Articles Posted in Criminal Appeals

Whether an individual feels he or she has been wrongfully convicted for an offense involving alcohol, drugs, a sexual act, or even a violent or serious offense such as robbery or homicide, the appeals process is designed to ensure that a person’s rights are properly defended. This means that if you have been wrongfully convicted or even received a harsher sentence than what would be considered normal according to state sentencing guidelines, you may have grounds to appeal. An experienced Michigan criminal appeals lawyer can review your case to determine whether appealing your case to the Michigan Court of Appeals or the Michigan Supreme Court may be possible in your situation.

Some people have the opinion that mistakes are never made in the legal process, but they definitely are. You may have a lawyer who was simply inexperienced and thus ineffective, jurors may not have been sworn in, a prosecutor may have excluded jurors because or gender or race, evidence may have been obtained illegally. There are dozens of reasons that you may not have received a fair trial, or may have been sentenced in a way that was unduly harsh.

In most cases in Michigan, you have 42 days to file an appeal from the date of judgment. Perhaps you were found guilty of drug possession or sexual assault, and feel that the evidence to support a guilty verdict was insufficient. Perhaps new evidence has been discovered since your conviction, and that new evidence may prove your innocence. Misconduct on behalf of jurors may also be grounds to appeal. Regardless of your situation, it is important to know that the attorney you choose can make all of the difference in whether your appeal is successful. Make certain you choose a Michigan criminal appeal attorney with a proven track record and successful results in appellate matters.

You may assume that taking your case to an appellate court means that it will again be determined whether you are innocent or guilty, however this is not the case. The primary role of an appeals court is to determine whether your verdict was affected by errors made in the legal process. Depending on the seriousness of the errors made, your case may either be retried through the trial court, or your conviction may be reversed. If you were sentenced too harshly, you may be eligible for resentencing.

Continue reading

On Monday March 11, a jury found former Detroit Mayor Kwame Kilpatrick guilty of racketeering, along with 23 other charges including extortion. Racketeering and extortion are both offenses which carry maximum sentences of 20 years in prison. The public corruption trial against Kilpatrick and two co-defendants, one his father, continued over a period of five months.

Essentially Kilpatrick, his father Bernard, and Bobby W. Ferguson, a city contractor, were accused of using Kilpatrick’s position as mayor to enrich their own lives for several years through kickbacks, shakedowns, and bid-rigging schemes, according to prosecutors. The defendant’s in the case were charged with using the mayor’s office to operate a criminal enterprise according to the indictment which was filed in 2010. Prosecutors accused Kwame Kilpatrick of illegally using state grants and nonprofit funds for personal expenses, and guiding $84 million in work designated for other contractors to Bobby Ferguson through bid-rigging. According to prosecutors, Ferguson then split the proceeds with Kilpatrick.

Monday afternoon, Kilpatrick’s defense lawyer James C. Thomas vowed that he would appeal the conviction for racketeering and request a new trial. Thomas’s reaction to the conviction of his client was described as “numbing.” An article at Detroit News states that Thomas had laid the groundwork for an appeal during the trial, which took place at City Hall. Pretrial publicity, numerous rulings made prior to the start of the trial regarding the makeup of the jury, and the refusal of a judge to allow Kilpatrick to terminate his lawyer the day prior to the trial beginning are a few of the bases which may be used to appeal the conviction. Kilpatrick attempted to have the trial moved out of Michigan due to saturation in the media, claiming he could not get a fair trial, but was unsuccessful in his efforts.

Upon his conviction Kilpatrick was taken directly into federal custody and denied bond, along with Bobby Ferguson who was convicted on nine counts.

Michigan post-conviction attorneys know it is critical for individuals who have been convicted of a serious crime have a capable and aggressive lawyer to represent them in appealing their sentence or conviction. While no lawyer can guarantee a successful outcome, it is important to secure legal representation of an attorney who will thoroughly investigate your case and fight aggressively for a good outcome; experience in appellate matters makes a tremendous difference.

Continue reading

In June of 2012, Dwayne Ballinger Jr. was released from prison after a federal judge found that Ballinger’s lawyer was ineffective at trial when Ballinger stood charged with fatally gunning down two men in 2006. U.S. District Judge Arthur Tarnow found that even though Ballinger had been convicted of killing the two men for reasons related to drugs, his counsel had been ineffective in not calling Ballinger’s then girlfriend as an alibi witness. On June 21, Tarnow gave the state of Michigan 90 days to schedule a new trial. Nearly nine months later, Ballinger may find his freedom coming to an end.

