Criminal Sexual Conduct - What if I Have.a Prior CSC?

If you are facing Criminal Sexual Conduct charges in Michigan, it can be an uphill battle, but we're here to help. At Prain Law, PLLC we specifically concentrate on defending those accused of CSC in Michigan. Here, we take a look at some of the issues a person may face if they are currently charged with Criminal Sexual Conduct in Michigan, and who also has a prior CSC conviction, either because of a plea or having been found guilty at trial, even if it was in another State.

But first, let's just be clear that this overview isn't about judging anyone. As great as our criminal justice system is, the sad reality is that truly innocent people are wrongfully convicted. This happens for many reasons not only at trial, but often times, innocent people even plead guilty for fear that if they are wrongfully convicted at trial, their penalty will be even worse, and it's a legitimate concern.

These things are especially true when the charge is something as socially controversial as Sexual Assault allegations, and it's exactly why we encourage you to hire the best Michigan Criminal Sexual Conduct Attorney for your defense, rather than a "general practice" Criminal Defense Attorney. In-fact, one an innocent person either woefully takes a plea deal or is wrongfully convicted by a jury, that CSC conviction can be seen as a giant "target" on their back to a manipulative, opportunistic would-be future accuser. The fact of a prior conviction simply doesn't tell the whole story.

Moving past the issue of unjustified pre-judgment, it is nevertheless a fact that under Michigan law, a person with a prior conviction for Criminal Sexual Conduct who now faces a new Criminal Sexual Conduct charge has some unique challenges, and those challenges can include some of the issues addressed below.

"OTHER ACTS" EVIDENCE AT TRIAL

Most people think of the effect of a prior conviction upon a current case in terms of a more severe sentence being imposed. But there is no sentencing unless and until there is a conviction, and the whole point of having a top-notch Michigan Sex Crimes Defense Attorney is to avoid any conviction altogether.

But having a prior CSC when you're facing a current CSC doesn't just affect the possible sentence you could receive (again, if you are convicted), but it is equally important to consider how it would affect the evidence that would be heard by a jury if you take your current case to trial. That's right, not only will your jury hear the Prosecution's evidence on the current charge, but they may also hear evidence about alleged acts of CSC involved in the older case. As a matter of fact, it is possible that the jury could hear evidence of a prior alleged CSC, even if there were never any criminal charges!

We've written at length about this before it is complicated, and a full explanation is beyond the scope of this article. But these situations break-down into two main categories:

  • Cases where you are accused of Criminal Sexual Conduct upon a minor, and the Prosecution wishes to present evidence that you allegedly committed CSC upon another minor in the past (even if there were no charges before), in which case the main controlling law is MCL 768.27a; and
  • Cases where you are accused of Criminal Sexual Conduct upon an adult, and the Prosecution wishes to present evidence that you allegedly committed CSC upon another person (again, even if no charges before), in which case the main controlling law is Michigan Rule of Evidence ("MRE") 404(b).

In either case, this type of evidence is referred to as "Other Acts," evidence, and there are many rules governing how the Prosecution must notify the accused in advance of trial if they intend to produce "Other Acts" evidence, the right of the Defense to object, and special rules and Jury Instructions used at trial if this evidence is ultimately allowed by the Court.

MANDATORY 5 YEAR MINIMUM SENTENCE

Michigan has a special Criminal Sexual Conduct law that imposes a 5-year mandatory minimum sentence for certain persons who already had a previous CSC conviction on their record at the time they are sentenced on a current CSC charge, depending on what Degree of CSC both the current and prior conviction were for. This law, MCL 750.520f, reads as follows:

(1) If a person is convicted of a second or subsequent offense under section 520b, 520c, or 520d, the sentence imposed under those sections for the second or subsequent offense shall provide for a mandatory minimum sentence of at least 5 years.

