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City of Grand Rapids Gun Ordinance Challenged by Open Carry Group

Friday, January 11th, 2013

As a criminal defense attorney, I have seen first-hand how passionate people are about their firearms rights. Gun enthusiasts believe strongly in their Second Amendment rights, and I can’t say that I blame them.

The City of Grand Rapids, Michigan has recently been the site of a political controversy regarding the right to carry firearms. The current city ordinance–enacted decades ago–prohibits carrying in public a loaded, operable gun within the Grand Rapids city limits. This is likely in conflict with Michigan’s open carry and concealed pistol laws.

Open Carry, Inc., a group dedicated to protecting firearm rights, is challenging the legality of the Grand Rapids ordinance. Group members have shown up to recent meetings at the Grand Rapids City Hall with firearms holstered at their hips. This action outraged many people, especially in light of the recent (horrific) elementary school shooting at Sandy Hook Elementary in Newtown, Connecticut. Sensitivities are heightened nationwide as a debate about assault weapons and other firearms rages in the media.

Despite the city ordinance likely being invalid due to more recent changes in state law, Grand Rapids mayor, George Heartwell, has made it clear that he and the city commissioners do not intend to change the ordinance. Heartwell states, “Guns in public meetings knot up my stomach because they function to suppress free speech. In the heat of a public debate on contentious issues, guns have a chilling impact on citizens and city commissioners.” Heartwell says he would favor the right to free speech over the right to bear arms.

Attorneys are trained to see both sides of an argument. I can completely understand that Mayor Heartwell is concerned about the safety of his constituents. That being said, if city laws and state laws conflict, state laws control. Moreover, the Second Amendment, as part of the United States Constitution, is the law of the land. I love Grand Rapids and I have lived in West Michigan on and off for many years. However, the defense attorney in me reigns supreme and I have to lend my support to Open Carry, Inc.’s efforts.

I believe in the constitutional right to possess a firearm. That is why I help people assess whether they are eligible to apply for a firearms rights restoration. If you or someone you know is wondering how to legally possess, sell, or buy a firearm or ammunition after a loss of gun rights–whether it would be for hunting, protection, or another reason–contact Kronzek & Cronkright. I would love to have a consultation with you about this issue. I am always interested in helping others regain their Second Amendment rights.

–Stephanie M. Service

Stephanie M. Service is a criminal defense attorney at the law firm of Kronzek & Cronkright, PLLC. She is knowledgeable about Michigan’s firearms laws, including restoration of gun rights. She practices criminal defense throughout Michigan.

Posted in Firearm Charges, For Your Information, Gun Charges, Michigan State Law, Second Amendment | No Comments »

Michigan Passes Law Allowing Mandatory Minimum 25 Year Sentences for Certain Habitual Felony Offenders

Tuesday, October 2nd, 2012

Michigan Governor Rick Snyder recently signed into law a bill referred to as “VO-4,” or the “Four Strikes Law.” The law allows for certain repeat felony offenders in Michigan to be sentenced to a mandatory minimum sentence of 25 years in prison. Governor Snyder said, “By holding chronic offenders accountable we can keep our communities safe, bring peace of mind to victims and their families, and help Michigan reach its full potential.”

Clearly, the stakes are high, as nobody wants to be sentenced to a minimum of 25 years of incarceration. Therefore, it is important that defendants really have a thorough understanding of what this law entails. To that end, I will break down this new law piece by piece.

First, to qualify for this new sentencing scheme, the criminal defendant must have three or more prior felony convictions. These felony convictions can be Michigan felony convictions, out-of-state felony convictions, or even out-of-state misdemeanor convictions, provided that the criminal act would have been considered a felony offense under Michigan law. It is considered a prior felony conviction if the felon was convicted of attempt of a felony crime. Fortunately, the law was amended at the last minute to include a provision that the prior felony convictions must have been from separate criminal transactions, rather than multiple felony convictions arising from the same criminal act.

However, at least one of the prior felony convictions must have been for a “listed prior felony.” This is a legal term of art, and includes convictions for the following felonies and convictions of attempts of the following felonies:

