MCR 6.610(G) governs district court sentencing and applies to all the criminal offenses for which a district court magistrate has authority to sentence upon pleas of guilty or nolo contendere under MCL 600.8511 and MCL 600.8512a. See Section 5.2 for a detailed discussion of the offenses for which a magistrate may impose a sentence. Additionally, SCAO has prepared a chart comparing deferred judgments, delayed sentences, and traditional sentences.
1.Have Defendant’s Attorney Present
The court must “require the presence of the defendant’s attorney, unless the defendant does not have one or has waived the attorney’s presence[.]” MCR 6.610(G)(1)(a).
Note that if a district court magistrate intends to impose a jail term, an indigent defendant has a right to appointed counsel. MCR 6.610(F)(2). The magistrate has the authority to grant petitions for the appointment of counsel in a misdemeanor case punishable by imprisonment for not more than one year if authorized by the district judge. MCL 600.8513(2)(a). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4, for more information about a defendant’s right to counsel and the appointment of counsel.
2.Presentence Investigation Report
MCL 771.14 governs the creation of presentence investigation reports (PSIR). The court must provide copies of the PSIR, if one was prepared, to the prosecutor and the defendant’s lawyer, or to the defendant if the defendant is not represented by a lawyer, not less than two business days before the day of sentencing. MCR 6.610(G)(1)(b). If the report is not made available at least two business days before the day of sentencing, the party deprived of access to the report is entitled, on oral motion, to an adjournment in order to review the presentence report. Id. The prosecutor, defendant’s lawyer, or defendant if he or she is not represented by a lawyer, may retain a copy of the report. Id.
While the preparation of a PSIR is not required where the maximum sentence does not exceed one year, the court must state a “good reason” for denying a defendant’s specific request for the preparation of a PSIR. People v Shackelford, 146 Mich App 330, 336 (1985).
Committee Tip:
Because the Crime Victim Rights Act (see MCL 780.764) provides a victim with the right to submit an impact statement to a probation officer preparing a PSIR, the court should require a PSIR whenever there is a victim, unless the prosecutor and defendant (or the defendant’s attorney) agree to immediate sentencing, and the victim is present to make an oral impact statement at the sentencing hearing.
Before imposing sentence and on the record, the court must:
•“provide the defendant’s attorney an opportunity to speak on the defendant’s behalf,” MCR 6.610(G)(1)(c)(i);
•“address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence,” MCR 6.610(G)(1)(c)(ii);
•“provide the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney,” MCR 6.610(G)(1)(c)(iii);
•“address any victim of the crime who is present at sentencing or any person the victim has designated to speak on the victim’s behalf and permit the victim or the victim’s designee to make an impact statement.” MCR 6.610(G)(1)(c)(iv).
4.Sentence Imposed and Time Served
The court must “state the sentence being imposed, including the minimum and maximum sentence if applicable, together with any credit for time served to which the defendant is entitled[.]” MCR 6.425(D)(1)(d); see also MCR 6.610(G)(1)(d)(the court must “inform the defendant of credit to be given for time served, if any” before imposing sentence). Further, “if the sentence imposed is not within the guidelines range,” the court must “articulate the reasons justifying that specific departure” before imposing sentence. MCR 6.425(D)(1)(e).
At sentencing, the court must “order the dollar amount of restitution that the defendant must pay to make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.” MCR 6.610(G)(1)(e). If there is a dispute as to the amount or type of restitution, the prosecuting attorney must demonstrate by a preponderance of the evidence that the amount of the loss sustained by the victim is a result of the offense. Id.
“Unless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, a subsequent charge or sentence may not be enhanced because of this conviction and the defendant may not be incarcerated for violating probation or any other condition imposed in connection with this conviction.” MCR 6.610(G)(3).
“Immediately after imposing a sentence of incarceration, even if suspended, the court must advise the defendant, on the record or in writing, that:
(a) if the defendant wishes to file an appeal and is financially unable to retain a lawyer, the court will appoint a lawyer to represent the defendant appeal, and
(b) the request for a lawyer must be made within 14 days after sentencing.” MCR 6.610(G)(3).
This information is included on SCAO Form DC 213, Advice of Rights.
D.Rebuttable Presumption Regarding Jail or Probation Sentence
“There is a rebuttable presumption that the court shall sentence an individual convicted of a misdemeanor, other than a serious misdemeanor, with a fine, community service, or other nonjail or nonprobation sentence.” MCL 769.5(3). “The court may depart from the presumption under [MCL 769.5(3)] if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.” MCL 769.5(4).
“Unlike cases involving felony convictions, there are no sentencing guidelines that a sentencing court must consult when sentencing a person convicted of only a misdemeanor offense.” People of the City of Auburn Hills v Mason, ___ Mich App ___, ___ (2024). However, MCL 769.5(3) and MCL 769.5(4) “establish a sentencing framework for misdemeanor convictions that is similar to the framework for felony convictions and the legislative sentencing guidelines.” Mason, ___ Mich App at ___. Accordingly, “a ‘nonjail or nonprobation sentence’ imposed on ‘an individual convicted of a misdemeanor, other than a serious misdemeanor,’ pursuant to MCL 769.5(3) is a presumptively proportionate sentence, as a within-guidelines sentence is for a felony conviction.” Mason, ___ Mich App at ___ (“Just like in the context of sentencing guidelines, the district court was obligated to explain why a departure sentence of 93 days in jail was more suitable than a non-jail or non-probation sentence under MCL 769.5(3).”). “Nonetheless, under MCL 769.5(4), a court imposing a sentence for an ordinary misdemeanor conviction remains free to depart from the presumption in MCL 769.5(4) ‘if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.’” Mason, ___ Mich App at ___ (holding that the “[district] court did not adequately justify the imposed sentence,” because it “did not consider the circumstances of the offense and did not explain how its departure sentence was more proportionate than a different sentence would have been”).
E.Failure to Comply with Sentence
“If the court finds that the sentenced person has not complied with his or her sentence, including a nonjail or nonprobation sentence, the court may issue an order for the person to show cause why he or she should not be held in contempt of court for not complying with the sentence. If the court finds the person in contempt, it may impose an additional sentence, including jail or probation if appropriate.” MCL 768.5(5). If the sentenced person is found in contempt “for nonpayment of fines, costs, or other legal financial obligations, the court must find on the record that the person is able to comply with the payments without manifest hardship, and that the person has not made a good-faith effort to do so, before imposing an additional sentence.” MCL 769.5(6).