Articles Posted in Criminal Appeals

In 2012, 24-year-old Sean Michael Phillips was convicted on charges of unlawful imprisonment of his 4-month-old baby daughter. Five weeks later, Mason County 51st Circuit Judge Richard I. Cooper sentenced Phillips to 10 to 15 years in prison, the maximum sentence allowed under Michigan law. While 15 years is the maximum sentence allowed, the 10 year minimum set by Cooper in Phillips’ case “radically” exceeds the minimum according to state sentencing guidelines, which is typically about three years in prison. Phillips appealed both the conviction and sentence in July of 2012.

Phillips is scheduled to go on trial for murder in 2014; his preliminary exam is scheduled for January 9 and 10. In handing out the sentence for Phillips regarding the unlawful imprisonment charge, the judge is allowed by law to exceed the minimum sentence suggested by the guidelines when “substantial and compelling reasons” exist. In this case, Judge Cooper called the case a “worst case scenario,” as the defendant offered no information about the baby’s whereabouts after nearly a year, while circumstantial evidence indicated she may be dead. Baby Kate went missing in June of 2011 and has never been found; her mother, Ariel Courtland, reported the baby as missing.

Phillips appealed his sentence and conviction, arguing that the judge departed from sentencing recommendations without articulating a substantial or compelling reason, that the judge erred in instructing the jury, and that the prosecution failed in their efforts to prove the baby was restrained beyond a reasonable doubt. The Michigan Court of Appeals ultimately upheld both Phillips’ conviction and sentencing, writing that: “The infant was wholly dependent on others and unable to survive on her own. Defendant not only exploited the victim’s youth, but also exploited her incapacity as an infant when he separated her from her mother, left her in a location where she would not be found, and ensured that she could not communicate her predicament to others.” The appeals court agreed with the prosecution and judge in all of the arguments raised by Phillips.

Defendants who are convicted of serious or violent crimes often appeal either their conviction, sentence, or both. In order to win at appeal there must be convincing evidence that errors were made by prosecutors, a judge, or jurors, or that the defendant’s legal rights were violated in some manner. Even when it seems that strong grounds exist to have a conviction or sentence overturned, it is rare that judges on the appeals panel agree.

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In April of 2012 James Wilcox, a Coldwater resident who was 18 years old, was found guilty on four counts of first-degree criminal sexual conduct in connection with the alleged sexual assault of his cousin between 2009 and 2010, when the boy was seven years old. Wilcox was charged with five counts of first-degree CSC, but found not guilty on one count according to a news article at WTVB. In May of 2012, Wilcox was sentenced to 15 to 40 years in prison.

At the time of the allegations, the defendant’s young cousin claimed that Wilcox coerced him into sexual acts on three occasions at the defendant’s home. Wilcox, who did not testify at trial, maintained his innocence saying at his sentencing hearing “I did not touch him. I treated him like a little brother.”

Rhonda Ives, Wilcox’s defense lawyer at trial, requested a “Bill of Particulars” which detailed the alleged offenses. She said that it was not possible to determine which allegations resulted in acquittal or conviction, and which had not been tried. The Michigan Court of Appeals said that the information used at the defendant’s trial was provided in the preliminary exam.

Ives questioned the alleged victim regarding previous sexual experience at trial, however Branch County Circuit Judge Bill O’Grady said those questions were prohibited by Michigan’s Rape Shield Law. The COA agreed.

Ultimately, the Court of Appeals found that the only fault was that in scoring one sentencing guideline, Judge O’Grady was not clear that he used a “preponderance of evidence” standard, only saying that there was “some evidence” the victim had been exploited by the defendant. In the end, the defendant’s sentence may be reduced by nine months on the minimum 15 years, and 15 months off of the maximum 40 years.

While the appeals court remanded the case back to trial court to evaluate sentencing, a footnote was added saying “We note that the trial court is free to impose the same 15-point score on remand, if it is warranted; we are simply remanding for an evaluation under the proper standard.” Essentially, it isn’t likely that Wilcox’s sentence will be reduced.

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Recently, the Michigan Court of Appeals upheld the conviction and sentence of 47-year-old Robert Clinton Giamporcaro, who was accused of assaulting his girlfriend and her son in December of 2011. Giamporcaro was charged with three counts of felonious assault, and two counts each of interfering with electronic communications and domestic violence, according to news reports at Livingston Daily.