Ballinger was initially sentenced to life in prison without parole for the killings. In his June federal court appearance, bizarre circumstances led to Ballinger’s arrest, followed by a quick release just 15 minutes after he was placed in handcuffs. Judge Tarnow released Ballinger on a tether, causing an uproar from the state which argued that Ballinger was a threat to relatives of the victims and witnesses.

A spokesman for the state Attorney General’s Office, Joy Yearout, said following Ballinger’s June release that an emergency appeal would be filed with the U.S. Court of Appeals because Ballinger was a clear threat to the community, and should be behind bars.

On Monday March 4, Dwayne Ballinger Jr. was denied a new trial by a federal appeals court. While the defendant was convicted of killing two men with an AK-47 in 2006, it appears that although he has been accused of threatening victims’ relatives and searching the streets for his rivals (which he denies), he has stayed out of trouble for the nearly nine months he has remained free.

Michigan criminal appeals lawyers know that errors are made in the criminal justice system. Ineffective counsel can leave innocent individuals sitting behind bars, or even those who are guilty facing harsher than usual punishment.

Continue reading

Amy Lee Black has been imprisoned since 1991 for her involvement in murdering then 34-year-old Dave VanBogelen in December of 1990. Black, who was then 16 years old, allegedly bludgeoned the victim during a robbery; her 19-year-old boyfriend at the time was said to have stabbed VanBogelen to death after Black bludgeoned him. She is considered a ‘juvenile lifer,’ and is seeking to get relief from her no-parole sentence based on a June 2012 U.S. Supreme Court decision which says that mandatory life without parole sentences applied in cases involving juveniles is unconstitutional. The problem now is whether the decision should be retroactive.

Last November, the Michigan Court of Appeals ruled that the decision by the U.S. Supreme Court was not applicable to cases which were already decided. The Muskegon County Prosecutor’s Office wants Muskegon County 14th Circuit Judge Timothy G. Hicks to deny Black’s motion for a new sentence based on the fact that in Michigan, the appeals court precedent is binding. However, the decision made by the state appeals court has now been appealed to the Michigan Supreme Court. It hasn’t yet been decided by the Court whether the appeal will be heard.

Ultimately, Judge Hicks has come to the conclusion that Black’s motion for relief can wait until the state’s high court determines whether the June 2012 decision should be retroactive.

This young woman was only 16 years old when she was sentenced to life in prison without parole; opinions on whether she should be able to appeal her sentence understandably differ between the victim’s family members and her own family. However, Michigan post-conviction attorneys understand that there are circumstances in which individuals face sentences which are extremely harsh, particularly in the case of juveniles who ultimately lose their entire future to sit in a prison cell.

Continue reading

Recently, an Ohio man who had been arrested for critically injuring a Michigan State Police trooper in a crash that occurred in 2011 had his case dismissed by Ingham Circuit Judge Rosemarie Aquilina due to insufficient evidence. Prosecutor Stuart Dunnings III will now investigate whether there may be grounds for appealing the dismissal according to news reports.

The Ohio man who was charged in the case, Mark Kollar, allegedly failed to use proper care while passing state police Trooper Drew Spencer as he performed a traffic stop on I-96 in the vicinity of Fowlerville and Webberville. Kollar allegedly struck Spencer as he was driving eastbound and lost control of his Chevrolet Malibu. Spencer recovered from a severe head injury and returned to work as a trooper in December of 2011. Kollar is said to be an attorney in the Cleveland, OH area; he is 51 years old.

The judge in the case said there is simply not enough evidence to support the felony charge of failing to use due care when passing a stationary emergency vehicle causing injury against Kollar. Although acquittals determined through insufficient evidence even when based upon an egregiously erroneous foundation cannot be appealed, Dunnings says that he will analyze the transcript from Kollar’s trial to see if there may be other legal issues that may be considered grounds for an appeal.