(1) First degree fleeing and eluding causing death
(2) Second degree fleeing and eluding causing serious injury
(3) Second degree fleeing and eluding causing serious impairment of a body function
(4) Drugged or drunk driving causing death
(5) Drug crimes that are punishable by more than 4 years
(6) Arson of a dwelling house
(7) Felonious assault
(8) Assault with intent to commit murder
(9) Assault with intent to do great bodily harm
(10) Torture
(11) Assault with intent to maim
(12) Assault with intent to commit a felony
(13) Unarmed assault with intent to rob and steal
(14) Armed assault with intent to rob and steal
(15) Attempted murder
(16) First degree home invasion
(17) Second degree home invasion
(18) First degree child abuse
(19) Second degree child abuse
(20) First degree vulnerable adult abuse
(21) Second degree vulnerable adult abuse
(22) Solicitation to commit murder
(23) Escape from confinement or assault of employee during escape from confinement
(24) Carrying firearm or weapon with unlawful intent
(25) Carrying concealed weapon
(26) Second or subsequent offense of felony firearm
(27) Intentional discharge of a firearm from a vehicle
(28) Intentional discharge of a firearm at a dwelling or occupied structure
(29) Intentional discharge of a firearm at an emergency or law enforcement vehicle
(30) Second degree murder
(31) Manslaughter
(32) Death resulting from a pointed firearm without malice
(33) Kidnapping
(34) Prisoner taking another person hostage
(35) Leading, taking, carrying away, decoying, or enticing away child under 14
(36) Mayhem
(37) Felony stalking of a victim under 18 years of age
(38) Aggravated stalking
(39) First degree criminal sexual conduct
(40) Second degree criminal sexual conduct
(41) Third degree criminal sexual conduct
(42) Assault with intent to commit criminal sexual conduct
(43) Armed robbery
(44) Carjacking
(45) Unarmed robbery
(46) Inciting a riot at state correctional facility

Then, the current felony conviction must be for a “serious crime.” This is another legal term of art, and it means a conviction of one of the following felonies or a conviction of conspiracy to commit one of the following felonies:

(1) Assault with intent to commit murder
(2) Assault with intent to do great bodily harm
(3) Assault with intent to maim
(4) Unarmed assault with intent to rob and steal
(5) Armed assault with intent to rob and steal
(6) Second degree murder
(7) Manslaughter
(8) Kidnapping
(9) Prisoner taking another person hostage
(10) Leading, taking, carrying away, decoying, or enticing away child under 14
(11) Mayhem
(12) First degree criminal sexual conduct
(13) Second degree criminal sexual conduct
(14) Third degree criminal sexual conduct
(15) Assault with intent to commit criminal sexual conduct in the first or third degrees
(16) Armed robbery
(17) Carjacking

Finally, the prosecutor has to give notice to the defendant that they are asking the court to enhance the defendant’s sentence as a fourth or subsequent habitual offender. Prosecutors are not required to seek sentence enhancements for habitual offenders. However, if the prosecutor does seek a sentence enhancement, and the defendant meets all of the above qualifications, the 25 year minimum sentence is mandatory. The statute says the defendant “shall” be punished to a minimum of 25 years.

As a criminal defense attorney, I am unnerved by the fact that this new statute takes away the judge’s discretion for qualifying felony convictions. This leaves me less room to do my job if a qualifying defendant is being sentenced. Sometimes, criminal defendants have sympathetic stories that judges take into account during sentencing, even if the defendant has multiple felony convictions in his or her past. People hire attorneys to fight cases and to argue that the case should be dismissed or that sentencing should be lenient.

Of course, I can always try to negotiate with the prosecutor to not ask for sentence enhancement. But, I don’t like that the prosecutor will be able to use this law as a bargaining chip. For example, a prosecutor may have agreed to recommend a sentence of 5 years in prison before this new law. But with the law in effect, the prosecutor may now only agree to recommend a sentence of 10 years in prison, because the prosecutor is betting on the fact that a defendant would rather take a plea deal that recommends 10 years in prison than face the mandatory minimum of 25 years in prison if he or she loses at a trial.

I believe each and every criminal defendant should have their chance to argue for leniency, extenuating circumstances, mitigating facts and other considerations, rather than face automatic minimum sentencing. That is why, in my opinion, this “four strikes” law is a strike out!

Posted in For Your Information, News on Crime | No Comments »

Prosecutor’s Discretion to Plea Bargain

Tuesday, September 25th, 2012

Last month I spoke of the prosecutor’s discretion to charge a case.  This month I would like to discuss the process of plea bargaining.  No one will admit it on the record, but the criminal justice system is simply not set up to have every case go to trial.  Each judge may have hundreds of cases on his or her docket at any given moment.  These cases are derived from the prosecutor’s office, which in turn, received it cases from the various investigating police agencies within its jurisdiction.  Because these cases keep coming on a daily basis, the system is designed to have a majority of these cases (over 90%) plead out, while just fewer than 5% actually go to trial.

How, you ask, can all these cases plead instead of going to trial?  The answer is plea bargaining.  Many factors go into the prosecutor’s decision to charge and what to charge.  As mentioned last month, the primary factual basis used to charge a crime is the initial police report.  But investigations, like many other things, are not always a stagnant thing that remains for eternity.  As time goes on, witnesses change their version of what occurred, they move away and can’t be located, additional witnesses with a different version may appear, or other problems with the prosecutor’s proofs arise.

As a result of this ever evolving investigation and their objective to seek the truth, many prosecutors realize the crime initially charged is no longer the proper charge.  Thus, with the urging from a good criminal defense attorney, a prosecutor could be persuaded to reduce (or even dismiss) a charge.

