Felony Charges

A felony charge is a life-changing event. With so much at stake, knowledge is power. Below is a description of the law and procedure on felony charges.

What is a Felony?

A felony is a crime that is punishable by over one year in prison. A felony is more serious than a misdemeanor, which is a crime punishable by up to one year in jail.

Common felonies include;

  • Home Invasion
  • Operating While Intoxicated – Third Offense
  • Theft Offenses
  • Felonious Assault

A Felony is Defined by the Maximum Punishment

Felonies are classified by the maximum punishment a person could receive with a conviction. For example, the felony of carrying a concealed weapon is punishable by up to five years in prison. The crime home invasion first-degree is punishable by up to twenty years in prison.

Felony Sentencing

What punishment could you receive if convicted of a felony? The answer depends on many factors. A possible sentence could be probation, jail, or prison time, or a combination of jail and then probation.

The possible sentence depends on the person’s prior criminal history and the details of the crime charged.

A person going to prison will receive a minimum sentence and a maximum sentence. The earliest release date from prison would be the minimum sentence. A person not released at the earliest opportunity would be eligible for parole at periodic points before reaching the maximum sentence.

What Happens Once I’m Charged With a Felony?

The felony process starts with an arraignment. An arraignment is the formal starting point of the court process. The judge will inform you of the charges and set bond and bond conditions.

The arraignment can come about in one of two ways.

First, a person is arrested after an alleged crime and arraigned right after the arrest. Second, the police obtain a warrant after an investigation, and you are then arrested or turn yourself in.

Where a client informs us of an investigation, we would arrange to accompany the client to court for the arraignment. This prevents a potential arrest during a police interaction or an arrest at your home.

The felony court process begins at the district court level. In Washtenaw County, all felony cases begin at the 14A-1 Court Service Center at Washtenaw and Hogback.

In other counties such as in Wayne and Oakland, the felony process would begin at the district court in the jurisdiction the alleged offense was committed. For example, your case would start in the 35th District Court in Plymouth if you were arrested in Plymouth.

Defense Investigation and Discovery

The defense attorney will begin an investigation of the case as soon as possible. We would file Freedom of Information Act requests with all police agencies involved and request discovery from the prosecutor’s office. An evaluation of the case for strengths and weaknesses will be necessary for potential challenges or plea bargain negotiations.

Probable Cause Conference

The first court hearing is called the probable cause conference. This hearing is an opportunity for the defense attorney and prosecutor to see if there will be an early resolution of the case in the form of a plea bargain.

Preliminary Exam

The preliminary examination (Exam) is the second step of the court process. An Exam is like a mini-trial. The legal point of the Exam is for the Court to determine if there is probable cause that a felony was committed and that you are the one who committed the crime.

The prosecution’s burden is low. Basically, the prosecution must prove it is more likely than not that a crime was committed. At the trial, the prosecution must prove the crime was committed beyond a reasonable doubt.

You have the choice to either hold the Exam or waive the Exam. The decision to waive the Exam should only be made after careful consideration.

There are many advantages to the Exam despite the prosecution’s low burden of proof and odds of winning.

Advantages of Holding the Preliminary Examination

First, the Exam is a potential discovery tool. The Exam gives the attorney a chance to question police officers and witnesses. This questioning will produce much better information than what is in the police reports.

The Exam must be held if the client wishes to go to trial. Obviously, if you intend to go to trial then you cannot pass up the opportunity to question the witnesses before the actual trial.

Second, the Exam could show the prosecution the weaknesses of the case. For example, you could reveal a witnesses’s faulty memory through cross examination. Or the victim/complainant could reveal credibility issues. Such Exam results could convince a prosecutor to offer a better plea bargain resolution.

Third, the Exam could result in lesser charges. For example, you could be charged with possession with intent to deliver a controlled substance. At the Exam, it may turn out there is insufficient evidence of drug dealing. This could result in reducing the potential charge to simple possession of a controlled substance.

Fourth, you never know. Many prosecutors are unwilling to offer reductions or plea bargains in felony cases. In these situation, the preliminary examination should be run. Witnesses may fail to show. Stories change. Where there is nothing to lose you may have everything to gain.

Possible Outcomes of the Preliminary Examination

The case will proceed in circuit court if the judge finds probable cause the crime was committed. This is called a “bindover.”

Where the judge finds no probable cause a crime was committed, the case could remain in district court as a misdemeanor or be dismissed.