At trial, testimony revealed that Giamporcaro’s girlfriend attempted to leave the home the two shared when the defendant picked her up and threw her across a table. Giamporcaro also allegedly broke two cell phones when his girlfriend attempted to call for help, and punched her in the face repeatedly on the same evening. When the woman’s son tried to help her, the defendant allegedly picked him up by his throat and flung him into the dining room. Court documents also indicate that at one point during the altercation, the defendant took out a knife and told the two that, “Tonight, we all die.”
After being found guilty, Giamporcaro was sentenced to 58 months to 15 years in prison on the assault and interfering with electronic communications charges.

In his appeal, Giamporcaro argued that the conviction violated due process protections due to lack of sufficient evidence. He also argued that the trial court erred when the judge denied his motion for a directed not-guilty verdict.

The appeals court did not agree with the defendant’s arguments, finding that both the knife and the stool were dangerous weapons, and that the testimony of the woman and her son were proof enough for the jury to determine both victims were afraid of immediate battery.

The appeals court also ruled that in denying a direct verdict, the trial judge did not err as although it was argued there were discrepancies between the mother and son’s testimony, it was ultimately the responsibility of the jury to determine the credibility of the witnesses testimony.

There is no doubt that often times, an individual accused of assault or domestic violence is guilty; however, Michigan criminal appeals attorneys also know that much like is often the case in sex crimes, innocent people may be accused of crimes they did not commit. Relationships often result in volatile situations in which one partner alleges violence against the other when it is actually not the case.

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On Tuesday December 3, Nancy Kissel, a Michigan native, lost in her appeal efforts to have her conviction for the 2003 murder of her banker husband overturned, according to News Daily. Kissel has been convicted twice in Hong Kong for the murder of her husband, a senior executive at US bank Merrill Lynch.

Kissel who is a mother of three children allegedly drugged her husband by giving him a strawberry flavored drink laced with a sedative before using a lead ornament to club him to death in the couple’s luxury home. She has been serving a life sentence for the murder since 2005. Kissel maintains that her husband was abusive, and that she killed him in self-defense. Kissel was retried for the murder after an appeals court overturned her conviction in 2010 and once again convicted in 2011.

Kissel’s defense team said in October at the appeal that their client suffered from depression; they maintain that Kissel’s husband had physically assaulted and threatened her, and that she was in a frenzy when she attacked and killed her husband. The appeal was rejected by judge Wally Yeung in Hong Kong’s Court of Appeals. Yeung said in his ruling that “The evidence . . . is consistent with the deceased being attacked and killed when he was either unconscious or when his consciousness was impaired.”

Following her first conviction in her husband’s murder, Kissel’s conviction was overturned by the Court of Final Appeal in February of 2010, however she was retried on the charges and once again convicted. In the first appeal, the conviction was overturned based on legal errors.

Kissel allegedly had her husband’s body, which prosecutors allege was rolled up in a carpet, carried out by workmen to a storeroom.

Kissel was also alleged to have been having an affair with a man in the US whom she planned to run away with; prosecutors allege the death of her husband left her to profit by $18 million.

Appealing a conviction for murder is not a simple process; in fact, it is rare to have a conviction overturned. The key to success in appealing a conviction or sentence is having a highly experienced and qualified Michigan criminal appeals attorney who is thoroughly familiar in the appeals process.

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On Christmas Day in 2009, Umar Farouk Abdulmutallab attempted to blow up a Northwest Airlines flight as the airplane descended in Detroit. Abdulmutallab’s efforts failed, leaving him the only person injured of the 286 passengers aboard the Amsterdam to Detroit flight. Now, his defense attorney has appealed Abdulmutallab’s conviction and sentencing to the U.S. Court of Appeals for the 6th Circuit.

The defendant, who is the son of a wealthy Nigerian banker, had a chemical bomb in his underwear which was intended to blow up the airplane. Upon detonating, the bomb caused a small fire which resulted in Abdulmutallab suffering severe burns. The defendant admitted the scheme was a suicide mission. He was charged with eight criminal offenses which included conspiracy to commit terrorism, willful attempt to destroy an aircraft, and attempted use of a weapon of mass destruction. He was sentenced to four life prison terms.

The appellate court has reportedly listened to the defending attorney’s arguments, but has not yet ruled on the case. Travis Rossman, Abdulmutallab’s lawyer, contends that the sentence given his client is cruel and unusual, that the court improperly failed to order a competency exam, and that the defendant’s post-arrest confession should not have been admissible. Rossman maintains that giving his client who is just 26 years old a sentence of life behind bars is extreme, particularly considering no passengers on board the airplane other than Abdulmutallab himself were injured.

The appeals court, located in Cincinnati, heard Rossman’s arguments on Thursday December 5, although no decision has yet been made.

