Bill Text: MI SB0321 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Criminal procedure: sentencing; resentencing upon petition of certain prisoners; provide process for. Amends secs. 12 & 25, ch. IX of 1927 PA 175 (MCL 769.12 & 769.25) & adds secs. 27a, 27b, 27c, 27d, 27e, 27f, 27g & 27h to ch. IX.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced) 2023-05-03 - Referred To Committee On Civil Rights, Judiciary, And Public Safety [SB0321 Detail]
Download: Michigan-2023-SB0321-Introduced.html
SENATE BILL NO. 321
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 12 and 25 of chapter IX (MCL 769.12 and 769.25), section 12 as amended by 2012 PA 319 and section 25 as added by 2014 PA 22, and by adding sections 27a, 27b, 27c, 27d, 27e, 27f, 27g, and 27h to chapter IX.
the people of the state of michigan enact:
Sec. 12. (1) If Subject to subsection (6), if a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing sentenced under section 13 of this chapter as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies, the court shall sentence the person to imprisonment for not less than 25 years. Not more than 1 conviction arising out of the same transaction shall may be considered a prior felony conviction for the purposes of this subsection only.
(b) 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 section 1 of chapter XI, may sentence the person to imprisonment for life or for a lesser term.
(c) 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 section 1 of chapter XI, may sentence the person to imprisonment for a maximum term of not more than 15 years.
(d) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461.
(2) If the court imposes a sentence of imprisonment for any term of years under this section, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or a fraction of a year, and the sentence so imposed shall must be considered an indeterminate sentence. The court shall not fix a maximum sentence that is less than the maximum term for a first conviction.
(3) A conviction shall must not be used to enhance a sentence under this section if that conviction is used to enhance a sentence under a statute that prohibits use of the conviction for further enhancement under this section.
(4) An Subject to subsection (6), an offender sentenced under this section or section 10 or 11 of this chapter for an offense other than a major controlled substance offense is not eligible for parole until expiration of the following:
(a) For a prisoner other than a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor gives written approval for parole at an earlier date authorized by law.
(b) For a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge.
(5) This section and sections 10 and 11 of this chapter are not in derogation of other provisions of law that permit or direct the imposition of a consecutive sentence for a subsequent felony.
(6) This section does not apply to the resentencing of an individual under sections 27a to 27h of this chapter.
(7) (6) As used in this section:
(a) "Listed prior felony" means a violation or attempted violation of any of the following:
(i) Section 602a(4) or (5) or 625(4) of the Michigan vehicle code, 1949 PA 300, MCL 257.602a and 257.625.
(ii) Article 7 of the public health code, 1978 PA 368, MCL 333.7101 to 333.7545, that is punishable by imprisonment for more than 4 years.
(iii) Section 72, 82, 83, 84, 85, 86, 87, 88, 89, 91, 110a(2) or (3), 136b(2) or (3), 145n(1) or (2), 157b, 197c, 226, 227, 234a, 234b, 234c, 317, 321, 329, 349, 349a, 350, 397, 411h(2)(b), 411i, 479a(4) or (5), 520b, 520c, 520d, 520g, 529, 529a, or 530 of the Michigan penal code, 1931 PA 328, MCL 750.72, 750.82, 750.83, 750.84, 750.85, 750.86, 750.87, 750.88, 750.89, 750.91, 750.110a, 750.136b, 750.145n, 750.157b, 750.197c, 750.226, 750.227, 750.234a, 750.234b, 750.234c, 750.317, 750.321, 750.329, 750.349, 750.349a, 750.350, 750.397, 750.411h, 750.411i, 750.479a, 750.520b, 750.520c, 750.520d, 750.520g, 750.529, 750.529a, and 750.530.
(iv) A second or subsequent violation or attempted violation of section 227b of the Michigan penal code, 1931 PA 328, MCL 750.227b.
(v) Section 2a of 1968 PA 302, MCL 752.542a.
(b) "Prisoner subject to disciplinary time" means that term as defined in section 34 of 1893 PA 118, MCL 800.34.
(c) "Serious crime" means an offense against a person in 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.
Sec. 25. (1) This Subject to subsection (11), this section applies to a criminal defendant who was less than 18 years of age at the time he or she committed an offense described in subsection (2) if either of the following circumstances exists:
(a) The defendant is convicted of the offense on or after the effective date of the amendatory act that added this section.March 14, 2014.
(b) The defendant was convicted of the offense before the effective date of the amendatory act that added this section March 14, 2014 and either of the following applies:
(i) The case is still pending in the trial court or the applicable time periods for direct appellate review by state or federal courts have not expired.
