People of Michigan v. Jesse Gene Burns ( 2007 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 26, 2007
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 130988
BERNARD GEORGE HARPER, JR.,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 131898
JESSE GENE BURNS,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
We granted leave to appeal in these two cases to determine whether an
“intermediate sanction” described in MCL 769.31(b) and MCL 769.34(4)
constitutes a maximum sentence under Blakely v Washington, 542 US 296; 124 S
Ct 2531; 159 L Ed 2d 403 (2004), for which the facts supporting a departure must
be found by a jury beyond a reasonable doubt or admitted by the defendant. We
conclude that because Michigan has a true indeterminate sentencing scheme, an
intermediate sanction is not a maximum sentence that is governed by Blakely.
Under Michigan law, the maximum portion of a defendant’s indeterminate
sentence is prescribed by MCL 769.8(1), which requires a sentencing judge to
impose no less than the prescribed statutory maximum sentence as the maximum
sentence for most felony convictions. Michigan’s unique law requiring the
imposition of an intermediate sanction upon fulfillment of the conditions of MCL
769.34(4)(a) does not alter the maximum sentence that is required upon conviction
and authorized by either the jury verdict or the guilty plea.1 Rather, the
conditional limit on incarceration contained in MCL 769.34(4)(a) is a matter of
legislative leniency, giving a defendant the opportunity to be incarcerated for a
period that is less than that authorized by the jury verdict or the guilty plea, a
circumstance that does not implicate Blakely.2
1
Accordingly, we reject the Court of Appeals contrary conclusion in
People v Uphaus, ___ Mich App ___; ___NW2d ___ (2007) (Docket No. 267238,
issued April 3, 2007).
2
As Justice Kennedy noted in Harris v United States, 536 US 545, 566;
122 S Ct 2406; 153 L Ed 2d 524 (2002), “[t]he Fifth and Sixth Amendments
ensure that the defendant ‘will never get more punishment than he bargained for
when he did the crime,’ but they do not promise that he will receive ‘anything
less’ than that.” (Emphasis added; citation omitted.) See also Apprendi v New
Jersey, 530 US 466, 498-499; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (Scalia, J.,
concurring), indicating that the Sixth Amendment provides “the right to have a
(continued…)
2
Finally, even if an intermediate sanction were a statutory maximum for
purposes of Blakely and the sentencing courts in these cases violated Blakely, we
conclude that any error was harmless. In both cases, the facts used by the
sentencing judges to support the sentence were uncontested and supported by
overwhelming evidence, such that we are convinced beyond a reasonable doubt
that a jury would have reached the same result. Accordingly, we affirm the
defendants’ convictions and sentences.
I. FACTS AND PROCEDURAL HISTORY
A. PEOPLE v HARPER
On February 14, 2005, defendant Harper pleaded guilty of larceny in a
building, which is a class G offense that carries a statutory maximum sentence of
four years’ imprisonment.3 He admitted that, between December 11 and
December 16, 2004, he stole coats from his employer, the Old News Boys of Flint,
a nonprofit organization that solicits donations to aid needy families in Flint.
Harper then sold some of the coats.
(…continued)
jury determine those facts that determine the maximum sentence the law allows,”
and that a defendant receiving a lesser sentence “may thank the mercy of a
tenderhearted judge (just as he may thank the mercy of a tenderhearted parole
commission if he is let out inordinately early, or the mercy of a tenderhearted
governor if his sentence is commuted).”
3
MCL 750.360; MCL 750.503; MCL 777.16r.
3
As part of the plea agreement, the prosecutor dismissed a related
embezzlement charge.4 The prosecutor also agreed not to seek an enhanced
sentence based on Harper’s status as a fourth-offense habitual offender.5 The
parties made no other agreement regarding Harper’s sentence.
Harper did not contest that his criminal record included two prior
convictions for high severity felonies, three prior convictions for low severity
felonies, and one prior misdemeanor conviction. Accordingly, he received an
overall prior record variable (PRV) score of 72, based on scores of 50, 20, and 2
points, respectively, for PRV 1, PRV 2, and PRV 5.6 His offense variable (OV)
score consisted of the five points he received under OV 16, because his offense
caused property with a value of $1,000 or more but not more than $20,000 to be
“obtained, damaged, lost or destroyed.”7 These scores placed him in the E-I cell
of the sentencing grid for class G offenses. As a result, his calculated minimum
sentence range was zero to 17 months.8
Because his minimum sentence range had an upper limit of 18 months or
less, the court was required to impose an intermediate sanction—which may
4
MCL 750.174(4)(a).