On the flip side, what is the incentive for pleading?  Well, a good defense attorney will go over all of the options with you before you even entertain the thought of entering a plea.  Can the prosecutor add additional charges that will only make things worse for you?  Depending on the factual circumstances, this is always a possibility.  Has the prosecutor offered a reduced deal that simply can’t be passed up?  What are the ramifications of accepting the deal vs. going to trial?

Most judges despise trials!  They are time consuming and create havoc on the overly burdened docket.  Many judges put a great deal of pressure on the attorneys involved to resolve the case.  Often incentives within the court’s discretion are offered to facilitate this.  With that said, most judges realize some cases do go to trial if there is a genuine issue to dispute.  For example, someone claims they weren’t present and didn’t do it presents a genuine issue for the jury to decide guilt or innocence.  Other cases that offer no genuine issue to dispute are viewed as a waste of the court’s time.  Since judges have discretion (sentencing guidelines) to work within should you be found guilty, they tend to be harsher on those that have “wasted” the court’s time.  Additionally, judges tend to be harsher when “bad facts” are brought to light (such as defendant molested his 3 year old niece) this only adds to the judge’s furor when it comes time for sentencing.

There are a lot of factors that go into whether you should plead or not.  A sharp defense attorney, such as those at Kronzek & Cronkright, will present you with all of your options and assist you in weighing the pros and cons before you decide to plead to a particular charge.  I have a strong desire to see that your rights are protected and not lost in the mix.  As a former prosecutor running a docket before many judges, I have a sense of what a prosecutor’s discretion can be.  This experience is to your advantage especially when a plea to a reduced charge is in your best interest in lieu of a trial.

- Joseph Gammicchia

Mr. Gammicchia is a Criminal Defense Attorney with Kronzek & Cronkright. He is a former Oakland County assistant prosecutor, and focuses on Criminal Defense matters.

Posted in For Your Information | No Comments »

Prosecutor’s Decision to File Criminal Charges

Thursday, July 26th, 2012

In general, the prosecutor’s office receives its cases from the various police departments within its jurisdiction. The police receive a complaint from a citizen and are put into action to investigate. Sometimes it requires an immediate response, such as an armed robbery in progress. Other times a citizen may report an incident that occurred months or even years ago. Nevertheless, an officer or detective will investigate the complaint. This may include collecting evidence at the scene, taking photographs, and interviewing various witnesses. The investigation may also include attempts to interview the alleged perpetrator. Once this data is compiled, it is forwarded to the prosecutor’s office for review.

Usually, this packet of data is the prosecutor’s office’s first exposure to the alleged crime. The prosecutor eyes this case with the obligation of seeking the truth and the mindset of being able to prove their case beyond a reasonable doubt. On one end of the spectrum, the prosecutor authorizes the charges. On the other end, the request is denied. In between these two extremes lies a gray area that affords a prosecutor a great deal of discretion.

It is possible for a prosecutor to authorize on charges other than those requested by the police. As attorneys, prosecutors are legally trained to know the elements of each crime and can assess if they can prove their case beyond a reasonable doubt. There are times when a prosecutor wants more information before making a decision. This could include having the police re-interview a witness for clarification, interview additional witnesses, or have certain tests conducted on evidence.

The county prosecutor is an elected official. Most likely they made campaign promises to be extremely tough on certain types of crimes. As a result, they may take a tougher stance on a particular crime than another prosecutor would in another jurisdiction. Additionally, there are other factors that come into the decision making process such as media attention, political pressure, community pressure, or pressure from the victim. Prosecutors fear bad press and are conscious of what the local papers report on their actions.

It is worth noting that the alleged perpetrator has little or no input into the prosecutor’s decision making process. Most people are of the mindset when contacted by the police that the police will believe their version and the case will go away…not true. No matter what statements you make to the police, they will be presented to the prosecutor and could be used against you in court. This is why you need to contact an attorney right away when you feel the police are investigating you. At Kronzek and Cronkright, we go to bat for you immediately and act as an intermediary. Depending on the case, it may be prudent to present evidence on your behalf to give the prosecutor a fuller picture of what they are examining. Prosecutors have an obligation to seek the truth. Thus, when presented with evidence that is contrary to what they initially thought, they are obligated take the proper action. This could mean a reduction of the charge or even a full dismissal.

As a former police officer and assistant prosecutor, I am aware of the various factors that go into the decision making process. I have a strong desire to see that your rights are protected and not lost in the mix. My involvement in your case at the earliest possible stage ensures that your interests are represented. Furthermore, you are assured your side will be presented when it is most advantageous to your case.

- Joseph Gammicchia

Mr. Gammicchia is a Criminal Defense Attorney with Kronzek & Cronkright. He is a former Oakland County assistant prosecutor, and focuses on Criminal Defense matters.