(ii) On June 25, 2012 the case was pending in the trial court or the applicable time periods for direct appellate review by state or federal courts had not expired.
(2) The prosecuting attorney may file a motion under this section to sentence a defendant described in subsection (1) to imprisonment for life without the possibility of parole if the individual is or was convicted of any of the following violations:
(a) A violation of section 17764(7) of the public health code, 1978 PA 368, MCL 333.17764.
(b) A violation of section 16(5), 18(7), 316, 436(2)(e), or 543f of the Michigan penal code, 1931 PA 328, MCL 750.16, 750.18, 750.316, 750.436, and 750.543f.
(c) A violation of chapter XXXIII of the Michigan penal code, 1931 PA 328, MCL 750.200 to 750.212a.
(d) Any violation of law involving the death of another person for which parole eligibility is expressly denied under state law.
(3) If the prosecuting attorney intends to seek a sentence of imprisonment for life without the possibility of parole for a case described in subsection (1)(a), the prosecuting attorney shall file the motion within 21 days after the defendant is convicted of that violation. If the prosecuting attorney intends to seek a sentence of imprisonment for life without the possibility of parole for a case described under subsection (1)(b), the prosecuting attorney shall file the motion within 90 days after the effective date of the amendatory act that added this section. March 14, 2014. The motion shall must specify the grounds on which the prosecuting attorney is requesting the court to impose a sentence of imprisonment for life without the possibility of parole.
(4) If the prosecuting attorney does not file a motion under subsection (3) within the time periods provided for in that subsection, the court shall sentence the defendant to a term of years as provided in subsection (9).
(5) If the prosecuting attorney files a motion under subsection (2) requesting that the individual be sentenced to imprisonment for life without parole eligibility, the individual shall file a response to the prosecution's motion within 14 days after receiving notice of the motion.
(6) If the prosecuting attorney files a motion under subsection (2), the court shall conduct a hearing on the motion as part of the sentencing process. At the hearing, the trial court shall consider the factors listed in Miller v Alabama, 576 US_____; Miller v Alabama, 576 US 460; 183 L Ed 2d 407; 132 S Ct 2455 (2012), and may consider any other criteria relevant to its decision, including the individual's record while incarcerated.
(7) At the hearing under subsection (6), 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. The court may consider evidence presented at trial together with any evidence presented at the sentencing hearing.
(8) Each victim shall must be afforded the right under section 15 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any sentencing or resentencing of the defendant under this section.
(9) If the court decides not to sentence the individual to imprisonment for life without parole eligibility, the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.
(10) A defendant who is sentenced under this section shall must be given credit for time already served but shall must not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence.
(11) This section does not apply to the resentencing of an individual under sections 27a to 27h of this chapter.
Sec. 27a. (1) Notwithstanding any other provision of law, an incarcerated individual who has served not less than 10 years of the incarcerated individual's sentence or sentences for any conviction or for a combination of convictions may petition the sentencing court for a reduction of any or all of the incarcerated individual's sentences as provided under this section.
(2) A petition for a sentence reduction under this section may be filed after the date on which the tenth year of imprisonment begins for an incarcerated individual sentenced to more than 10 years of imprisonment.
(3) Except as otherwise provided in this subsection, if a petition for a reduction in sentence under this section has been denied, the incarcerated individual shall not file a successive petition until not less than 2 years have elapsed after the date the petition was denied. The court may require a waiting period longer than 2 years, but in no case may require a waiting period longer than 5 years after the date the most recent petition was denied.
(4) If a petition for a reduction in sentence under this section has been granted and the total sentence to be served was reduced by not less than 25%, the incarcerated individual shall not file a petition for a second sentencing reduction until not less than 5 years have elapsed after the date the petition was granted.
(5) Notwithstanding any other provision of law to the contrary, an incarcerated individual who has not yet served 10 years of imprisonment is eligible to petition for a reduction in sentence if the prosecuting attorney in the applicable jurisdiction consents to filing of the petition.
(6) Except as otherwise provided in this subsection, no offense disqualifies an incarcerated individual from relief under this chapter. An incarcerated individual who was convicted of a mass shooting offense is not entitled to relief under this chapter. For a petition under this section, an offense is considered a mass shooting offense if the sentencing judge or the judge's successor determines, by clear and convincing evidence, that the murders resulted in physical, emotional, or psychological injury to a large number of people who were present at the time of the offense, the murders significantly increased the burden of victim assistance and compensation for the applicable jurisdiction, and the murders arose out of an incident in which the incarcerated individual brought a firearm and ammunition to a location with the intent to commit murder. As used in this subsection, "mass shooting offense" means an offense that resulted in convictions for 3 or more counts of first degree premeditated murder arising out of a single incident.
