Sentencing Procedure

6.7Sentencing Procedure

A.Felony Sentencing

MCR 6.425(D) governs sentencing procedure:

“At sentencing, the court must, on the record:

(a) determine that the defendant, the defendant’s lawyer, and the prosecutor have had an opportunity to read and discuss the presentence report,^[¹]

(b) give each party an opportunity to explain, or challenge the accuracy or relevancy of, any information in the presentence report, and resolve any challenges in accordance with the procedure set forth in subrule (D)(2),

(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf,

(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence,

(iii) provide the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney, and

(iv) 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,^[²]

(d) 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,^[³]

(e) if the sentence imposed is not within the guidelines range, articulate the reasons justifying that specific departure, and

(f) 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 6.425(D)(1).^[⁴]

Restitution challenges. “Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” MCR 6.425(D)(2)(b).

See also the Michigan Judicial Institute’s Sample Felony Sentencing Guide.

B.District Court Sentencing

In a district court sentencing proceeding, the court must:

“(a) require the presence of the defendant’s attorney, unless the defendant does not have one or has waived the attorney’s presence;

(b) provide copies of the presentence report (if a presentence report was prepared) to the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, at a reasonable time, but not less than two business days before the day of sentencing. The prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, may retain a copy of the report or an amended report. If the presentence report is not made available to the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, at least two business days before the day of sentencing, the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, shall be entitled, on oral motion, to an adjournment to enable the moving party to review the presentence report and to prepare any necessary corrections, additions or deletions to present to the court, or otherwise advise the court of circumstances the prosecutor or defendant believes should be considered in imposing sentence. A presentence investigation report shall not include any address or telephone number for the home, workplace, school, or place of worship of any victim or witness, or a family member of any victim or witness, unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual. Upon request, any other address or telephone number that would reveal the location of a victim or witness or a family member of a victim or witness shall be exempted from disclosure unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual.

(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf,

(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence,

(iii) provide the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney, and

(d) inform the defendant of credit to be given for time served, if any.

(e) 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. Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” MCR 6.610(G)(1).

“The court shall not sentence a defendant to a term of incarceration for nonpayment unless the court has complied with the provisions of MCR 6.425(D)(3).” MCR 6.610(G)(2). MCR 6.425(D)(3) prohibits the incarceration of a defendant or the revocation of probation for failure to comply with an order to pay money unless the court finds on the record that the defendant can comply without manifest hardship and has not made a good-faith effort to comply. See the Michigan Judicial Institute’s Ability to Pay Benchcard for information on determining a defendant’s ability to pay.

C.Consideration of Mitigating Factors

“[T]rial courts are not required to expressly or explicitly consider mitigating factors at sentencing.” People v Bailey, 330 Mich App 41, 63 (2019) (rejecting defendant’s argument that the trial court was required to consider mitigating factors on the record and noting that the trial court nonetheless did discuss the PSIR and clearly was aware of the defendant’s diagnosed mental illness).