34c of the corrections code of 1953, 1953 PA 232, MCL

 

791.234c, necessary for obtaining an operator's license or state

 

personal identification card. The notification also shall contain a

 

request that the person obtain and provide those documents to the

 

department of corrections. The notification also shall state that

 

the department of corrections will retain in the file maintained

 

for the person any identification documents provided by the person

 

until he or she is released from secure confinement. Any

 

identification documents previously provided by the person shall

 

accompany the commitment papers.

 

     (10) A prisoner under the jurisdiction of the department of

 

corrections shall be provided with a copy of any presentence

 

investigation report in the department's possession about that

 

prisoner, except for information exempted from disclosure under

 

subsection (3), not less than 30 days before a parole interview is

 

conducted under section 35 of the corrections code of 1953, 1953 PA

 

232, MCL 791.235.

 

CHAPTER XIA


 

     Sec. 2. As used in this chapter:

 

     (a) "Absconding from supervision" means being apprehended by a

 

law enforcement or probation officer, or being arrested for a new

 

crime outside of this state.

 

     (b) (a) "Circuit of the circuit court" includes a unified

 

trial court having that has jurisdiction over probationers.

 

     (c) "Failure to report" means failure to report to the

 

probation officer when required and to turn himself or herself in

 

within 7 days after a warrant for his or her apprehension has been

 

issued.

 

     (d) "Major risk violation" means either of the following:

 

     (i) The violation of a protective order.

 

     (ii) An offense against a person that is a violation of section

 

83, 84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c,

 

520d, 520g(1), 529, or 529a of the Michigan penal code, 1931 PA

 

328, MCL 750.83, 750.84, 750.86, 750.88, 750.89, 750.317, 750.321,

 

750.349, 750.349a, 750.350, 750.397, 750.520b, 750.520c, 750.520d,

 

750.520g, 750.529, and 750.529a.

 

     (e) "Noncompliance violation" means a failure to report or

 

other violation of a condition of supervision that is not a risk

 

violation or a major risk violation.

 

     (f) "Nonconfinement response" means a violation response that

 

does not result in imprisonment in the custody of the department or

 

the county jail, including any of the following:

 

     (i) Extension of the period of supervision within the period

 

provided by law.

 

     (ii) Additional reporting and compliance requirements.


 

     (iii) Testing for the use of drugs or alcohol.

 

     (iv) Counseling or treatment for behavioral health problems,

 

including for substance use.

 

     (g) (b) "Probationer" means an individual placed on probation

 

for committing a felony.

 

     (h) "Risk violation" means a violation of a condition of

 

supervision that is any of the following:

 

     (i) Contact with a specifically prohibited person, or proximity

 

to a specifically prohibited business or location.

 

     (ii) An arrest for domestic violence or other threatening,

 

stalking, or assaultive behavior that is not a violation of a

 

protective order.

 

     (iii) An arrest for an unadjudicated new felony that is not a

 

major risk violation.

 

     (iv) Absconding from supervision.

 

     (v) The probationer's sixth or subsequent noncompliance

 

violation.

 

     Sec. 3. It is the intent of the legislature to create a

 

voluntary state program to fund swift and sure probation

 

supervision at the local level based upon on the immediate

 

detection of probation violations and the prompt the imposition of

 

sanctions and remedies to address those violations. In furtherance

 

of this intent, the state swift and sure sanctions program is

 

created with the following objectives:shall be implemented and

 

maintained as provided in this chapter as follows:

 

     (a) Probationers are to be sentenced with prescribed terms of

 

probation meeting the objectives of this chapter. Probationers are


 

to be aware of their probation terms as well as the consequences

 

for violating the terms of their probation.

 

     (b) Probationers are to be closely monitored and every

 

detected violation is to be promptly addressed by the court.

 

     (c) Probationers are to be arrested as soon as a violation has

 

been detected and are to be promptly taken before a judge for a

 

hearing on the violation unless the violation is a noncompliance

 

violation and the probationer waives a hearing after being

 

presented with a violation report.

 

     (d) Continued violations are to be addressed by increasing

 

sanctions and remedies as necessary to achieve results. At a

 

minimum, probationers may be confined for the period designated in

 

the violation report, up to 3 days, on the execution by the

 

probationer of a waiver of rights.

 

     (e) To the extent possible and considering local resources,

 

probationers subject to swift and sure probation under this chapter

 

shall be treated uniformly throughout the this state.

 

     Sec. 5. (1) A program of swift and sure probation supervision

 

funded under section 4 judge shall do all of the following if swift

 

and sure probation applies to a probationer:

 

     (a) Require the court to inform Inform the probationer in

 

person of the requirements of his or her probation and the

 

sanctions and remedies that may apply to probation violations.

 

     (b) Require the probationer to initially meet in person with a

 

probation agent or probation officer and as otherwise required by

 

the court.

 

     (c) Provide for an appearance before the judge or another


 

judge for any probation violation as soon as possible but within 72

 

hours after the violation is reported to the court unless the

 

probationer waives a hearing or a departure from the 72-hour

 

requirement is authorized for good cause as determined by criteria

 

established by the state court administrative office.

 

     (d) Provide for the immediate imposition of sanctions and

 

remedies approved by the state court administrative office to

 

effectively address probation violations. The sanctions and

 

remedies approved under this subdivision may include, but need not

 

be limited to, 1 or more of the following:as provided in section

 

4(1) of chapter XI.

 

     (i) Temporary incarceration in a jail or other facility

 

authorized by law to hold probation violators.

 

     (ii) Extension of the period of supervision within the period

 

provided by law.

 

     (iii) Additional reporting and compliance requirements.

 

     (iv) Testing for the use of drugs and alcohol.

 

     (v) Counseling and treatment for emotional or other mental

 

health problems, including for substance abuse.

 

     (vi) Probation revocation.

 

     (2) The state court administrative office may, under the

 

supervision of the supreme court, do any of the following regarding

 

programs funded under this chapter:

 

     (a) Establish general eligibility requirements for offender

 

participation.

 

     (b) Require courts and offenders to enter into written

 

participation agreements.


 

     (c) Create recommended and mandatory sanctions and remedies

 

for use by participating courts.

 

     (d) Establish criteria for deviating from recommended and

 

mandatory sanctions and remedies when if necessary to address

 

special circumstances.

 

     (e) Establish a system for determining sanctions and remedies

 

that should or may be imposed under subdivision (c) and for

 

alternative sanctions and remedies under subdivision (d).