(7) A sentencing court that receives a petition for resentencing under this chapter may reduce a sentence or deny the petition. Notwithstanding any other law or provision, the court shall not increase a sentence as a result of a petition under this section. The court may reduce a mandatory sentence or a sentence imposed as the result of a binding plea or sentencing agreement.
Sec. 27b. (1) After an individual has served 9 years of imprisonment, the department of corrections shall, within 30 days of the date beginning the incarcerated individual's ninth year of incarceration, give written notice of the individual's eligibility to file a petition for a reduction of sentence under section 27a of this chapter to all of the following:
(a) The incarcerated individual.
(b) The sentencing court.
(c) The applicable prosecuting attorney.
(d) Any public defense authority in the judicial circuit in which the sentence was imposed.
(2) The petition must be filed by the incarcerated individual, counsel for the incarcerated individual, the prosecuting attorney, or the next friend of the incarcerated individual, if the incarcerated individual cannot bring the petition and the next friend is acting in the best interests of the incarcerated individual. As used in this subsection, "next friend" includes, but is not limited to, the incarcerated individual's next of kin or a qualified medical professional.
(3) The petition must be filed in writing in the judicial circuit in which the sentence was imposed and may include affidavits, declarations, letters, prison records, or other written and electronic material.
(4) The petition must include, at a minimum, all of the following:
(a) The name of the petitioner.
(b) The name of the incarcerated individual.
(c) The applicable case number or case numbers.
(d) The offense or offenses of conviction.
(e) The current sentence or sentences being served for each case number.
(f) The date of the offense and sentence.
(g) The name of the trial and sentencing judge.
(h) The specific offenses for which the petitioner is requesting resentencing.
(i) A factual statement explaining how the incarcerated individual meets the eligibility requirements described in section 27a of this chapter.
(j) If the petition is filed by the next friend of the incarcerated individual, a factual statement explaining the petitioner's relationship to the incarcerated individual, why the incarcerated individual cannot bring the petition on the incarcerated individual's own behalf, and how the next friend is acting in the best interests of the incarcerated individual.
(5) Within 30 days of receipt of a petition, the court shall provide the applicable prosecuting attorney and the incarcerated individual with a copy of the petition, including any attached written or electronic material.
(6) A petition must be assigned to the judge who imposed the original sentence on the incarcerated individual for a determination. If, at the time of the petition, the original sentencing judge is no longer available, the petition must be assigned to that judge's successor.
(7) After the filing of a petition for a sentencing reduction, the court may direct the parties to expand the record by submitting additional materials relating to the petition. A petition may be freely amended at any time before a hearing.
(8) The court shall not honor or permit a waiver of the right to petition for a resentencing under section 27a of this chapter.
Sec. 27c. (1) On receiving a petition made under section 27a of this chapter, the sentencing court shall determine whether the incarcerated individual qualifies for a sentence reduction by confirming all of the following:
(a) The incarcerated individual has served not less than 10 years in prison.
(b) The incarcerated individual is not time-barred by a prior petition for a sentence reduction.
(c) The incarcerated individual is not excluded from petitioning for a sentence reduction under 27a(6) of this chapter.
(2) Subject to subsection (3), if the court determines that the incarcerated individual qualifies for a sentence reduction, that court shall set a date for a resentencing hearing.
(3) If the incarcerated individual otherwise qualifies for a sentence reduction under the requirements under subsection (1) and is seeking a reduced sentence in connection with a conviction for any of the following offenses, the court may or may not grant a sentence reduction hearing at the court's discretion:
(a) A violation of section 520b or 520c of the Michigan penal code, 1931 PA 328, MCL 750.520b and 750.520c, committed against a victim less than 13 years of age.
(b) A violation section 81(4) or (5) of the Michigan penal code, 1931 PA 328, MCL 750.81.
(c) A violation of section 81a(3) of the Michigan penal code, 1931 PA 328, MCL 750.81a.
(d) A violation of section 145c(2)(b) of the Michigan penal code, 1931 Pa 328, MCL 750.145c.
(e) A violation of section 462c, 462d, or 462e of the Michigan penal code, 1931 PA 328, MCL 750.462c, 750.462d, and 750.462e.
(4) If the court determines that the incarcerated individual does not qualify for a sentence reduction under the requirements of subsection (1), the court shall enter an order denying the petition and cause a copy of the order to be provided to the petitioner and, if the incarcerated individual is not the petitioner, the incarcerated individual.