Michigan criminal appeal lawyers understand that while the prosecutor in this case desires to appeal in order to have an opportunity to obtain a conviction of the defendant, it also works the other way around. For instance, you may have been convicted of a crime and for any number of reasons your defense attorney may be able to have your conviction dismissed or sentencing reduced through the Michigan Court of Appeals. Mistakes are made in the legal process; innocent people are sometimes convicted of crimes they did not commit, or sentenced much harsher than what is considered normal according to sentencing guidelines.

Continue reading

Mark Abraitis, a 26-year-old Saginaw man who was convicted of murdering his girlfriend in 2011, has been denied an appeal for a new trial by the Michigan Court of Appeals. Abraitis was sentenced to life without parole, and is now serving out his sentence at the Oaks Correctional Facility in Manistee.

The defendant was charged with first-degree premeditated murder after being accused of shooting Francine Conversa-Redburn on April 25 of 2011. Abraitis appealed his sentencing, asking for a new trial based on several claims including one that he believed the evidence for a jury to determine that the murder was premeditated was insufficient. Appellate judges did not agree with Abraitis’ assertion, and denied his appeal.

According to news reports at Mlive.com, testimony indicated that Abraitis and the victim worked together at a Saginaw Township restaurant, and that they were involved in a relationship. Conversa-Redburn allegedly broke off the relationship the night before the shooting, which took place early the next morning. Testimony at the trial indicated that the defendant took the victim, who was 48 years old, from her residence to a field in Swan Creek Township along Thomas Rd. where he shot her in the head, then moved her body into a ditch filled with water and covered it with cardboard.

While Abraitis felt that the evidence was insufficient to show that the murder was premeditated, he also claimed to have inefficient counsel, saying that his attorney should have presented an insanity defense. The defendant also claimed that two autopsy photos were erroneously admitted by the judge in the case, and that his attorney, Eldor Herrmann, should have sought a change of venue and an independent psychological examination. The appellate judges disagreed with all of the claims made by Abraitis, denying his appeal for a new trial.

Michigan post-conviction defense attorneys understand that winning an appeal is not easy, and requires the expertise of a skilled and capable lawyer. Many individuals are wrongly convicted or receive sentences they feel are extremely harsh in comparison to the crime they have been accused of committing.

Continue reading

On January 30, the Michigan Court of Appeals ruled that a marijuana patient who had given another registered patient marijuana cannot be prosecuted. The issue came about when Tony Allen Green gave another patient marijuana in September of 2011 while Green was in Nashville.

Police arrested Green after it was determined he gave marijuana to Thornton, however Thornton was not arrested for receiving the marijuana. A judge in the Barry County District Court probable-cause hearing declined to consider Green’s argument; Green maintained that under Michigan’s Medical Marihuana Act, the transfer between two patients of marijuana was protected medical use. Green was subsequently charged with delivery of marijuana, his case bound over for trial. Green’s attorney surmised that he should have immunity and asked that the judge dismiss the charge on November 28 of 2011, saying that Green should be granted immunity due to the fact that “delivery” and “transfer” are considered under medical use.

Prosecutors in the case argued that Green was not Thornton’s primary caregiver, and that delivery of marijuana was only allowed between primary caregiver and patient. The Circuit Court judge determined, according to the appeals panel, that the law “entitled (Green) to a presumption of medical use, a presumption which the prosecution failed to rebut.”

Because there was no sale involved or money transferred, the appeals panel determined that the transfer of the marijuana was considered “medical use” under the medical marijuana law. The opinion of the appeals court panel was signed by justices Douglas Shapiro, Joel Hoekstra and mark Cavanagh.

Michigan criminal appeals lawyers know that there are instances in which judge, prosecutors, or other officials are not always right. Individuals may be charged with a criminal offense they did not commit, or even convicted. Sentencing may be out of the range of what is considered “normal” according to Michigan sentencing guidelines.

Continue reading

In 2010, Joshua Whittum of Eaton Rapids, who was then 20 years old, pleaded guilty to child pornography charges. The Circuit Judge in the case at the time who is now retired, Calvin Osterhaven, imposed a shorter sentence on Whittum than what was called for under state sentencing guidelines, giving Whittum a two-year sentence. According to The Lansing State Journal, the minimum penalty for this offense under state sentencing guidelines is 3 years and 9 months.

