November 8, 2012, Introduced by Rep. Haveman and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending section 1 of chapter IX (MCL 769.1), as amended by 1999
PA 87, and by adding section 1m to chapter IX.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec. 1. (1) A judge of a court having jurisdiction may
pronounce judgment against and pass sentence upon a person
convicted of an offense in that court. The sentence shall not
exceed
the sentence prescribed by law. The Except as provided in
sections 34 and 34d of the corrections code of 1953, 1953 PA 232,
MCL 791.234 and 791.234d, the court shall sentence a juvenile
convicted of any of the following crimes in the same manner as an
adult:
(a) Arson of a dwelling in violation of section 72 of the
Michigan penal code, 1931 PA 328, MCL 750.72.
(b) Assault with intent to commit murder in violation of
section 83 of the Michigan penal code, 1931 PA 328, MCL 750.83.
(c) Assault with intent to maim in violation of section 86 of
the Michigan penal code, 1931 PA 328, MCL 750.86.
(d) Attempted murder in violation of section 91 of the
Michigan penal code, 1931 PA 328, MCL 750.91.
(e) Conspiracy to commit murder in violation of section 157a
of the Michigan penal code, 1931 PA 328, MCL 750.157a.
(f) Solicitation to commit murder in violation of section 157b
of the Michigan penal code, 1931 PA 328, MCL 750.157b.
(g) First degree murder in violation of section 316 of the
Michigan penal code, 1931 PA 328, MCL 750.316.
(h) Second degree murder in violation of section 317 of the
Michigan penal code, 1931 PA 328, MCL 750.317.
(i) Kidnapping in violation of section 349 of the Michigan
penal code, 1931 PA 328, MCL 750.349.
(j) First degree criminal sexual conduct in violation of
section 520b of the Michigan penal code, 1931 PA 328, MCL 750.520b.
(k) Armed robbery in violation of section 529 of the Michigan
penal code, 1931 PA 328, MCL 750.529.
(l) Carjacking in violation of section 529a of the Michigan
penal code, 1931 PA 328, MCL 750.529a.
(2) A person convicted of a felony or of a misdemeanor
punishable by imprisonment for more than 92 days shall not be
sentenced until the court has examined the court file and has
determined that the person's fingerprints have been taken.
(3) Unless a juvenile is required to be sentenced in the same
manner as an adult under subsection (1), a judge of a court having
jurisdiction over a juvenile shall conduct a hearing at the
juvenile's sentencing to determine if the best interests of the
public would be served by placing the juvenile on probation and
committing the juvenile to an institution or agency described in
the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to
803.309, or by imposing any other sentence provided by law for an
adult offender. Except as provided in subsection (5), the court
shall sentence the juvenile in the same manner as an adult unless
the court determines by a preponderance of the evidence that the
interests of the public would be best served by placing the
juvenile on probation and committing the juvenile to an institution
or agency described in the youth rehabilitation services act, 1974
PA 150, MCL 803.301 to 803.309. The rules of evidence do not apply
to a hearing under this subsection. In making the determination
required under this subsection, the judge shall consider all of the
following, giving greater weight to the seriousness of the alleged
offense and the juvenile's prior record of delinquency:
(a) The seriousness of the alleged offense in terms of
community protection, including, but not limited to, the existence
of any aggravating factors recognized by the sentencing guidelines,
the use of a firearm or other dangerous weapon, and the impact on
any victim.
(b) The juvenile's culpability in committing the alleged
offense, including, but not limited to, the level of the juvenile's
participation in planning and carrying out the offense and the
existence of any aggravating or mitigating factors recognized by
the sentencing guidelines.
(c) The juvenile's prior record of delinquency including, but
not limited to, any record of detention, any police record, any
school record, or any other evidence indicating prior delinquent
behavior.
(d) The juvenile's programming history, including, but not
limited to, the juvenile's past willingness to participate
meaningfully in available programming.
(e) The adequacy of the punishment or programming available in
the juvenile justice system.
(f) The dispositional options available for the juvenile.
(4) With the consent of the prosecutor and the defendant, the
court may waive the hearing required under subsection (3). If the
court waives the hearing required under subsection (3), the court
may place the juvenile on probation and commit the juvenile to an
institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309, but shall not
impose any other sentence provided by law for an adult offender.
(5) If a juvenile is convicted of a violation or conspiracy to
commit a violation of section 7403(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7403, the court shall determine whether
the best interests of the public would be served by imposing the
sentence provided by law for an adult offender, by placing the
individual on probation and committing the individual to an
institution or agency under subsection (3), or by imposing a
sentence of imprisonment for any term of years but not less than 25
years. If the court determines by clear and convincing evidence
that the best interests of the public would be served by imposing a
sentence of imprisonment for any term of years but not less than 25
years, the court may impose that sentence. In making its
determination, the court shall use the criteria specified in
subsection (3).
