Victim Impact Statement at Setting Aside Conviction or Adjudication Hearings

7.8Victim Impact Statement at Setting Aside Conviction or Adjudication Hearings

A very brief discussion on setting aside convictions and adjudications as it pertains to crime victims is contained in this section. For a detailed discussion on setting aside convictions in general, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 3, and on setting aside adjudications for juveniles, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 21.

In certain circumstances, a person may apply to have a conviction set aside under MCL 780.621(1). “A copy of the application must be served upon the attorney general and upon the office of each prosecuting attorney who prosecuted the crime or crimes the applicant seeks to set aside, and an opportunity must be given to the attorney general and to the prosecuting attorney to contest the application. If a conviction was for an assaultive crime or a serious misdemeanor, the prosecuting attorney shall notify the victim of the assaultive crime or serious misdemeanor of the application under . . . MCL 780.772a^[¹] [or MCL] 780.827a.^[²] The notice must be by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under this act concerning that conviction and to make a written or oral statement.”MCL 780.621d(10).

In certain circumstances, a person may apply to have a juvenile adjudication set aside under MCL 712A.18e(1). “A copy of the application must be served upon the attorney general and, if applicable, upon the office of the prosecuting attorney who prosecuted the offense. The attorney general and the prosecuting attorney shall have an opportunity to contest the application. If the attorney general or prosecuting attorney wishes to contest an application, the attorney general or prosecuting attorney must do so not later than 35 days after service. If the adjudication was for an offense that if committed by an adult would be an assaultive crime or serious misdemeanor, and if the name of the victim is known to the prosecuting attorney, the prosecuting attorney shall give the victim of that offense written notice of the application and forward a copy of the application to the victim under . . . MCL 780.796a.^[³] The notice must be sent by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under this section concerning that adjudication and to make a written or oral statement.” MCL 712A.18e(7).

“A trial court [has] discretion to set aside an eligible conviction . . . if the circumstances and behavior of the applicant since the date of the conviction warrant setting aside the conviction and doing so would be consistent with the public welfare.” People v Butka, ___ Mich ___, ___ (2024), citing the former MCL 780.621(14).⁴ “‘[P]ublic’ within the term ‘public welfare,’ as used in former MCL 780.621(14), refers to a community at large, as distinguished from an individual or a limited class of people.” Butka, ___ Mich at ___. “[S]tatements by a victim are a factor that the court may consider when weighing whether setting aside an applicant’s conviction is consistent with public welfare.” Id. at ___ n 6 (quotation marks and citation omitted).⁵ However, “the victims speak as individuals, not as representatives of the public as a whole.” Id. at ___. “Therefore, [the Supreme Court] conclude[d] that the Court of Appeals erred by holding that the statements of two [individual victims] comprise[d] the public welfare. [The Supreme Court] also conclude[d] that the trial court abused its discretion when it denied defendant’s application to set aside his conviction.” Id. at ___ (reversing and remanding to the trial court for entry of an order in accordance with MCL 780.621).⁶

¹ MCL 780.772a provides that “[i]f a defendant applies to have a conviction for an assaultive crime set aside under . . . [MCL] 780.621 to [MCL] 780.624, and if the name of the victim is known by the prosecuting attorney, the prosecuting attorney shall give to the victim of the assaultive crime written notice of the application and forward a copy of the application to the victim. The notice shall be by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under [MCL 780.621 et seq.] concerning that conviction and make a written or oral statement. . . .”

² MCL 780.827a provides that “[i]f a defendant applies to have a conviction for a serious misdemeanor set aside under . . . [MCL] 780.621 to [MCL] 780.624, and if the name of the victim is known by the prosecuting attorney, the prosecuting attorney shall give to the victim of the serious misdemeanor written notice of the application and forward a copy of the application to the victim. The notice shall be by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under [MCL 780.621 et seq.] concerning that conviction and make a written or oral statement.”

³ MCL 780.796a(1) provides that “[i]f a juvenile applies to have a conviction for an assaultive crime or serious misdemeanor or an adjudication for an offense that if committed by an adult would be an assaultive crime or a serious misdemeanor set aside under . . . MCL 712A.18e, and the prosecuting attorney knows the victim’s name, the prosecuting attorney shall give the victim of the offense written notice of the application and forward a copy of the application to the victim. The notice shall be by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under . . . MCL 712A.18e, concerning that adjudication and make a written or oral statement.”

⁴2020 PAs 190 and 191,effective October 13, 2020, relocated the relevant “public welfare” language from MCL 780.621(14) to MCL 780.621d(13).

⁵“[Former] MCL 780.621 does not require the trial court to consider a victim’s impact statement when determining whether to set aside a conviction. That said . . consideration of a victim’s impact statement in this context is not an abuse of discretion.” Butka, ___ Mich at ___ n 6.

⁶Butka overturned People v Boulding, 160 Mich App 156, 158 (1986) to the extent that it indicated that “the statute implements a general balancing test of [its] two elements against one another.” Butka, ___ Mich at ___. Instead, the statute “indicates a two-element standard in which each element must be met.” Butka, ___ Mich at ___.