Pre-trial Proceedings in Circuit Court

The case sort of starts over in circuit court at this point. The defense attorney and prosecutor may resume a conversation about resolution. Sometimes a resolution is not desired by the defendant or possible. The case would then be challenged proactively by the defense.

Plea Bargain Resolution

The case may resolve with a plea bargain before trial. A plea bargain is where a person admits guilt in exchange for a benefit in return.

For example, a person might plead guilty in exchange for a reduction in the severity of the charges. Let’s say a person charged with home invasion first-degree might pleads guilty to home invasion third-degree. This would change the severity of the crime charged from a twenty-year felony to a five-year felony.

Or a person might plead guilty with a Killibrew Agreement, which is an agreement with the prosecutor that the defendant will receive a particular sentence.

A favorable plea bargain in felony cases is a deal where the felony is dismissed and the person pleads to a misdemeanor offense. This could keep the case away from circuit court in the first place. A plea to a misdemeanor would eliminate the possibility of prison time.

In many cases we can ask the judge to tell us what the sentence will be if you plead guilty. The judge is then bound to sentence you to whatever sentence the judge described. You may withdraw your plea if the judge later changes his or her mind. This promise by the judge is called a Cobbs Agreement.

Pre-trial Motions

Where appropriate we will file pre-trial motions. A motion is an argument of law made to the judge.

A common pre-trial motion would be a Motion to Quash the Bindover of the preliminary exam. A Motion to Quash argues there were insufficient legal grounds to find there was probable cause a crime was committed.

Another common pre-trial motion is a motion seeking to suppress evidence. For example, let’s say a case involved a questionable traffic stop. A potential challenge would be to argue the police had no grounds to pull the car over. Any evidence from that stop could be suppressed if the judge agrees there were no grounds to pull the car over.

The idea behind a pre-trial motion is to gain a strategic advantage over the prosecution. Any blow to the prosecution’s evidence results in an advantage to the defense.

The defense’s goal is to maximize your position before you reach trial. A solid motion will be built on the testimony obtained at the preliminary examination combined with legal research.

Trial

At a jury trial in circuit court, a jury of 12 people will decide your case. This is in contrast to a misdemeanor trial, where a jury of 6 people will decide your case.

At trial, the prosecution must prove a crime was committed beyond a reasonable doubt to prevail. A defendant is presumed innocent unless proven guilty.

The choice of going to trial is completely in the hands of the defendant. The defense attorney does not make this decision. The defendant must make the choice to plea or go to trial. The defense attorney’s job is to provide the defendant with all the necessary information to make this decision, and then to carry out the defendant’s decision.

A complete win at trial means you walk away. A loss at trial means there will be a sentencing hearing.

Sentencing

Following a loss at trial or a plea bargain there will be a sentencing hearing. A sentencing hearing is where the judge will tell you what the punishment will be.

As stated above, a possible sentence could be probation, jail, or prison time, or a combination of jail and then probation.

The Felony Sentencing Guidelines determine the potential punishment.

There are two factors going into the felony sentencing guidelines. The two factors are a person’s prior criminal history and the details of the crime charged.

A person going to prison will receive a minimum sentence and a maximum sentence. The earliest release date from prison would be the minimum sentence. A person not released at the earliest opportunity would be eligible for parole at periodic points before reaching the maximum sentence.

There are sentencing considerations based on whether sentencing comes after a plea bargain or trial. Felony sentencing is complicated. Consultation with an attorney is necessary to determine the appropriate guidelines at the outset of the case.

At the sentencing hearing two things will happen.

First, you and your attorney have a chance to address the judge. This is chance to present the judge with any mitigating circumstances or apologize to anyone hurt from your actions. Sometimes a defendant is in the position where the outcome at sentencing is unknown. The words to the judge can make a difference.

Second, the judge will want to know if any changes are necessary to the pre-sentence investigation (PSI) report prepared for sentencing. The PSI is a document prepared for the judge which contains information about you, your background, and the offense. The attorney must correct any errors, especially in the scoring of the sentencing guidelines.

Contact Us

The above article is an overwhelming amount of information – and not nearly complete on any one of these topics.

Call us to set up an initial consultation in which we will discuss your case and the law in a straightforward manner.

Call 734.883.9584 to speak with criminal defense attorney Sam Bernstein

Call Sam Bernstein at 734.883.9584 or at bernstein@arborypsilaw.com.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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