6.14Deferred Adjudication of Guilt Under § 7411¹

Delayed or deferred sentencing is not the same as a deferred adjudication of guilt. In controlled substances cases involving deferred adjudication, the defendant pleads or is found guilty of the offense charged, but the adjudication is not immediately entered. See MCL 333.7411(1). Instead, the court places the defendant on probation and if the terms and conditions of probation are completed successfully, the court must discharge the defendant and dismiss the proceedings against him or her. Id. Having successfully completed the term of probation imposed for the offense, no judgment of guilt is entered against the defendant. Id.

Deferred adjudication is also permitted in certain circumstances for offenders admitted to a drug treatment court or a veterans treatment court. See Chapter 9 for discussion of these specialized courts.

A.Procedural Requirements

To qualify for deferral under MCL 333.7411, the defendant must have no previous controlled substances convictions, be guilty of an enumerated offense, and consent to the deferral. See MCL 333.7411(1).

1.No Previous Convictions

A defendant must have no previous convictions for an offense listed under Article 7 of the PHC or an offense under any statute of the United States or any state related to narcotic drugs, coca leaves, marijuana, stimulants, depressants, or hallucinogenic drugs. MCL 333.7411(1).

“For purposes of this section, a person subjected to a civil fine for a first violation of section [MCL 333.7341(4)²] shall not be considered to have previously been convicted of an offense under [Article 7 of the PHC].” MCL 333.7411(4).

A conviction entered simultaneously with the charge to which a defendant seeks deferral under MCL 333.7411 is not a “previous conviction” for purposes of MCL 333.7411 and so does not render the defendant ineligible for deferred adjudication status. People v Ware, 239 Mich App 437, 442 (2000).

2.Defendant’s Guilt Must be Established

A defendant must plead guilty to or be found guilty of an offense listed in MCL 333.7411. These offenses are possession of a controlled substance under MCL 333.7403(2)(a)(v), and MCL 333.7403(2)(b)-(d); use of a controlled substance under MCL 333.7404; and possession or use of an imitation controlled substance under MCL 333.7341 for a second time. MCL 333.7411(1).

3.Defendant Must Consent to the Deferral

Deferred adjudication requires the defendant’s consent. MCL 333.7411(1).

B.Conditions of Probation

If all the requirements in MCL 333.7411(1) are satisfied, the defendant will be placed on probation, further proceedings are deferred, and no judgment or adjudication of guilt is entered. MCL 333.7411(1).

The court generally has discretion to impose any lawful term or condition on the defendant. MCL 333.7411(1). See MCL 771.3; MCL 771.3c.³ However, MCL 333.7411(1) requires the court to order payment of a probation supervision fee as prescribed in MCL 771.3c. MCL 333.7411(1). Further, MCL 333.7411(1) specifically states that the terms and conditions of probation may include participation in a drug treatment court.

Except as provided in MCL 333.7411(6), when an individual is convicted of violating Article 7 of the PHC, other than violations of MCL 333.7401(2)(a)(i)-(iv),⁴ MCL 333.7403(2)(a)(i)-(iv)⁵, the court may require the individual to attend a course or a rehabilitation program on the medical, psychological, and social effects of the misuse of drugs. MCL 333.7411(5). The court may order the individual to pay a fee, and failure of the individual to complete the course or program shall be considered a probation violation. Id.

“If an individual is convicted of a second violation of [MCL 333.7341(4)], before imposing sentence under [MCL 333.7411(1)], the court shall order the person to undergo screening and assessment by a person or agency designated by the office of substance abuse services, to determine whether the person is likely to benefit from rehabilitative services[.]” MCL 333.7411(6). The court may order an individual to participate in and successfully complete one or more appropriate rehabilitation program. Id. The individual must pay for the costs of the screening, assessment, and rehabilitative services, and failure to complete a program is considered a probation violation. Id.

C.Outcome of Probation

1.Failure to Successfully Complete the Probationary Period

The court has discretion to enter a judgment of guilt and proceed to sentencing when a defendant violates a term or condition of probation or otherwise fails to successfully complete probation. MCL 333.7411(1). However, adjudication of guilt is not mandatory. See id.

In deferral proceedings under MCL 333.7411(1), a defendant has the opportunity to successfully complete a probationary period and have the charge against them dismissed. People v Tolonen, ___ Mich App ___, ___ (2024). Ordinarily, “a trial court may modify a term of probation by either extending or discharging the term, but it must do so before the term of probation expires. If a trial court fails to extend the term of probation on or before its expiration date, then probation terminates and the trial court has no continued authority to modify it.” Id. at ___. In Tolonen, the defendant’s probationary period expired before the court unsuccessfully discharged her from probation and entered an adjudication of guilt. Id. at __. The Tolonen Court held that “the trial court maintained jurisdiction over defendant after the probationary period expired and had the authority to unsuccessfully discharge defendant from probation and enter an adjudication of guilt.”  Id. at ___. “MCL 333.7411(1) required the trial court to first determine whether defendant had fulfilled the terms of her probation during the 12-month period before it could either dismiss the charge or enter an adjudication of guilt.” Tolonen, ___ Mich App at ___. “The trial court determined that defendant had failed to fulfill the terms of her probation and, pursuant to [MCL 333.7411(1)], a guilty plea will automatically result in a conviction and sentencing upon failure by the defendant to successfully complete the program.” Id. at ___ (quotation marks and citation omitted). “To dismiss the charge despite defendant’s failure to comply with the terms of her probation would contradict the clear intent of MCL 333.7411 and grant defendant a significant benefit that she did not actually earn.” Id. at ___.

2.Successful Completion of the Probationary Period

A court must discharge the individual and dismiss the proceedings against him or her when the individual has fulfilled the terms and conditions of his or her probationary period. MCL 333.7411(1).

D.Terms of Dismissal

1.Discharge and Dismissal Without Entering an Adjudication of Guilt

Except as otherwise provided by law,⁶ a discharge and dismissal under MCL 333.7411 is not a conviction for purposes of MCL 333.7411 or for purposes of disqualifications or disabilities imposed by law for criminal convictions. MCL 333.7411(1). Additionally, the discharge and dismissal is not a conviction for purposes of the penalties imposed for subsequent convictions under MCL 333.7413. MCL 333.7411.

An individual may obtain only one discharge and dismissal under § 7411. MCL 333.7411(1).

2.Record of Deferred Adjudication

All court proceedings under MCL 333.7411 must be open to the public. MCL 333.7411(2). Generally, “if the record of proceedings . . . is deferred under [MCL 333.7411], the record of proceedings during the period of deferral shall be closed to public inspection.” MCL 333.7411(2). However, unless a judgment of guilt is entered, the Department of State Police must retain a nonpublic record of the arrest, court proceedings, and disposition of the charge. MCL 333.7411(3). This nonpublic record is open, for limited purposes as set out in MCL 333.7411(3)(a)-(c), to courts, law enforcement personnel, prosecuting attorneys, the Department of Corrections, and the Department of Human Services. MCL 333.7411(3).

An offender whose adjudication of guilt was deferred under MCL 333.7411 and whose case is dismissed upon successful completion of the terms of probation does not qualify as “not guilty” for purposes of MCL 28.243(10), and is therefore not entitled to the destruction of his or her fingerprints and arrest card. People v Benjamin, 283 Mich App 526, 527, 537 (2009).⁷