5
As a fourth-offense habitual offender, Harper’s potential maximum prison
sentence for larceny in a building would have increased from 4 years to 15 years
under MCL 769.12(1)(b).
6
MCL 777.51; MCL 777.52; MCL 777.55.
7
MCL 777.46(1)(c).
4
include, for instance, a term of probation or a jail term of 12 months or less—
unless the court stated on the record a substantial and compelling reason to impose
a prison term.9 The Genesee Circuit Court concluded that departure was justified
for several reasons, including Harper’s extensive criminal history. The court
noted Harper’s record of three parole revocations, his history of absconding from
parole, the bench warrants issued against him for failures to appear in court, and
other “out of state” legal problems reflected in his presentence investigation
report. The court added that the sentencing guidelines did not take into account
that Harper had “ripped off a charity that was trying to do good for cold children.”
Accordingly, on March 11, 2005, the court sentenced Harper to a minimum prison
term of 24 months, and a maximum term of 48 months with credit for time served.
The Court of Appeals denied defendant’s delayed application for leave to
appeal, citing lack of merit in the grounds presented. Harper then applied for
leave to appeal in this Court. We granted leave to consider whether his sentence,
as an upward departure from an intermediate sanction, violated his constitutional
right to have “‘any fact that increases the penalty for a crime beyond the
prescribed statutory maximum . . . submitted to a jury, and proved beyond a
(…continued)
8
MCL 777.68.
9
MCL 769.34(4)(a); MCL 769.31(b).
5
reasonable doubt.’” Blakely, supra at 301, quoting Apprendi v New Jersey, 530
US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000).10
B. PEOPLE v BURNS
In July 2002, defendant Burns pleaded guilty of attempted breaking and
entering of a building. His recommended minimum sentence range under the
guidelines was zero to 11 months, which placed him in an intermediate sanction
cell. Burns was placed on probation for three years. Among the conditions of
probation were that he must not violate the law, that he must not engage in
threatening or assaultive behaviors, and that he must avoid alcohol and illegal drug
consumption.
In June 2005, Burns was charged with four counts of violating the terms of
his probation: using alcohol, committing fourth-degree criminal sexual conduct,
engaging in harassment, and engaging in assaultive behavior. Burns pleaded not
guilty to the probation violation charges.
A probation violation hearing was held. Two 18-year-old women testified
that Burns had approached them near a boat ramp on Lake Michigan in Ottawa
County. After engaging in small talk, Burns asked one of the women if she gave
“good head.” He also touched the woman on the buttocks and commented that it
was “nice.” Burns asked the other woman similar sexual questions and put his
10
477 Mich 933 (2006).
6
arm around her. The two women wrote down Burns’s license plate number and
reported the incident to the police.
A police officer came to investigate the complaint. The officer stopped
Burns’s boat. The two women identified Burns as the person who had assaulted
them. Although Burns initially denied that the incident had occurred, he
eventually admitted to the officer that he had asked the women if they knew how
to give “a blow job.” He also admitted that he had touched one woman on the
buttocks and the other on the shoulder. He further told the officer that he had
consumed about six beers and was “buzzed.” Burns was administered a
preliminary breath test that registered a blood alcohol level above the legal limit.
Burns called no witnesses and presented no evidence at the probation
violation hearing. The trial court found, by a preponderance of the evidence, that
Burns had been intoxicated, that he had committed fourth-degree criminal sexual
conduct, and that he had done so in an intimidating, aggressive manner.
At the probation violation sentencing, the trial court departed from the
original guidelines recommendation of zero to 11 months and imposed a sentence
of 18 months to 5 years. The court explained its decision:
Well, I’m glad to hear that you’ve found religion and the
reason to—it can give some meaning to your life. It doesn’t
however change what you did here. You know, there wasn’t any
question but that you did this to these young girls. I don’t
understand in a sense why you put them through taking the stand
and testify [sic] to the whole thing, because there wasn’t any issue,
you did it. It expresses an attitude to me that is very puzzling. It’s
kind of a mean spirited thing that you did. Not that you didn’t have
7
a perfect right to do it, I would never dispute your right to a hearing
and to have testimony confirm it, but it wasn’t a close case, it was a
clear cut case of a great deal of abuse on your part. You were about
as intimidating and—to those young girls and you scared the devil
out of them.
