Mimesis Law
12 December 2019

Sentencing: Perception v. Reality

Feb. 4, 2016 (Mimesis Law) — Officer William Melendez of the Inkster, MI police was sentenced for his beating of motorist Floyd Dent, supposedly receiving “up to 10 years in prison.“ Or did he?

One of the problems of reporting on sentences is that journalists tend to report only the statutory maximum, and never seem to point out that, except in extreme cases (like murder and sex crimes), serving the statutory maximum is the exception rather than the rule.

The same thing happened in the Aaron Swartz case a few years ago. As Admiral Greenfield pointed out at the time:

No, Aaron Swartz never really faced 35 years in prison. The stacking of counts happens in every case, and every federal crime has a statutory maximum, but that isn’t the way we calculate exposure. Ortiz says her office was going to recommend a sentence of six months upon a plea. Does that change a lot of minds about the risk? It should.

The same thing is true in Michigan. We’re going to go deep into the weeds and find out how Melendez actually fared in his sentencing.  Note: If any Michiganders with a pending case are reading this: don’t try this at home. I’m a trained professional, and so is your lawyer. Get her to explain this to you if she hasn’t already.

Sentencing in Michigan is governed by the Michigan Sentencing Guidelines Manual, which attempts to standardized sentencing across the state. Up until last year, they were almost mandatory (judges could deviate for “substantial and compelling reasons” that they had to put into writing); but even though they are now advisory, most judges tend to stay within the guidelines.

Here’s where it gets technical. When lawyers argue sentencing, they are not arguing for a specific sentence but rather for a sentencing range. The upper end of that range is the statutory maximum. Dent was convicted of Assault with Intent to Commit Great Bodily Harm (which carries a maximum of 10 years) and misconduct in office (which carries a maximum of five years.) It’s the lower end of the range that lawyers are arguing about. So if the guidelines say “6-23 months” on a 10 year felony, the best possible sentence is 6 months to 10 years, and the worst possible sentence is 23 months to 10 years.

In other words, it’s the minimum sentence, not the maximum sentence that is important, because most defendants are paroled at their minimum or close to it, provided nothing weird happens.

So, what was Melendez’s range? Well, to begin with, he was convicted of two counts, but the sentence is based only on the more serious one. There are exceptions to this rule, but none of them apply here. The actual number is determined by a grid, in this case for Class D Felonies. There are two axes of the grid, the horizontal axis for the seven “Prior Record Variables,” relating to the defendant’s criminal history, and the vertical axis for the “Offense Variables,” relating to the specifics of the crime itself. The further down and to the right you go, the worse the minimum range gets.grid

Examining the Prior Record Variables for “Crimes Against a Person,” we’ll assume that he gets no points for PRVs 1-6, since as a police officer he probably did not have a criminal record. He does pick up 10 points on PRV 7 for the concurrent conviction. This puts him in Column C of the grid.

The Offense Variables are more complicated, but I score the following:

OV 1: 5 points (displaying a weapon)
OV 2: 15 points (possessing a pistol)
OV 3: 10 points (bodily injury requiring medical treatment)
OV 10: 10 points (abuse of authority status)

(Note that this is my estimate based on reading the news reports. The actual score would’ve have calculated separately by the defense, the prosecution, and the court; and the judge would have ruled on any disputes at the sentencing hearing.)

None of the other 16 OVs seem to apply. That makes his OV score 40 points, which puts him in Row 4 of the grid. Cell C4 indicates that the range for Melendez’s minimum sentence is 10-23 months. (The numbers below the 23 are enhancements for habitual offenders, which presumably Melendez is not). So best case scenario, he serves at least 10 months. Worst case scenario, he serves at least 23 months.

The judge had some choice words for Melendez at sentencing, saying:

“You will pay for two things: not being an example of greatness, which I know that you are from all the letters of support, awards and commendation that you have shared with this court, and resorting to cowardly acts of barbaric behavior that led you to be convicted of these crimes,” Evans said. “I can only punish your conduct, but only you and God can change your character.”

Her sentence, though, was 13 months to 10 years. Towards the lower end of the guidelines, but the 13 is significant. Any sentence over a year is served in a state prison, not a county jail; and in the Wayne County jail defendants usually get 5 days off their sentence for every month of good behavior. That doesn’t apply in the Michigan Department of Corrections. Sentences under a year also give the judge the ability to impose alternative punishments like probation.

So what does this mean for Melendez? He’ll probably serve a little over a year in the Big House big house, which is towards the lower end of his guidelines, but still in the hoosegow. The judge didn’t punish him as severely as she could have, but she also could have gone a lot easier on him. As far as the sentencing of a first-time felon in Wayne County goes, Melendez came out significantly worse than I would have expected. But trust me, it’s pretty unlikely he’ll do anywhere close to 10 years.

You may be saying to yourself, “Self, what was the point of reading all that?” Simply this: sentencing is way more complicated than a recitation of the stat max. So the next time you read “the defendant is facing x years in prison” for large values of x, don’t believe the hype.

2 Comments on this post.

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  • Richard G. Kopf
    4 February 2016 at 5:03 pm - Reply

    Noel,

    Know you know why I just love the federal Guidelines as trumped by statutory minimums. They are incomprehensible to the ordinary schmuck. And, isn’t that the way things should work?

    All the best.

    RGK

    • Noel Erinjeri
      5 February 2016 at 11:52 am - Reply

      Judge, I’m gonna go with “no” on that one.