(2) For purposes of this section, an offense is considered a second or subsequent offense if, prior to conviction of the second or subsequent offense, the actor has at any time been convicted under section 520b, 520c, or 520d or under any similar statute of the United States or any state for a criminal sexual offense including rape, carnal knowledge, indecent liberties, gross indecency, or an attempt to commit such an offense.

To understand this, one must know what those "section" numbers mean; they refer to certain Michigan Degrees of CSC. For example, "section 520b" means Criminal Sexual Conduct 1st Degree under MCL 750.520b, and so on.

What this law means in plain English is that if a person is now facing sentencing for a current conviction for Criminal Sexual Conduct 1st Degree, Criminal Sexual Conduct 2nd Degree, or Criminal Sexual Conduct 3rd Degree, they'll be sentenced to at least 5 years in Prison, regardless of whether their Sentencing Guidelines are less, if they've already been convicted of certain offenses (either in Michigan or the equivalent from another State), including:

Notably missing from this law is Fourth Degree Criminal Sexual Conduct, MCL 750.520e.

INCREASED SENTENCING GUIDELINES RANGE

Normally, with the exception of the above special Michigan law substituting a 5 year mandatory minimum, a person's sentence for Criminal Sexual Conduct would be presumptively determined by their Sentencing Guidelines, a mathematical calculation taking into account "points" for previous criminal history (called Prior Record Variables, or "PRVs"), as well as points for the specific factual allegations in the case (called Offense Variables, or "OVs").

Once all of the PRV‘s and OV‘s are totaled up, they go onto a “sentencing grid“ and arrive at a square that represents a certain number of months. For example, "36 to 60 months" would be a common sentencing guideline range for Third Degree Criminal Sexual Conduct.

This range of months represents the presumptive minimum sentence, but the Judge has the power to deviate from this range under certain circumstances. Assuming the judge does not deviate from this range, the Judge picks a number of months within that range, and that is the minimum sentence that someone must serve.

For example, if the Judge picks a number close to the middle of the range, which they often do, the sentence sounds like this “I order you to serve 48 months to 15 years with the Michigan Department of Corrections." When the first 48 months are served, the first Parole hearing takes place. The person can either be granted or denied Parole, perhaps several times over, all the way up to the statutory maximum sentence – for example, 15 years for CSC 3rd Degree.

If you have a prior conviction, what you need to understand is that because that prior conviction factors into the PRV‘s, it will likely ultimately push the guidelines range for the minimum sentence upward. Still, every individual case needs to have the sentencing guidelines scored individually.

HABITUAL OFFENDER SENTENCING STATUS

Whereas the guideline range addresses theminimum sentence, Habitual Offender status affects both the minimum guideline range and the maximum sentence.

For example, if your guideline range is 36 to 60 months, up to 15 years, but you have a prior Criminal Sexual Conduct conviction, you could be charged as an Habitual Offender. If the Prosecution intends to do so, they have to give notice in writing to you within 21 days of the Arraignment on the Information ("AOI") in Circuit Court.

Sticking with our example of a person charged with Third Degree CSC in the above example, where the guidelines would normally be at the 36 to 60 month range, now let’s also assume that this person also has a prior conviction for First Degree Criminal Sexual Conduct. Therefore, the Prosecution files an Habitual Offender Notice. This takes that original guideline range of 36 to 60 months and increases the upper limit of that number, so that the guideline range for the minimum sentence may now be 36 to 75 months.

Not only that, but if the person is charged as an Habitual Offender, the maximum sentence is no longer 15 years, but the Court can sentence them to up to 22.5 years in the case of a Second Habitual Offender. But for a person with more than one prior felony conviction for CSC or otherwise, the upper limit continues to increase to up to life.

Of course, a short list like this is only designed to give you an idea of what issues may exist if you already have a prior conviction for Criminal Sexual Conduct. For specific advice about your particular case, contact Prain Law, PLLC at (248) 731-4543 or via email using our Contact Form.

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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.