(5) Unless the court finds good cause to hold the hearing at a later date or the petitioner requests a delay of the hearing, if the court determines that the facts stated in the petition meet the requirements under subsection (1), the court shall set a resentencing hearing not more than 45 days after the date the petition is filed with the court if 1 or more of the following circumstances apply to the petition:
(a) The incarcerated individual has 1 or more medical conditions leading to major limitations in activities of daily living, including, but not limited to, a serious mental illness or an intellectual or developmental disability.
(b) The incarcerated individual has 1 or more medical conditions that make the incarcerated individual more likely to contract an illness or disease while incarcerated that could lead to death or cause the incarcerated individual to develop a medical condition that prevents the performance of 1 or more activities of daily living without assistance. Such conditions include, but are not limited to, any condition related to a weakened immune system, including human immunodeficiency virus or acquired immune deficiency syndrome; debilitating health conditions that occur as a result of dementia, Alzheimer's disease, or similar degenerative brain disorders; cardiovascular disease; chronic lung disease or asthma; diabetes; hepatitis C; seizure disorders; the need for life-sustaining care such as feeding tubes or colostomy bags; disabling neurological disorders such as multiple sclerosis or amyotrophic lateral sclerosis; or any condition that requires or is expected to require specialty care or recurrent hospitalizations.
(c) The petition is filed by the prosecuting attorney.
(6) Unless the court finds good cause to hold the hearing at a later date or the petitioner requests a delay of the hearing, if the court determines that the facts stated in the petition meet the requirements under subsection (1), and if subsection (5) does not apply to a petition but 1 or more of the following circumstances do apply to the petition, the court shall set a resentencing hearing not more than 90 days after the date the petition is filed with the court:
(a) The incarcerated individual has served over 20 years of the incarcerated individual's sentence.
(b) The incarcerated individual is over 55 years of age.
(7) Unless the court finds good cause to hold the hearing at a later date or the petitioner requests a delay of the hearing, if the court determines that the facts stated in the petition meet the requirements under subsection (1) and neither subsection (5) nor (6) apply to a petition, the court shall set a resentencing hearing not more than 180 days after the date the petition is filed with the court.
(8) If the court determines that the facts stated in the petition meet the requirements under subsection (1) and the matter is subsequently reassigned to a successor judge, the court shall not reconsider the sufficiency of the petition or decline to set a hearing.
(9) When the court sets a resentencing hearing under this section, the court shall provide notice of the hearing to the incarcerated individual, counsel for the incarcerated individual, the department of corrections, the prosecuting attorney, and the next friend of the incarcerated individual, if applicable.
(10) In a hearing under this section, the court may allow parties to present any evidence that the court deems relevant to the issue of the propriety of a reduction in sentence. The evidence may include documents, live testimony, tangible objects, or any other class of evidence or information pertinent to sentencing. The court has exclusive discretion to determine the relevance of any proposed evidence. The incarcerated individual must be permitted to testify or to remain silent at the hearing.
(11) Unless the incarcerated individual waives the right to be present, the incarcerated individual must be present during a hearing under this section. The requirement under this subsection may be satisfied by the incarcerated individual appearing by video teleconference if the incarcerated individual consents to video appearance.
(12) A hearing under this section must be conducted on the record.
Sec. 27d. (1) In a hearing conducted under section 27c of this chapter, the sentencing court shall consider all relevant evidence, which includes, but is not limited to, all of the following:
(a) The age of the incarcerated individual at the time of the offense and relevant research regarding child, adolescent, and young adult brain development.
(b) The age of the incarcerated individual at the time of the sentence modification petition and relevant research regarding the decline in criminal behavior as individuals age.
(c) The nature of the offense, including changing societal attitudes regarding the propriety of criminalizing the offense and the appropriate sentence for the offense.
(d) The history and characteristics of the incarcerated individual at the time of the petition for a reduction in sentence, including rehabilitation demonstrated by the incarcerated individual, the incarcerated individual's disciplinary record while incarcerated, and the incarcerated individual's efforts to participate in educational, therapeutic, and vocational opportunities while incarcerated.
(e) Any oral or written statements provided by the victim's representative.
(f) The circumstances of the offense, including the incarcerated individual's role in its commission, whether the incarcerated individual was under the influence of another, and the proportionality of the incarcerated individual's sentence compared to that received by other parties to the offense.
(g) The circumstances of the incarcerated individual's incarceration, including the incarcerated individual's conditions of confinement, the impact of the incarcerated individual's incarceration on the community, and any evidence that the incarcerated individual has been subjected to physical, sexual, or psychological abuse while incarcerated.
(h) Any evidence concerning the incarcerated individual's current physical or mental health and the incarcerated individual's health at the time of the offense.