Posted in For Your Information | No Comments »

Michigan Criminal Defense Attorneys – Entrapment in Michigan and the Federal System

Thursday, March 22nd, 2012

In December, we wrote an article regarding the entrapment defense as it relates specifically to sex crimes under Michigan law. In this article, I will discuss the general differences of entrapment under Michigan law compared to federal law as it relates to all crimes.

In general, the federal courts use what is called a “subjective test” to determine if an entrapment defense applies. This test is considerably different than the one applied by Michigan state courts, which implements the “objective test.” The difference between the objective test and the subjective test is whether or not the accused was predisposed to commit the crime. This means the federal court will inquire into a particular defendant’s predisposition to commit the crime in question.

The federal court applies a two-prong test for determining when a person has been entrapped: (1) government inducement of the crime, and (2) a lack of predisposition on the part of the defendant to engage in the crime. Under the first prong, the police can undertake clandestine operations to detect and expose consensual crimes (for example, a female officer posing as a prostitute on the side of the road). Under the second prong, the person’s predisposition is under review. If the evidence establishes that the defendant was ready and willing to commit the offense at any favorable opportunity, the defendant is deemed “predisposed” and has not been entrapped. On the other hand, if the defendant was not predisposed but was lured into committing the crime by agents of the government, the defendant has been entrapped.

In contrast, Michigan state courts apply an objective test. The objective test makes it easier for defense to establish entrapment because it is the conduct of the police that is focused on, such as investigative techniques and the procedures used to gather evidence, rather than the defendant’s predisposition to commit the crime. In the objective approach, the accused’s state of mind is a factor to be considered, but not with the weight given to it by the subjective approach.

In conclusion, it is more difficult to establish entrapment in the federal courts than it is in Michigan state courts. Not only will you have to show the police acted egregiously, you will also have to show that the defendant is not predisposed to commit the crime in question. However, in either case, entrapment is still difficult to prove. This is why you need to consult with a skilled and experienced criminal defense attorney that knows how to effectively present an entrapment defense at an evidentiary hearing or trial. A judge may suppress the evidence used against you, which could result in a dismissal of charges. Conversely, the judge may allow you present an entrapment defense if your case proceeds to jury trial.

At Kronzek & Cronkright, PLLC, our criminal defense team is well-versed in the areas of entrapment under both the state of Michigan standards and the standards applied in the federal courts. As a criminal defense attorney, and as a former Oakland County Assistant Prosecuting Attorney, I have litigated a wide variety of issues related to constitutional violations by police officers. These issues can be extremely important to our clients. If you think your rights have been violated due to entrapment or some other issue and want to retain an attorney to help you with your case, I would be happy to discuss the matter with you. Our firm represents clients in all Michigan courts as well as the Western District of Michigan and the Eastern District of Michigan.

- Joseph Gammicchia

Mr. Gammicchia is a Criminal Defense Attorney with Kronzek & Cronkright. He is a former Oakland County assistant prosecutor, and focuses on Criminal Defense matters.

Posted in Crime Defenses, Entrapment, For Your Information, Sexual Offenses | No Comments »

Michigan Criminal Law – Federal Court Rules Police Can Gain Access to Password-Protected Computer Information

Tuesday, February 21st, 2012

Ramona Fricosu, a Colorado woman, was charged with bank fraud, wire fraud, and money laundering for her part in an alleged mortgage scam. During a raid on her home, law enforcement officers seized a laptop computer. Detectives want access to documents on that computer, but the data is encrypted by a password. Prosecutors took the case in front of Federal Judge Robert Blackburn. The judge gave Fricosu until February 21, 2012 to decrypt the hard drive or face contempt of court. Ms. Fricosu’s attorney argued that she has a right against self-incrimination provided in the 5th Amendment of the United States Constitution, and therefore she should not be required to provide data on the laptop that could be used against her in a criminal prosecution. It is not known whether the Federal District Courts in Michigan will take the same position as the federal court in Colorado.

Legal scholars across the United States have debated whether password-protected information is safe from law enforcement subpoenas. Prosecutors liken computer passwords to possessing a key for a safe filled with incriminating documents. In many circumstances, a person could be legally compelled to hand over the key, even if the documents inside the safe are incriminating.

As Michigan criminal defense attorneys, on the other hand, feel computer passwords are testimonial communications that are shielded from law enforcement by the Fifth Amendment. Courts have held that contents of a defendant’s mind are protected, so an argument can be made that the password is protected, too. Whose side do you take? Do you think Ms. Fricosu should be required to decrypt the computer? Did Judge Blackburn go too far in helping the police?

Posted in Computer Rights, Contempt of Court, Fifth Amendment, For Your Information, Searches, Self Incrimination, Warrantless Searches | No Comments »

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