Michigan criminal appeals attorneys understand that a judge may depart from the state’s guidelines if there are clear reasons given to support the decision. According to the appeals court, clear reasons were not given by Osterhaven. On Wednesday February 20, the appeals court reached a unanimous decision and vacated Osterhaven’s sentence; this is the second time the state Court of Appeals has found that the judge “incorrectly imposed” a reduced sentence in this case.

Whittum, who is now 23 years old and in a state prison, pleaded guilty after it was discovered that he was “sexting” with five girls ages 14 to 17, allegedly exchanging nude photos with the girls. News reports also claim that Whittum encouraged some of the girls to send video or audio clips of themselves to Whittum via cell phone which were sexual in nature.

Sentencing hearing transcripts indicate that Osterhaven expressed concern about imprisoning Whittum for an extended period of time; he ultimately gave the defendant two years, saying that while he did not condone what Whittum did, the sentencing guidelines sometimes did not make sense and that in this case, he didn’t really know what justice was.

Ultimately the three-judge appeals court panel felt that Osterhaven’s reasons were too broad, and that he did not “distinguish valid from invalid sentencing considerations.” The case will now go back to circuit court, although it has not yet been determined when it will go before a new judge.

Continue reading

According to the Michigan Court of Appeals, individuals cannot be charged with a crime when they are found to be intoxicated inside their own homes and own a firearm. In 2010, former state House Speaker Craig DeRoche was charged by Novi police with possessing a firearm while intoxicated. The charge stemmed from an incident in which DeRoche was allegedly involved in a dispute with a neighbor, who called police.

Initially, the charge against DeRoche was dismissed by a district court based on the Constitution’s Second Amendment rights. The prosecutor in the case then appealed, however the dismissal of the charge was upheld by the appeals court based on an unlawful search.

According to news reports, the appeals court found that, “The government cannot justify infringing on defendant’s Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm. Accordingly, the district court did not err in finding the MCL 750.237, as applied to defendant, was unconstitutional.”

The three-judge panel cited the Second Amendment in upholding the dismissal of the charge against DeRoche, saying that he was not engaging in behavior which was unlawful. The panel also determined that DeRoche was not in possession of a handgun to be used for any unlawful purpose.

DeRoche had a history with alcohol, and in fact was found guilty in 2010 on a charge related to drunken driving. According to DeRoche has no works for Justice Fellowship, a prison reform group, and has been sober since 2010.

Continue reading

James W. Gunn, a Saginaw man convicted on charges of first-degree criminal sexual conduct in October of 2011, will not get a new trial according to news reports. Gunn was convicted by a jury in Saginaw County Circuit Court on October 12 of forcing a woman at a convenience store to drive to a school parking lot on Saginaw’s west side where he forced her to perform a sex act. He was also accused of kidnapping, but was acquitted of the charge.

A news report at Mlive.com claims that the victim was unable to identify the defendant until she came across his picture in Mugshot Magazine. The alleged incident occurred on August 1 of 2008 when the then 31-year-old woman went to the store to purchase beer, and was allegedly grabbed by the neck and forced back into her car by Gunn. The woman testified that after performing the sex act, an SUV arrived at the parking lot and the defendant then left her vehicle and sat in the SUV, which eventually left.

Gunn stated during his testimony that the alleged victim approached him while he was with two friends, asking Gunn if he knew where she could purchase crack cocaine. He alleged that after giving her directions to a crack house, she requested that Gunn drive her to the location in her vehicle. Gunn also testified that after driving to the school, he called the drug dealer repeatedly, but got no answer. He also said that the alleged victim was the one who suggested sex, and that he did not strike her as she had accused him of.

Gunn and his attorney, George C. Bush, appealed the conviction due to inconsistencies in the woman’s story, and the fact that the judge in the case would not allow the officer to be recalled to the stand regarding those inconsistencies. Gunn’s lawyer said that the woman lacked credibility because she could not recall whether her intentions in going to the convenience store was to purchase beer, or flirt with the store clerk.

Ultimately, the appeals court judges determined that the reason the victim went to the convenience store was irrelevant, and that those particular details did not apply to the sexual assault directly.

The earliest possible date for Gunn’s release from the Oaks Correctional Facility in Manistee is June 16, 2029.

Michigan criminal appeals attorneys understand that there are instances in which legal errors are made, leading to the conviction of innocent people. In other cases an individual may receive a harsher sentence than what is usual for the crime he or she is accused of committing.

Continue reading