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In July of 2012, 23-year-old Jeffrey A. Julian II was convicted of first-degree murder in the 2010 murder of his girlfriend, 33-year-old Lynn M. Spicer. In declaring Julian guilty, Bay County Circuit Judge Harry P. Gill stated that, “I don’t think there’s ever been a crime as thought out as Mr. Julian’s intent to kill this woman.” The judge went on to say that there was absolutely no doubt Julian was guilty of first-degree premeditated murder.

Julian and his brother, Craig, allegedly killed Spicer on August 21, 2010 outside the home Jeffrey Julian and Spicer shared. The two brothers reportedly buried the victim’s body in a grave in a vacant lot adjacent to their home, which had been dug at least one week earlier according to news reports. Julian wanted to end the relationship, which began in 2009. On the pretext of having sex, the defendant lured Spicer outside their home with the intention of strangling her. Craig Julian was convicted in June of 2012 in the murder and is serving life in prison without the possibility of parole.

Jeffrey Julian appealed his conviction arguing that his Miranda rights were violated as a conversation he had with a friend in which he confessed to the murder and which was recorded for police should have been suppressed. Julian also argued that he should have been given a second independent psychiatric evaluation after asserting an insanity defense, which the trial court did not permit. Julian’s third argument with the appeals court was that he had ineffective counsel. The Michigan appeals court panel concluded that all three arguments were without merit. His conviction was upheld.

Craig Julian also appealed his conviction for aiding and abetting murder in the killing of his brother’s girlfriend; his conviction was also upheld by the appeals court in December of 2012.

Appealing a conviction for a violent crime such as murder is a complex process; as indicated above, winning an appeal is not easy, and in fact is a rare occurrence. Individuals who believe they have strong grounds to appeal a conviction or sentence must have a capable and highly experienced Michigan criminal appeals attorney to ensure the best possible chance of winning.

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In 1987, Temujin Kensu, formerly known as Fred Freeman, was convicted of fatally shooting Scott Macklem in a college parking lot. Kensu, a native of Burton, has maintained his innocence for decades, and been supported by numerous innocence groups including the Innocence Clinic at the University of Michigan.

Kensu has attempted to have his conviction overturned repeatedly, claiming that at the time the shooting occurred he was in the Upper Peninsula, hundreds of miles away. An appeals court overturned his conviction in 2010, however the U.S. Sixth District Court of Appeals upheld the first-degree murder conviction in 2012.

Prosecutors believe that Kensu killed the victim because Macklem was dating his ex-girlfriend, and Kensu was jealous. At trial, a witness claimed to have seen the defendant drive away from the scene of the crime, however it was determined at a later date that the witness had been hypnotized and gave a wrong license plate number.

In this latest effort to have his conviction overturned, the Michigan Supreme Court has ordered a hearing be held by a judge so that police photos which were used to identify Kensu as a suspect in the case may be reviewed.

In a 2010 interview with The Flint Journal, Kensu said that every single person who had reviewed his case concluded that he did not commit the murder, that there is no evidence and no witness.

The state’s Supreme Court has ordered that an evidentiary hearing be conducted in St. Clair County Circuit Court. At issue is whether Kensu’s defense team had the opportunity to review original police lineup photos prior to those photos being made into trial exhibits for the jury. The issue of the lineup photos was addressed by the Court of Appeals in 2012, however the Supreme Court ruled this should have been discussed in trial court, according to St. Clair County Prosecutor Mike Wendling.

Time will tell whether Kensu ultimately has his conviction overturned and gets released from prison, where he has been incarcerated for nearly 27 years. Michigan criminal appeals attorneys know that there are cases in which the real truth is never known; however, when an individual who is innocent spends decades behind bars, it is a tragedy.

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When convicted of a criminal offense such as armed robbery, murder, breaking and entering, or even drug manufacturing or distribution, you may feel you have been wrongly convicted, or that the sentence you received was excessive. Errors are made in Michigan courts, and you may have grounds for appeal. There are some common questions often asked by those considering appealing a verdict or sentence to the Michigan Court of Appeals, including the following.

Should or can I appeal? The simple answer to can you appeal is yes; however the answer to whether you should appeal is a bit more complicated. Did the trial court err, and is an appeal warranted (in other words, do you have strong grounds for appeal)? This is something a criminal appeals attorney can help you decide.

Can I appeal my conviction/sentence without an attorney? While you have the legal right to represent yourself in an appeal, be aware the process is highly complex and risky. You have a much better chance of winning on appeal if you have an experienced lawyer to represent you.