It’s a difficult thing to understand how you could publicly do
that to people, young girls you didn’t even know, you didn’t have
any—it was gross, it was very gross. Very intimidating.
I suspect because of the fact that you fondled the one young
lady you’re probably going to be looking at some serious time in
Holland if you’re convicted [of fourth-degree criminal sexual
conduct]. I suspect you will be because the girls told the story very
honestly in my opinion. You’re very likely going to get convicted
and go to prison for that one.
I seldom ever exceed guidelines, in fact I can’t recall a time
that I have, but I’m going to in your case. The behavior that you
exhibited here certainly is not or was not contemplated in arriving at
your original guidelines. It was gross, it was abusive, and I believe
there’s a compelling reason to exceed guidelines.
It’s the sentence of this Court that you be committed to the
Michigan Department of Corrections for a term of 18 months to a
maximum of 5 years. You have credit I believe for 142 days in the
county jail.
On the departure evaluation form, the court stated that the original guidelines
recommendation of zero to 11 months failed “to consider [defendant’s] violation
behavior—which constitutes a substantial and compelling reason for a moderate
departure . . . .”11
11
Contrary to the apparent assumptions of Justice Kelly, post at 4-6, and
Justice Cavanagh, post at 2, the sentencing judge followed the proper procedure
for stating his reasons for departure. A judge is required to “state[] on the record
a substantial and compelling reason to sentence the individual to the jurisdiction of
(continued…)
8
Burns moved for resentencing, arguing that the fact that his sentence
exceeded the guidelines range on the basis of facts neither admitted by him nor
found by a jury beyond a reasonable doubt violated his due process rights under
Blakely. The trial court denied the motion because this Court had stated in People
v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004), that Blakely did not
apply to Michigan’s indeterminate sentencing system. The court further
explained:
Therefore, the Court was not required to find Defendant
guilty of 4th Degree Criminal Sexual Conduct beyond a reasonable
doubt in order to consider that behavior for the purpose of exceeding
guidelines. The Court found objective and verifiable evidence on
the record, including Defendant’s admission to the public safety
officer that he touched the victim’s “butt” and the uncontroverted
testimony of the victims themselves that Defendant was harassing
and intimidating. Such evidence was not considered in the original
sentencing, and the Court maintains that Defendant’s behavior
constituted substantial and compelling reasons for exceeding
statutory guidelines.
The Court of Appeals denied Burns’s application for leave to appeal for
lack of merit in the grounds presented. Burns then sought leave to appeal in this
Court. We granted the application and directed the parties to address whether an
intermediate sanction described in MCL 769.31(b) and MCL 769.34(4) is a
statutory maximum sentence under Blakely “for which the departure reasons must
(…continued)
the department of corrections.” MCL 769.34(4)(a) (emphasis added); see also
MCR 6.425(E)(1)(e). The judge did precisely this.
9
be decided by a jury or admitted by the defendant, where the defendant is being
sentenced for a violation of probation.” 477 Mich 933 (2006).
II. STANDARD OF REVIEW
We review de novo questions of constitutional law. People v Nutt, 469
Mich 565, 573; 677 NW2d 1 (2004).
III. ANALYSIS
A. MICHIGAN’S STATUTORY SENTENCING SCHEME UNDER BLAKELY
Under the Due Process Clause of the Fifth Amendment and the jury trial
guarantees of the Sixth Amendment, any fact that increases the maximum penalty
for a crime must be submitted to a jury and proven beyond a reasonable doubt.12
The Fourteenth Amendment requires that the states’ criminal sentencing schemes
conform to this rule.13 The rule includes exceptions for the fact of prior
convictions and any facts admitted by the defendant.14
Accordingly, when sentencing a defendant, a judge may not exceed the
maximum sentence authorized by the jury verdict or the guilty plea except on the
basis of the facts reflected in the jury verdict, the facts admitted by the defendant,
and the defendant’s record of prior convictions. In other words, the statutory
maximum, for Blakely purposes, is the maximum sentence a judge may impose
12
Apprendi, supra at 476, 490.
