Free Shot: Trustee sentenced without conviction for domestic violence

Daily Mining Gazette photo From left, Judge Janis Burgess, probation officer Paula Domitrovich, County Prosecutor Michael Findlay, attorney Mark McDonald and Elmer Marks Jr. at Marks’ sentencing hearing for domestic violence Monday in Ontonagon District Court.

ONTONAGON — Village Council member Elmer Marks Jr. appeared in District Court Monday for sentencing on one count of domestic violence — without being found guilty, according to the official record.

Marks was sentenced by Judge Janis Burgess under a state law which allows verdicts for first-time domestic violence offenses against spouses to be “deferred” and sentenced to probation. If no other criminal offenses are committed during that probationary period, the deferred judgment is expunged from the offender’s criminal record.

The deferred judgment also closes all the records regarding the crime, including documents of previous hearings, pleas and testimony in open court from access to the public.

Marks was sentenced to one day of jail, which was credited as served when he was arrested and charged. Since no records are available, the date of the arrest cannot be confirmed.

Burgess also ordered Marks to pay $575 in fines and costs after the bond previously paid had been applied. The defendant was also ordered to participate in a domestic violence intervention program as soon as there were enough people to hold one.

Per Section 769.4a of the Michigan Statutes, Burgess sentenced Marks to probation upon the recommendation of his attorney, Mark McDonald, and County Prosecutor Michael Findlay.

Under this law, “the court, without entering a judgment of guilt, and with the consent of the accused and of the prosecuting attorney in consultation with the victim, may defer further proceedings and place the accused on probation…”

Burgess cited the lack of a previous conviction as reason for the ruling.

The law requires the county prosecutor to “consult” with the victim, but consent from the victim is not a requirement to invoke the deferral, an attorney told the Daily Mining Gazette.

“The court is satisfied in that this report and the recommendations are appropriate. I do find that Mr. Marks has not had a charge of spousal abuse in the past, in fact, there is nothing in his record after 1963 which is longer than many people in this courtroom have been alive,” Burgess stated.

The incident in 1963 cited by the judge could not be confirmed, since the judgment makes the records in this case unavailable to public inspection. However, an attorney consulted by the Daily Mining Gazette said the law only allows a deferred judgment if the offender has no prior convictions for domestic violence, even if a conviction occurred in 1963.

“If you satisfy all of those terms and conditions at the end of the probationary time period, the case will be dismissed, and you will have no record,” Burgess told Marks at Monday’s sentencing. “The other side of the coin, if you do not comply with these terms and conditions if I find that there is a violation of them the court can remove the deferral which means you would then have a conviction for this matter.

“So if you want to keep this off your record, then you are in control.”

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