Domestic Violence Sentencing

I am not an angry person, but my wife and I got into an argument. Now I am facing a charge of Domestic Violence. Will I get any jail time? The numbers related to domestic violence are at an epidemic level. The Michigan State Police report over 91,000 cases of domestic violence in 2017. https://www.michigan.gov/msp/0,4643,7-123-1878_1711-10257–,00.html. This had led to a political climate where increasing penalties for Domestic Violence have continued to grow. Defendants face the prosect of going to prison for even a misdemeanor DV charge,

This hysteria can be seen in the passage of a long list of laws by the Michigan Legislature. For example, MCL 766.222 requires police agencies to adopt specific written policies for how officers handle a domestic violence call. The Legislature has made it easier for prosecutors to secure convictions, and frequently increases the penalties for domestic violence. Now, defendants face going to jail and prison for allegations what were resolved under a deferred sentence program just a few years ago.

In this blog, I will review the elements and unique aspects of Domestic Violence charges while analyzing the likely sentences in light of the Michigan Sentencing Guidelines.

Domestic Violence: Most domestic violence cases are misdemeanors, meaning they come with a maximum of up to a year in jail. A person is guilty of a misdemeanor domestic violence if “an individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household.” MCL 750.81. Thus, all that is required to secure a criminal conviction for Domestic Violence is to show the accused “assaulted” a person with whom he or she had a “domestic relationship.” In these “common” domestic violence cases, the maximum penalty is 93 days in jail and a $500.00 fine.

A slightly more extreme version of domestic violence is the charge of “aggravated domestic violence.” Under MCL 750.81a, a charge can be elevated to “aggravated” if the victim suffers a serious bodily injury and the abuser did not use a weapon nor intend to do great bodily harm. In these cases, the maximum penalty rises to one year in jail and a fine of $1,000.00.

Felony Domestic Violence: An individual who commits a Domestic Violence and has two or more previous convictions for Domestic Violence is guilty of a felony. MCL 750.81. The maximum penalty for a felony conviction for felony domestic violence is five years in prison and/or a $5,000.00 fine.

There are many other assaultive felonies that could be charged in a given domestic violence situation. For example, more severe felonies, such as Assault with Intent do Great Bodily Harm, Criminal Sexual Conduct, Felony-Firearm, and even Assault with Intent to Murder, may result from a domestic assaultive situation.

Unique Aspect of Domestic Violence Prosecution: The current political climate has created some unique circumstances in how domestic violence charges are prosecuted. The most controversial law unique to criminal prosecutions for domestic violence is found in MCL 768.27b. In essence, MCL 768.27b allows evidence of the actor’s prior conduct to show the actor has committed similar bad acts in the past. This evidence is generally not allowed to be introduced in other criminal prosecutions because of its prejudicial effect on defendants. But thanks to MCL 768.27b, prior evidence of the defendant’s assaultive behavior can be used in domestic violence prosecutions.

So we are clear, the evidence contemplated by MCL 768.27b can often lead to a criminal conviction of the accused based primarily on their record. If an accused is being prosecuted for Domestic Violence, then evidence he has been abusive to his partner — or any person with whom he has had a domestic relationship — can be used to show he or she was abusive in this case. In many domestic violence prosecutions that rely on the victim’s word versus the word of the accuser, the introduction of an actor’s prior abuse can tip the scales against defendants. The impact of MCL 768.27b makes the criminal prosecution of domestic violence considerably easier for prosecutors throughout Michigan.

Unique Aspects of Domestic Violence Sentencing: An individual guilty of a Domestic Violence may be able to plead guilty in exchange for receiving a deferred sentence. MCL 769.4a. In first-time cases where a defendant is convicted of Domestic Violence under MCL 750.81 or MCL 750.81a, the sentencing court can, with the consent of the victim and prosecutor, place a defendant on probation with a deferred sentence. Typically, these types of sentences require the offender to undergo batterer’s counseling. The real value of a deferred sentence under MCL 769.4a is that the defendant will not have a criminal conviction so long as he or she successfully completes the terms of probation.

The more serious Domestic Violence felony sentence — like any felony sentence — contains a statutory minimum and a statutory maximum sentence. All felony sentences in Michigan require the sentencing judge to use the Michigan Sentencing Guidelines to calculate an offender’s recommended minimum sentence. For example, Domestic Violence has a maximum sentence of five years. So, a representative sentence might be “1 year (statutory minimum) to 5 years (statutory maximum) in prison”.

The Michigan Sentencing Guidelines require the sentencing judge to score Prior Record Variables (PRVs) and Offense Variables (OVs) to reach a recommended statutory minimum sentence for every defendant. The PRVs evaluate the offender’s prior record by scoring points for any prior convictions. The OVs are scored for different aspects of the actual crime. Once the judge completes the scoring of PRVs and OVs, then the court looks to a table — provided by the Sentencing Guidelines – for a recommended range of sentences. While many courts will follow the Guidelines recommendation, the sentencing judge is not required to follow them at all.

To better understand how the Michigan Sentencing Guidelines operate, we will look at an example of a defendant convicted of felony Domestic Violence under MCL 750.81. The defendant was convicted because this is his third Domestic Violence conviction under MCL 750.81. The defendant hit his wife in the face, causing her to suffer a broken nose. The defendant has a prior misdemeanor juvenile conviction for vandalism.

Under the Michigan Sentencing Guidelines, the Court would calculate the defendant’s recommended sentence as follows:

The events of the Domestic Violence are scored as follows:

The result of the scoring, in this case, is that the defendant’s Guideline recommended statutory minimum sentence is derived from a sentencing grid, specifically grid “E”. In this hypothetical yet all-too-common situation, the defendant is in an “intermediate sanction cell,” which means he would be facing a minimum sentence of seventeen months: either 12 months in the county jail, or possibly even 17 months in state prison, based on the Guideline’s sentencing grid. Note that the defendant’s prior convictions form the basis of the current case being a felony and are also scored under the Guidelines. This type of “double-dipping” is another example of society’s tough stance against domestic violence.

The goal of the hypothetical is to stress how a person’s minimum sentence can quickly escalate based on relatively minor changes to the fact pattern. The change of one factor — either in the offender’s criminal record or the actual crime — can elevate a potential sentence from months in the county jail to years in prison. The difference may seem trivial, but the real-world consequence is severe. A person convicted of Domestic Violence has many opportunities to mitigate, or reduce, his time of incarceration.

Other Considerations: Besides the actual criminal sentences, Domestic Violence convictions can come with many ancillary penalties. For example, a conviction for Domestic Violence may adversely affect a person’s ability to purchase a firearm or require him to wear a tether. It can negatively affect his ability to get custody of his children or even lead to parental rights loss in certain circumstances. Domestic violence defendants and their attorneys must evaluate the complexities of these non-criminal penalties.

Summary: There has been an undeniable increase in the criminalization and punishment for those who abuse and mistreat their loved ones. If you have been charged with Domestic Violence — whether a misdemeanor or felony — the impact on your life can be extensive. You must understand the criminal penalties of your circumstances and how to defend yourself.

For those facing felony Domestic Violence, the Michigan Sentencing Guidelines will undoubtedly have a dramatic impact on your possible sentence. You must hire an attorney who understands the inner workings of the Michigan Sentencing Guidelines and how to minimize the sentence you will receive. Call Mark Satawa today! Mark can minimize the effects of your potential sentence while guiding you through the land mines created by the ever-changing world of Domestic Violence.