13
Id. at 476.
14
Blakely, supra at 303; Apprendi, supra at 490.
10
“without any additional findings.” Blakely, supra at 304. In the wake of Blakely,
state courts have been called upon to define the relevant statutory maximums
within which judges may continue to exercise the traditional sentencing discretion
legislatures afford them.
The first question in this inquiry involves whether a state’s sentencing
scheme is determinate or indeterminate. As we have previously explained, under a
determinate scheme, conviction for an offense typically exposes a defendant to a
sentence of a fixed term lying in a standard range for that offense.15 In Blakely,
for instance, Washington’s scheme prescribed a “standard range” of 49 to 53
months for the defendant’s conviction of second-degree kidnapping with a
firearm.16 A judge was authorized to depart beyond the standard range on the
basis of “‘substantial and compelling reasons justifying an exceptional
sentence.’”17 The statute permitted the reasons for departure to be based on facts
found by the sentencing judge.18 In Blakely, the judge sentenced the defendant to
an exceptional 90-month sentence on the basis of the judge’s finding that the
defendant perpetrated the kidnapping with “deliberate cruelty.”19 Accordingly, the
15
See People v Drohan, 475 Mich 140, 159-160; 715 NW2d 778 (2006),
citing Claypool, supra at 730 n 14.
16
Blakely, supra at 299, citing Wash Rev Code 9.94A.320.
17
Blakely, supra at 299, citing Wash Rev Code 9.94A.120(2).
18
Blakely, supra at 299, citing Wash Rev Code 9.94A.120(3).
19
Blakely, supra at 300.
11
sentence violated the defendant’s constitutional rights because it exceeded the
fixed statutory maximum sentence range that was authorized solely by the facts
that the defendant admitted when he pleaded guilty of second-degree
kidnapping.20
In contrast, under an indeterminate scheme, a defendant receives a
minimum sentence and a maximum sentence. In Michigan, for instance, the law
provides that the maximum portion of a defendant’s indeterminate sentence must
be the “maximum penalty provided by law . . . .”21 As will be explained in detail
20
Id. at 304-305.
21
MCL 769.8(1); Drohan, supra at 160. Michigan’s habitual-offender
statutes are an exception to the Legislature’s requirement that the maximum
portion of a defendant’s indeterminate sentence be the maximum penalty provided
by law. The habitual-offender statutes grant a sentencing judge the discretion to
increase the maximum portion of a recidivist’s indeterminate sentence beyond the
statutory limit on the basis of the fact of a prior conviction, as permitted by
Apprendi and Blakely. Id. at 161 n 13; MCL 769.10(1)(a) (upon a second felony
conviction, a judge may impose a maximum sentence of up to 1½ times the
statutory maximum prescribed for a first conviction of the offense); MCL
769.11(1)(a) (upon a third felony conviction, a judge may impose a maximum
sentence of up to twice the statutory maximum); MCL 769.12(1)(a) and (b) (upon
a fourth or subsequent felony conviction, a judge may impose a maximum
sentence of up to 15 years for offenses carrying statutory maximum terms of less
than 5 years and a sentence of life in prison for offenses carrying maximum terms
of 5 years or more). When a judge imposes an increased maximum sentence
under these statutes, the defendant’s sentence remains an indeterminate sentence.
Moreover, the judge is expressly prohibited from sentencing a recidivist to a
maximum sentence that is less than the maximum term for a first conviction.
MCL 769.10(2); MCL 769.11(2); MCL 769.12(2).