(i) Any evidence concerning plea offers by the prosecuting attorney.
(j) Any evidence that the incarcerated individual was denied effective assistance of counsel at any stage in the case resulting in the original sentence, including ineffective assistance of counsel during plea bargaining.
(k) Any evidence that the incarcerated individual was wrongfully convicted.
(l) Any evidence that the incarcerated individual was subjected to human trafficking and that the victimization was a contributing factor to the incarcerated individual's criminal behavior.
(m) Any evidence that the incarcerated individual was subjected to physical, sexual, or psychological abuse by an intimate partner or a family or household member and that the victimization was a contributing factor to the incarcerated individual's criminal behavior.
(n) The incarcerated individual's parole guidelines score.
(o) The incarcerated individual's family and home environment at the time of the offense, including any evidence of childhood abuse or neglect, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance.
(p) Any evidence about whether the individual might have been charged and convicted of a lesser offense if not for an incompetency associated with youth, intellectual disability, or mental illness. This includes any evidence of the incarcerated individual's inability to engage with police officers or prosecutors or incapacity to assist defense counsel.
(q) Any other information the court determines relevant to the decision of the court.
(2) At the conclusion of the hearing, if the sentencing court finds that the petitioner has shown by a preponderance of the evidence that it is in the interest of justice to reduce the incarcerated individual's sentence, the court shall resentence the incarcerated individual to an appropriate reduced sentence.
(3) The court shall set forth, either on the record or in writing within 30 days of the hearing, the reasons for granting or denying a petition for resentencing.
Sec. 27e. (1) In imposing the new term to be served by the incarcerated individual, the court shall credit the incarcerated individual for any jail time credited toward the subject conviction and for any period of incarceration served under the sentence originally imposed.
(2) If section 27c(5) of this chapter applies to the petition, there is a rebuttable presumption that the incarcerated individual's sentence must be reduced to time served.
(3) If the court finds that the incarcerated individual no longer poses a meaningful risk to the community, there is a rebuttable presumption that the incarcerated individual's sentence must be reduced by not less than 20% or to no longer than 5 years of incarceration from the date of the filing of the petition, whichever results in a shorter period of incarceration.
(4) If the prosecuting attorney is the petitioner, the new term of incarceration to be served by the incarcerated individual must not exceed the recommendation of the petitioner. The court may impose a shorter term of incarceration than the term recommended by the petitioner, including by ordering immediate release.
(5) In imposing the new term to be served by the incarcerated individual, the court shall impose a sentence of time served, immediate parole, or a term of years. The court shall not impose life with parole.
Sec. 27f. (1) Once a hearing date has been set for resentencing under this chapter, the prosecuting attorney shall promptly notify the victim of the offense for which the application was filed and the hearing date. The notice must be by first-class mail to the victim's last known address. The victim or the victim's designee has the right to appear and the right, as otherwise provided by law, to make a statement at the resentencing hearing of the incarcerated individual regarding the impact of the offense conduct on the victim. The prosecuting attorney shall promptly notify the victim of any new sentence imposed under this chapter.
(2) If the incarcerated individual's underlying conviction is homicide, the prosecuting attorney shall consult with the victim's family before making any filing in relation to a petition for resentencing.
(3) If the incarcerated individual would be otherwise ineligible for relief but for the prosecuting attorney's consent under section 27a(5) of this chapter, the prosecuting attorney shall make reasonable efforts to consult with the victim before consenting to the petition.
(4) Resentencing under section 27e of this chapter does not disturb any restitution awarded at the original sentencing.
(5) As used in this section, "victim" means that term as defined in sections 2 and 61 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.752 and 780.811.
Sec. 27g. (1) An appeal from a resentencing under section 27e of this chapter may be taken by the incarcerated individual, petitioner, or prosecuting authority. An appeal from resentencing under this chapter is in the same manner, either by right or by leave, as a first appeal from an initial sentence at the time of conviction.
(2) An appeal from a denial of resentencing under this chapter may be taken by the incarcerated individual or petitioner, if the petitioner is not the incarcerated individual. An appeal from a denial of resentencing under this chapter is in the same manner, either by right or by leave, as a first appeal from an initial sentence at the time of conviction.
Sec. 27h. (1) Resentencing under section 27e of this chapter does not abridge or modify any existing remedy an incarcerated individual may have for habeas corpus or other postconviction relief as provided by court rule or law, or any other legal framework.
(2) A petition filed under section 27a of this chapter does not impact and is not impacted by any pending petitions for habeas corpus or other postconviction proceedings provided for by court rule or law, nor shall the denial of a petition under section 27a of this chapter preclude such remedies from being granted.