(6) The court shall state on the record the court's findings
of fact and conclusions of law for the probation and commitment
decision or sentencing decision made under subsection (3). If a
juvenile is committed under subsection (3) to an institution or
agency described in the youth rehabilitation services act, 1974 PA
150, MCL 803.301 to 803.309, a transcript of the court's findings
shall be sent to the family independence agency or county juvenile
agency, as applicable.
(7) If a juvenile is committed under subsection (3) or (4) to
an institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309, the written
order of commitment shall contain a provision for the reimbursement
to the court by the juvenile or those responsible for the
juvenile's support, or both, for the cost of care or service. The
amount of reimbursement ordered shall be reasonable, taking into
account both the income and resources of the juvenile and those
responsible for the juvenile's support. The amount may be based
upon the guidelines and model schedule prepared under section 18(6)
of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.18. The reimbursement provision applies during the entire
period the juvenile remains in care outside the juvenile's own home
and under court supervision. The court shall provide for the
collection of all amounts ordered to be reimbursed, and the money
collected shall be accounted for and reported to the county board
of commissioners. Collections to cover delinquent accounts or to
pay the balance due on reimbursement orders may be made after a
juvenile is released or discharged from care outside the juvenile's
own home and under court supervision. Twenty-five percent of all
amounts collected pursuant to an order entered under this
subsection shall be credited to the appropriate fund of the county
to offset the administrative cost of collections. The balance of
all amounts collected pursuant to an order entered under this
subsection shall be divided in the same ratio in which the county,
state, and federal government participate in the cost of care
outside the juvenile's own home and under county, state, or court
supervision. The court may also collect benefits paid by the
government of the United States for the cost of care of the
juvenile. Money collected for juveniles placed with or committed to
the family independence agency or a county juvenile agency shall be
accounted for and reported on an individual basis. In cases of
delinquent accounts, the court may also enter an order to intercept
state tax refunds or the federal income tax refund of a child,
parent, guardian, or custodian and initiate the necessary offset
proceedings in order to recover the cost of care or service. The
court shall send to the person who is the subject of the intercept
order advance written notice of the proposed offset. The notice
shall include notice of the opportunity to contest the offset on
the grounds that the intercept is not proper because of a mistake
of fact concerning the amount of the delinquency or the identity of
the person subject to the order. The court shall provide for the
prompt reimbursement of an amount withheld in error or an amount
found to exceed the delinquent amount.
(8) If the court appoints an attorney to represent a juvenile,
an order entered under this section may require the juvenile or
person responsible for the juvenile's support, or both, to
reimburse the court for attorney fees.
(9) An order directed to a person responsible for the
juvenile's support under this section is not binding on the person
unless an opportunity for a hearing has been given and until a copy
of the order is served on the person, personally or by first-class
mail to the person's last known address.
(10) If a juvenile is placed on probation and committed under
subsection (3) or (4) to an institution or agency described in the
youth rehabilitation services act, 1974 PA 150, MCL 803.301 to
803.309, the court shall retain jurisdiction over the juvenile
while the juvenile is on probation and committed to that
institution or agency.
(11) If the court has retained jurisdiction over a juvenile
under subsection (10), the court shall conduct an annual review of
the services being provided to the juvenile, the juvenile's
placement, and the juvenile's progress in that placement. In
conducting this review, the court shall examine the juvenile's
annual report prepared under section 3 of the juvenile facilities
act, 1988 PA 73, MCL 803.223. The court may order changes in the
juvenile's placement or treatment plan including, but not limited
to, committing the juvenile to the jurisdiction of the department
of corrections, based on the review.
(12) If an individual who is under the court's jurisdiction
under section 4 of chapter XIIA of the probate code of 1939, 1939
PA 288, MCL 712A.4, is convicted of a violation or conspiracy to
commit a violation of section 7403(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7403, the court shall determine whether
the best interests of the public would be served by imposing the
sentence provided by law for an adult offender or by imposing a
sentence of imprisonment for any term of years but not less than 25
years. If the court determines by clear and convincing evidence
that the best interests of the public would be served by imposing a
sentence of imprisonment for any term of years but not less than 25
years, the court may impose that sentence. In making its
determination, the court shall use the criteria specified in
subsection (3) to the extent they apply.
(13) If the defendant is sentenced for an offense other than a
listed
offense as defined in section 2(d)(i) to (ix) 2(e)(i) to (x)
and
(xi) to (xiii) (xii) to (xiv) of
the sex offenders registration act,
1994 PA 295, MCL 28.722, the court shall determine if the offense
is a violation of a law of this state or a local ordinance of a
municipality of this state that by its nature constitutes a sexual
offense against an individual who is less than 18 years of age. If
so, the conviction is for a listed offense as defined in section
2(d)(x) 2(e)(xi) of the sex offenders
registration act, 1994 PA 295,
MCL 28.722, and the court shall include the basis for that
determination on the record and include the determination in the
judgment of sentence.