A very limited number of offenses carry determinate sentences in
Michigan, such as first-degree murder, MCL 750.316 (life in prison without the
possibility of parole), and carrying or possessing a firearm when committing or
(continued…)
12
later in this opinion, the sentencing judge ascertains the minimum portion of a
defendant’s indeterminate sentence by calculating the minimum sentence range
under the statutory sentencing guidelines, which consider the circumstances of the
crime as well as the defendant’s criminal history. The judge may exceed the
statutorily recommended minimum sentence range in a particular case if the judge
finds a “substantial and compelling reason” to depart that the guidelines do not
adequately take into account.22 While the sentencing judge fixes the minimum
portion of a defendant’s indeterminate sentence, a defendant is still liable to serve
his maximum sentence and may only be released before the maximum term has
expired at the discretion of the parole board.23
Thus, under an indeterminate sentencing scheme like Michigan’s, judicial
fact-finding does not present the same constitutional problems as judicial fact­
finding used to exceed the statutory maximum under a determinate scheme,24
(…continued)
attempting to commit a felony, MCL 750.227b (two years in prison for a first
offense, five years for a second offense, and ten years for a third or subsequent
offense).
22
MCL 769.34(3).
23
MCL 791.234; MCL 791.235; Drohan, supra at 163.
24
The United States Supreme Court has firmly established that, when a
legislature defines the outer limit of an indeterminate sentence on the basis of the
elements of an offense, judicial fact-finding may be employed to set the minimum
sentence. McMillan v Pennsylvania, 477 US 79, 86-88, 93; 106 S Ct 2411; 91 L
Ed 2d 67 (1986); see also Harris, supra at 567 (opinion of Kennedy, J.) (“Read
together, McMillan and Apprendi mean that those facts setting the outer limits of a
sentence, and of the judicial power to impose it, are the elements of the crime for
(continued…)
13
because judicial fact-finding under our scheme never affects the statutory
maximum sentence that was authorized by the jury verdict of guilty or the
defendant’s guilty plea.25 As the Blakely Court observed in distinguishing the two
types of schemes:
(…continued)
the purposes of the constitutional analysis. Within the range authorized by the
jury’s verdict, however, the political system may channel judicial discretion—and
rely upon judicial expertise—by requiring defendants to serve minimum terms
after judges make certain factual findings.”).
25
The fact that a defendant is always liable to serve the statutory maximum
sentence in Michigan also distinguishes our scheme from the schemes Justice
Kelly claims are indistinguishable. She compares, for instance, Ring v Arizona,
536 US 584, 592-593; 122 S Ct 2428; 153 L Ed 2d 556 (2002), in which the
United States Supreme Court rejected an Arizona sentencing law allowing the
sentencing judge to determine, at a separate posttrial hearing, whether the
defendant would be subject to a maximum sentence of either death or life
imprisonment. Post at 22-24. The state argued that the jury verdict authorized
either sentence. The Ring Court disagreed, given that the maximum sentence of
death could only be imposed if the judge found aggravating circumstances. Ring,
supra at 603-604. An Arizona offender also could not know until sentencing was
complete whether he would be subject to the death penalty for his crime. In
contrast, and contrary to Justice Kelly’s contention, Michigan’s indeterminate
sentences do “have only one maximum sentence,” post at 16-17, and the statutes
unambiguously notify Michigan offenders of the statutory maximum terms
applicable to their crimes.
In her dissent in People v McCuller, 479 Mich ___; ___ NW2d ___ (2007)
(Docket No. 128161, decided July 26, 2007), Justice Kelly also compares the
federal sentencing system as it existed before the United States Supreme Court’s
decision in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621(2005). But the federal sentencing guidelines did not merely set a minimum
sentence and leave a defendant liable to serve the statutory maximum, as in
Michigan. Rather, in Booker, as Justice Kelly concedes, although a separate
federal statute set an absolute maximum sentence of life in prison for the
defendant’s offense, in Booker’s particular case “the guidelines required a
maximum sentence of 21 years and 10 months’ imprisonment.” McCuller, supra
(continued…)
14
[T]he Sixth Amendment by its terms is not a limitation on
judicial power, but a reservation of jury power. It limits judicial
power only to the extent that the claimed judicial power infringes on
the province of the jury. Indeterminate sentencing does not do so.
It increases judicial discretion, to be sure, but not at the expense of
the jury’s traditional function of finding the facts essential to lawful
imposition of the penalty. Of course indeterminate schemes involve
judicial factfinding, in that a judge (like a parole board) may
implicitly rule on those facts he deems important to the exercise of
his sentencing discretion. But the facts do not pertain to whether the
defendant has a legal right to a lesser sentence—and that makes all
the difference insofar as judicial impingement upon the traditional
role of the jury is concerned. In a system that says the judge may
punish burglary with 10 to 40 years, every burglar knows he is
risking 40 years in jail. In a system that punishes burglary with a
10-year sentence, with another 30 added for use of a gun, the burglar
who enters a home unarmed is entitled to no more than a 10-year
sentence . . . . [Blakely, supra at 308-309.]