Can I use the attorney who represented me at trial for the appeal? It all depends. Some criminal defense attorneys are skilled and experienced in the criminal appeals process, while others are not. Your criminal defense lawyer may be one of the best in Michigan, however the appeals procedure is an entirely different animal from the criminal justice process. When you are the defendant in a trial, your attorney’s command of the courtroom and ability to connect with jurors may impact whether your case is won. In the appeals process, it’s an entirely different battle which is fought for the most part on paper. Ultimately, you must have a lawyer who is skilled and effective in crafting a compelling and persuasive brief that clearly communicates the situation to the appellate judges.

Is the appeals process lengthy? It certainly can be. Generally speaking, it takes approximately 18 to 24 months from the initial filing for an appeal to be completed. However, there are many factors that determine how long the process will take.

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In December of 2012, Joseph Gentz pleaded guilty to second-degree murder in the January 2012 strangulation death of Jane Bashara. Bashara’s husband, Bob Bashara, allegedly threatened Gentz and offered him money to kill his wife.

According to news reports at the Detroit Free Press, Gentz did not fully understand the plea of second-degree murder he was entering into. Appellate attorney Phillip Comorski who was appointed to represent Gentz filed a document with the appeals court regarding a letter written to the Wayne County Circuit Court which indicated “certain conditional promises associated with the plea were not fulfilled by the prosecutor.”

Ultimately, the document filed with the appeals court indicated that the trial court failed to address the claims of Gentz’s letter adequately, and that a post-conviction hearing was conducted by the trial court without the presence of the defendant’s appellate lawyer.

Throughout the murder trial, Gentz was represented by another attorney who explained to Gentz that by withdrawing his plea, he would once again face potential life in prison for a conviction on first-degree murder charges. Gentz allegedly has an IQ level considered below average, but he was found to be mentally competent to stand trial on the murder charge.

Comorski appealed Gentz’s conviction toward the end of September; approximately one month later, prosecutors responded by arguing that the appeal of the defendant’s conviction should be denied. Gentz was originally sentenced to 17 to 28 years in prison. Prosecutors filed a document with the Michigan Court of Appeals arguing that Gentz cannot challenge his plea on appeal without moving to withdraw the plea in trial court on the same grounds.

News articles indicate that Gentz appeared at a July 17 hearing with Reed, requesting to withdraw his guilty plea in front of Wayne County circuit Judge Vonda Evans. Prosecutors argued that Gentz expressed no dissatisfaction with the representation Reed provided him at that time. Comorski asked that a proper hearing in front of the judge be held so that he can determine whether other considerations were offered to his client which were not followed through on by Reed.

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In March of 2012, Lorenzo Donnell Relerford was convicted by a jury of armed robbery, first-degree felony murder, and unlawfully driving away an automobile in connection with the murder of Jeanne Hank. Relerford, a Flint resident, allegedly strangled the victim, who was the sister of a Genesee County Sheriff’s deputy, in 2011. Following his conviction, Relerford was sentenced to life in prison by Genesee Circuit Judge Archie Hayman.

Relerford appealed his conviction, arguing that his right to a fair trial was violated because during the murder trial jurors saw that his legs were in shackles. During the trial, the defendant was called to testify; he stood up and made his way toward the witness box, without waiting for the judge to remove jurors from the courtroom so that he could get behind the witness box without jurors seeing the shackles. The judge claimed that courtroom security decisions are left up to the county sheriff, and that he had not been notified that Relerford was shackled. The defendant’s attorney called for a mistrial immediately, however Hayman denied the request. Typically, jurors never see a defendant in leg shackles.

Judge Hayman said that he believes jurors are not influenced by whether a defendant is in leg shackles, and that they generally try to be fair. He went on to say that the evidence against Relerford was “overwhelming,” an opinion prosecutors agreed with. However the appeals court did not agree, saying that while the evidence was persuasive, it was not sufficient to prove the defendant’s guilt beyond a reasonable doubt. DNA evidence presented at trial on a bathrobe belt which was allegedly used to strangle the victim included that of two other individuals in addition to Relerford’s.

Ultimately, the Michigan Court of Appeals overturned Relerford’s conviction on November 19, ruling that his right to a fair trial was violated. David Leyton, Genesee County Prosecutor, said that the matter may have to be retried, and that the Prosecutor’s office is considering an appeal of the appeals court’s decision to the Michigan Supreme Court.

Michigan post-conviction attorneys realize that while it may seem that your fate has been sealed when convicted of a violent crime such as murder, this is not necessarily the case. Mistakes may be made by prosecutors, juries, and even judges. All individuals have the right to a fair trial when accused of any crime, including murder.

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