EMBEZZLEMENT: VULNERABLE ADULTS S.B. 455, 459, & 465:
SUMMARY AS ENACTED
Senate Bill 455 (as enacted) PUBLIC ACT 169 of 2012
Senate Bill 459 (as enacted) PUBLIC ACT 172 of 2012
Senate Bill 465 (as enacted) PUBLIC ACT 168 of 2012
Sponsor: Senator Tory Rocca (S.B. 455)
Senator Judy K. Emmons (S.B. 459)
Senator Dave Hildenbrand (S.B. 465)
Senate Committee: Families, Seniors and Human Services
House Committee: Families, Children, and Seniors
CONTENT
Senate Bill 459 amended the Michigan Penal Code to prescribe enhanced felony penalties for embezzlement of a vulnerable adult if the money or property used or obtained has a value of $50,000 or more. The bill also revised a prohibition against fraudulently obtaining a signature, by deleting references to certain financial documents.
Senate Bills 455 and 465 amended the Code of Criminal Procedure to include the enhanced felony penalties enacted by Senate Bill 459 in the sentencing guidelines.
The bills took effect on June 19, 2012. Senate Bills 455 and 465 were tie-barred to Senate Bill 459.
Senate Bill 459
Enhanced Penalties
The Penal Code prescribes penalties for a person who, through fraud, deceit, misrepresentation, or unjust enrichment, obtains or uses or attempts to obtain or use a vulnerable adult's money or property to benefit himself or herself, knowing or having reason to know that the other person is a vulnerable adult.
The Code includes a graduated sentencing structure that imposes more serious penalties for greater values of money or property or for repeat convictions. Previously, the penalties were as shown in Table 1. In all cases, the maximum fine is the amount specified or three times the value of the money or property used or obtained, or attempted to be used or obtained, whichever is greater.
Table 1
|
Value of Money or Property |
Offense |
Maximum Sentence Fine Imprisonment |
|
|
Under $200 |
Misdemeanor |
$500 |
93 days |
|
$200 or more but <$1,000; or <$200 + 1 or more priors |
Misdemeanor |
$2,000 |
1 year |
|
$1,000 or more but <$20,000; or $200 but <$1,000 + 1 or more priors* |
Felony |
$10,000 |
5 years |
|
$20,000 or more; or $1,000 or more but <$20,000 + 2 or more priors* |
Felony |
$15,000 |
10 years |
|
* For purposes of this sentence, a prior conviction does not include a conviction for a violation or attempted violation involving money or property valued at less than $200. |
|||
Under the bill, the first three levels of the penalty remain the same. The greatest penalty previously available, however, applies to a violation in which the value of the money or property is $20,000 or more, but less than $50,000 (or the lower amount with prior convictions, as shown in Table 1). Also, the graduated sentencing structure includes two new levels of penalties for greater values of money or property, as shown in Table 2.
Table 2
|
Value of Money or Property |
Offense |
Maximum Sentence Fine Imprisonment |
|
|
$50,000 or more but <$100,000; or $20,000 or more but <$50,000 + 2 or more priors* |
Felony |
$15,000 |
15 years |
|
$100,000 or more; or $50,000 or more but <$100,000 + 2 or more priors* |
Felony |
$50,000 |
20 years |
|
* For purposes of this sentence, a prior conviction does not include a conviction for a violation or attempted violation involving money or property valued at less than $200. |
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Under the Code, the values of money or property used or obtained or attempted to be used or obtained in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total value of money or personal property used or obtained or attempted to be used or obtained. If the scheme or course of conduct is directed against only one person, however, no time limit applies to the aggregation of values.
"Vulnerable adult" means one or more of the following, regardless of whether the individual has been determined by the court to be incapacitated:
-- An individual, 18 years old or over, who, because of age, developmental disability, mental illness, or physical disability, requires supervision or personal care or lacks the personal and social skills required to live independently.
-- A child placed in an adult foster care family home or an adult foster care small group home pursuant to the child care licensing act.
-- A vulnerable person, 18 years old or over, who is suspected of being or believed to be abused, neglected, or exploited.
Fraudulently Obtaining Signature
Under the bill, it is a felony, punishable by up to 10 years' imprisonment and/or a maximum fine of $5,000, for a person fraudulently to obtain the signature of any individual with the intent to cheat and defraud that individual. Previously, that penalty applied to a person who obtained the signature of another individual, by representing that he or she was the agent of any person, company, firm, or corporation or by any other means, with the intent to cheat and defraud the individual, to any promissory note, bill of exchange, due bill, order, contract, or any paper writing.
Senate Bills 455 & 465
Previously, under the Code of Criminal Procedure, embezzlement of $20,000 or more (or of $1,000 to $20,000 with prior convictions) by a person in a relationship of trust with a vulnerable adult was a Class D property felony with a statutory maximum sentence of 10 years. Under the bills, that sentencing guidelines designation applies to embezzlement of $20,000 to $50,000 (or $1,000 to $20,000 with prior convictions).
The bills added sentencing guidelines designations for the enhanced penalties enacted by Senate Bill 459, as shown in Table 3.
Table 3
|
Felony |
Class & Category |
Statutory Max. Sentence |
|
Embezzlement of $50,000 to $100,000 (or $20,000 to $50,000 with priors) from a vulnerable adult |
C – Property |
15 years |
|
Embezzlement of $100,000 or more (or $50,000 to $100,000 with priors) from a vulnerable adult |
B – Property |
20 years |
The bills also revised the sentencing guidelines descriptions for the felonies of embezzlement from a vulnerable adult, by deleting the references to a person in a relationship of trust with a vulnerable adult. Under the bills, the descriptions instead refer to embezzlement from a vulnerable adult.
In addition, Senate Bill 455 revised the sentencing guidelines description for the felony of fraudulently obtaining a signature. Previously, the description referred to obtaining a signature to a financial document with intent to defraud. Under the bill, the description refers to obtaining a signature with intent to defraud. (The offense is a Class E property felony, with a statutory maximum penalty of 10 years' imprisonment.)
MCL 777.16i & 777.16o (S.B. 455)
750.159g et al. (S.B. 459)
777.16i (S.B. 465)
Legislative Analyst: Patrick Affholter
FISCAL IMPACT
The bills will have an indeterminate fiscal impact on State and local government. To the extent that the new felony penalties lead to an increase in incarceration, the State and local units of government will incur additional costs. Local governments incur the costs of incarceration in local facilities, which vary by county. The State incurs the cost of felony probation at an annual average cost of $2,500, as well as the cost of incarceration in a State facility at an average annual cost of $34,000. To the extent that the revised penalties result in an increase in penal fines, the additional revenue will benefit public libraries.
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.