Similarly, as we observed in People v Drohan, 475 Mich 140, 162; 715 NW2d
778 (2006), in Michigan, “the trial court’s power to impose a sentence is always
derived from the jury’s verdict, because the ‘maximum-minimum’ sentence will
always fall within the range authorized by the jury’s verdict.” For this reason, a
defendant’s constitutional rights are not violated when a sentencing judge exceeds
the recommended minimum sentence range on the basis of a substantial and
compelling reason, as the respective judges did in these cases; even an upward
(…continued)
at ___ (Kelly, J., dissenting) (emphasis added); see Booker, supra at 227.
Accordingly, the judge’s upward departure from that range on the basis of his own
findings was impermissible given the then-mandatory nature of the guidelines,
although the 30-year sentence imposed was within the outer limit of the absolute
maximum. Booker, supra at 226-227. As we will more fully explain later in this
(continued…)
15
departure from the guidelines may not exceed the maximum penalty provided by
law. Id. at 162 n 15. Therefore, we reaffirm our holding in Drohan that
Michigan’s indeterminate sentencing scheme is valid under Blakely. Id. at 162­
164.
B. MICHIGAN’S INTERMEDIATE SANCTION CELLS
Nonetheless, defendants argue that at least one aspect of Michigan’s
sentencing scheme violates Blakely. They claim that, when the guidelines
minimum sentence range calls for an intermediate sanction, as it did in these cases,
the intermediate sanction becomes the relevant statutory maximum sentence under
Blakely and a defendant is constitutionally entitled to such a sanction.
Accordingly, they claim that a judge may not exceed the range of intermediate
sanction options by sentencing a defendant to an indeterminate prison term, even
if the judge has a substantial and compelling reason to do so. We disagree.
Blakely prohibits a judge from exceeding the maximum sentence authorized by the
jury verdict or the guilty plea. Blakely does not, as defendants would have it,
entitle a defendant to a sentence that is less than the one authorized by the verdict
or plea.
A defendant’s recommended minimum sentence range under the guidelines
is determined on the basis of the defendant’s record of prior convictions (the PRV
(…continued)
opinion, Michigan’s sentencing guidelines establish a defendant’s minimum
(continued…)
16
score), the facts surrounding his crime (the OV score), and the legislatively
designated offense class.26 A court must generally sentence a defendant to a
minimum prison term within the guidelines range27 unless it states on the record a
substantial and compelling reason to depart.28 A substantial and compelling
reason “exists only in exceptional cases,” and is an “objective and verifiable”
reason that “keenly or irresistibly grabs our attention” and is “of considerable
worth in deciding the length of a sentence . . . .”29 Departure may not be based on
certain qualities of the defendant, such as gender, race, or employment status.30
Departure also may not be based on “an offense characteristic or offender
characteristic already taken into account in determining the appropriate sentence
range unless the court finds from the facts contained in the court record, including
the presentence investigation report, that the characteristic has been given
inadequate or disproportionate weight.” MCL 769.34(3)(b). Finally, a minimum
(…continued)
sentence. Our statutory maximums for a given offense are static.
26
MCL 777.21(1). The range for the minimum sentence may also be
increased on the basis of a defendant’s status as an habitual offender. MCL
777.21(3).
27
MCL 769.34(2)(a).
28
MCL 769.34(3).
29
People v Babcock, 469 Mich 247, 258; 666 NW2d 231 (2003) (internal
quotations and citation omitted).
30
MCL 769.34(3)(a).
