In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine.
Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.
Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.
Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.
In late August, our office won a 6.500 appeal that we had been working on for years. In People v Armijo, the Court of Appeals found that the Defendant was denied his right to effective assistance of trial and appellate counsel when neither attorney investigated his defense. We believe that our client is innocent and are delighted with the ruling. It is a must read for anyone working a 6.500 motion because it shows that the deference afforded to trial counsel or appellate counsel’s strategic decision does not require blindness. The Court took a hard look at the proffered strategic decision.The prosecutor was upset with the ruling and appealed the ruling to the Michigan Supreme Court. It took them only four days to turn down the prosecutor’s request. I’ve never seen anything like it. The Court didn’t even give us time to file an answer before turning it down.