Michigan Court of Appeals Holds Drug Treatment Court Unapproved By Prosecutor Is Error

On March 17, 2015, the Michigan Court of Appeals held in a criminal case that a prosecutor's failure to approve drug treatment court on the record requires resentencing. 

In People v Baldes, Docket No. 320460, the Michigan Court of Appeals addressed an appeal by the prosecution following defendant's sentencing. At sentencing, the trial court placed defendant on probation and admitted him to a drug treatment court in lieu of jail or prison. On appeal, the prosecution argued that the trial court committed error when it placed defendant in a drug treatment court without the prosecution's explicit consent as required by law. 

The Court first recited the facts of the case.

Baldes participated in a series of home invasions in Fraser and Roseville. Baldes pleaded guilty to various charges related to the home invasions. At the plea proceeding, the assistant prosecutor indicated that Baldes was seeking admission to drug treatment court. On November 19, 2013, Baldes appeared for sentencing. The trial court noted that Baldes had been screened and was a good candidate for drug treatment court. The trial court indicated that it had not yet made a decision, but that the drug treatment court team was meeting the following day and it would discuss his case.

On November 22, 2013, Baldes again appeared for sentencing. Baldes’s pre-sentence investigation report (PSIR) indicated that the sentencing guidelines recommended a minimum sentence of 57 to 95 months’ imprisonment, but the assessor recommended a sentence of three years’ probation, subject to the conditions of drug treatment court. At the second sentencing hearing, the trial court indicated that it intended to admit Baldes into drug treatment court. The assistant prosecutor objected to admitting Baldes to drug treatment court and contended that the trial court did not have sufficient reason to depart downward from the sentencing guidelines.

The trial court determined that it did not need to articulate substantial and compelling reasons to depart downward from the sentencing guidelines in order to admit Baldes to drug treatment court, but it then stated several reasons on the record to do so, including Baldes’s age, education, potential for rehabilitation, minimal criminal record, and family support. The trial court sentenced Baldes to serve five years’ probation and a two-year drug treatment court program, which included serving 240 days in jail and successfully completing a rehabilitation program, completing a 30- to 45-day inpatient rehabilitation program on release and subsequently living in a three-quarter house with restrictions, daily support meetings for 90 days, a SCRAM tether, and intensive outpatient counseling . . .

The Court then addressed the prosecution's argument on appeal that the trial court first needed the prosecution's approval before it could place defendant in a drug treatment court.

If admission into drug treatment court would deviate from a defendant’s sentencing guidelines, the prosecutor must approve that defendant’s admission into drug court:

In the case of an individual who will be eligible for . . . deviation from the sentencing guidelines, the prosecutor must approve of the admission of the individual into the drug treatment court in conformity with the memorandum of understanding under [MCL 600.1602]. [MCL 600.1068(2).]

MCL 600.1062 provides that

. . . if the drug treatment court will include in its program individuals who may be eligible for . . . deviation from the sentencing guidelines, the circuit or district court shall not adopt or institute the drug treatment court unless the circuit or district court enters into a memorandum of understanding with each participating prosecuting attorney . . . . The memorandum of understanding shall describe the role of each party . . . .

We also conclude that we may not imply the prosecutor’s approval from the prosecutor’s failure to object before the sentencing hearing. A party’s failure to timely assert a right constitutes a forfeiture, not a waiver. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Even if we accept Baldes’s assertion that the assistant prosecutor was present at the team meeting, there is simply no record of the drug treatment court team meeting, and thus we have no record of whether the prosecuting attorney approved admitting Baldes into the drug treatment court at the team meeting, or simply failed to object. The only record is that the prosecutor was silent before the second sentencing hearing. We conclude that a prosecutor’s silence is not sufficient to constitute approval under MCL 600.1608 and does not waive the prosecutor’s right to later demand enforcement of sentencing guidelines.

In sum, we conclude that the trial court erred when it admitted Baldes into drug treatment court when doing so constituted a departure from Baldes’s sentencing guidelines and the prosecutor did not approve. It may be the best practice for a prosecutor to waive any deviation from the sentencing guidelines in writing, but an oral approval on the record at the plea, sentencing, or other hearing, would be sufficient. However, courts may not admit a defendant into a drug treatment court program when doing so departs from the sentencing guidelines and the prosecutor has not approved . . .