(14) When sentencing a person convicted of a misdemeanor
involving the illegal delivery, possession, or use of alcohol or a
controlled substance or a felony, the court shall examine the
presentence investigation report and determine if the person being
sentenced is licensed or registered under article 15 of the public
health code, 1978 PA 368, MCL 333.16101 to 333.18838. The court
shall also examine the court file and determine if a report of the
conviction upon which the person is being sentenced has been
forwarded to the department of consumer and industry services as
provided in section 16a. If the report has not been forwarded to
the department of consumer and industry services, the court shall
order the clerk of the court to immediately prepare and forward the
report as provided in section 16a.
Sec. 1m. (1) This section applies if either of the following
occurs:
(a) On or after the effective date of the amendatory act that
added this section, a defendant is convicted of an offense for
which the penalty is life without possibility of parole and the
defendant was under the age of 18 at the time he or she committed
the offense.
(b) Before the effective date of the amendatory act that added
this section, a defendant was convicted of an offense for which the
penalty is life without possibility of parole, the defendant was
under the age of 18 at the time he or she committed the offense,
and the case is still pending in the trial court or applicable time
periods for appellate review by state or federal courts have not
expired.
(2) If subsection (1)(a) applies, not more than 14 days after
a conviction, the prosecuting attorney may file a motion to request
a hearing on whether the mandatory sentence of life without
possibility of parole, or life with eligibility for parole as
provided in sections 34 and 34d of the corrections code of 1953,
1953 PA 232, MCL 791.234 and 791.234d, should be imposed.
(3) If subsection (1)(b) applies, not more than 28 days after
the effective date of the amendatory act that added this section or
more than 28 days after the case is returned to the trial court for
sentencing under this section, whichever occurs later, the
prosecuting attorney may file a motion to request a hearing on
whether the mandatory sentence of life without possibility of
parole, or life with eligibility for parole as provided in sections
34 and 34d of the corrections code of 1953, 1953 PA 232, MCL
791.234 and 791.234d, should be imposed.
(4) The prosecuting attorney shall specify the basis for
seeking a sentence of life without possibility of parole. If the
prosecuting attorney does not file a motion described under
subsection (2) or (3), the court shall impose a sentence of life
with eligibility for parole as provided in sections 34 and 34d of
the corrections code of 1953, 1953 PA 232, MCL 791.234 and
791.234d.
(5) The defense may file a response to the prosecuting
attorney's motion within 21 days after receipt of a motion
described in subsection (2) or (3) specifying the basis for seeking
a sentence of life with eligibility for parole as provided in
sections 34 and 34d of the corrections code of 1953, 1953 PA 232,
MCL 791.234 and 791.234d, instead of life without possibility of
parole.
(6) At a hearing requested by the prosecuting attorney under
subsection (2) or (3), the court shall consider aggravating and
mitigating factors, including all of the following:
(a) Whether the defendant was the principal actor or initiated
the events that led to the offense or had a more limited role, such
as aiding or abetting the offense.
(b) Whether the offense occurred during an act of terrorism or
was part of a continuing series of criminal acts.
(c) Whether the defendant acted in concert with 2 or more
persons in committing the offense.
(d) Whether the defendant was convicted of multiple murders or
there were multiple victims.
(e) Whether the victim was a minor, a vulnerable adult, or an
officer or employee of a law enforcement or correctional agency, or
the defendant exploited a victim's physical disability, mental
disability, or a domestic relationship.
(f) Whether the victim was treated with sadism, torture, or
excessive brutality or conduct designed to substantially increase
the fear and anxiety of the victim.
(g) Whether the victim of the offense was a witness to a crime
and the offense was committed to prevent the victim from
testifying.
(h) Whether the defendant had no significant prior criminal
conduct before committing the offense for which he or she was
sentenced to life without possibility of parole.
(i) Whether the defendant was under the influence of extreme
mental or emotional disturbance when the offense was committed.
(j) Whether the defendant was under the substantial domination
of another person during the commission of the offense.
(k) Whether the defendant's capacity to appreciate the
criminality of his or her conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of
mental illness or mental disability.
(l) Whether the defendant's age, family circumstances, or
mental development substantially affected his or her ability to
appreciate the consequences of his or her actions.
(m) Any other circumstances the court determines are
appropriate for its consideration.
(7) A hearing under this section shall be considered a
sentencing hearing under Michigan rule of evidence 1101. The court
may consider evidence presented at trial and additional evidence
presented by the prosecution or defense at the sentencing hearing.
The court shall specify on the record the aggravating and
mitigating circumstances considered by the court and the court's
reasons supporting the sentence imposed as provided under this
section.
(8) A defendant sentenced to life without possibility of
parole is not subject to the provisions of section 34 of the
corrections code of 1953, 1953 PA 232, MCL 791.234.