17
sentence, including a departure, may not exceed ⅔ of the statutory maximum
sentence.31
When the upper and lower limits of the recommended minimum sentence
range meet certain criteria, a defendant is eligible for an intermediate sanction. If
the upper limit of the minimum sentence range exceeds 18 months and the lower
limit is 12 months or less, the defendant’s sentence range is in a “straddle cell.”32
When the range is in a straddle cell, the sentencing court may elect either to
sentence the defendant to a prison term with the minimum portion of the
indeterminate sentence within the guidelines range or to impose an intermediate
sanction, absent a departure.33 If the upper limit of the minimum sentence range is
18 months or less, as it was in these cases, the cell containing the range is an
“intermediate sanction cell.” Under these circumstances, the statute provides that
the court shall impose an intermediate sanction unless the court
states on the record a substantial and compelling reason to sentence
the individual to the jurisdiction of the department of corrections. An
intermediate sanction may include a jail term that does not exceed
the upper limit of the recommended minimum sentence range or 12
months, whichever is less. [MCL 769.34(4)(a).]
31
MCL 769.34(2)(b). MCL 769.34 does not apply when a defendant is
convicted of an offense punishable by a prison sentence of “life or any term of
years” because the minimum will never exceed ⅔ of the statutory maximum
sentence of life authorized by the jury verdict. Drohan, supra at 162 n 14.
32
People v Stauffer, 465 Mich 633, 636 n 8; 640 NW2d 869 (2002).
33
MCL 769.34(4)(c).
18
MCL 769.31(b) defines “intermediate sanction” as “probation or any sanction,
other than imprisonment in a state prison or state reformatory, that may lawfully
be imposed. Intermediate sanction includes, but is not limited to, 1 or more of”
several options, including probation with any conditions authorized by law,
probation with jail, treatment for substance abuse or mental health conditions, and
other options such as house arrest and community service.34 Defendants argue
that, because the statute states that the sentencing court “shall” impose an
34
The nonexhaustive list of intermediate sanction options includes:
(i) Inpatient or outpatient drug treatment or participation in a
drug treatment court under chapter 10A of the revised judicature act
of 1961, 1961 PA 236, MCL 600.1060 to 600.1082.
(ii) Probation with any probation conditions required or
authorized by law.
(iii) Residential probation.
(iv) Probation with jail.
(v) Probation with special alternative incarceration.
(vi) Mental health treatment.
(vii) Mental health or substance abuse counseling.
(viii) Jail.
(ix) Jail with work or school release.
(x) Jail, with or without authorization for day parole under
1962 PA 60, MCL 801.251 to 801.258.
(xi) Participation in a community corrections program.
(xii) Community service.
(xiii) Payment of a fine.
(xiv) House arrest.
(xv) Electronic monitoring. [MCL 769.31(b).]
19
intermediate sanction, they were constitutionally entitled under Blakely to either a
jail term of 12 months or less or one or more of the other intermediate sanction
options available to the sentencing court.
Most significantly, they cite Cunningham v California, 549 US ___; 127 S
Ct 856; 166 L Ed 2d 856 (2007), in which the United States Supreme Court
examined California’s determinate sentencing law (DSL), which contains
language that is superficially similar to the language describing intermediate
sanction cells in MCL 769.34(4)(a) quoted above.35 In Cunningham, the
defendant was tried and convicted of continuous sexual abuse of a child under the
age of 14.36 The statute defining the offense prescribed three precise terms of
imprisonment—lower, middle, and upper terms of 6, 12, and 16 years,
respectively.37 The statute that controlled which term a sentencing judge should
impose provided that “‘the court shall order imposition of the middle term, unless
there are circumstances in aggravation or mitigation of the crime.’”38
Circumstances in aggravation or mitigation were to be determined by the court
after considering the trial record, the probation officer’s report, statements
35
Cunningham, supra, 127 S Ct at 861-862.
36
Id., 127 S Ct at 860.
37
Id., 127 S Ct at 861, citing Cal Penal Code 288.5(a) (stating that a person
convicted of continuous sexual abuse of a child “shall be punished by
imprisonment in the state prison for a term of 6, 12, or 16 years”).
38
Cunningham, supra, 127 S Ct at 861, quoting Cal Penal Code 1170(b)
(emphasis added).
20
submitted by the parties, the victim, or the victim’s family, and “‘any further
evidence introduced at the sentencing hearing.’”39 The judge in Cunningham
sentenced the defendant to the 16-year upper term on the basis of the judge’s
findings of aggravating facts, including the particular vulnerability of the victim
and the defendant’s violent conduct, which indicated a serious danger to the
community.40
The Cunningham Court concluded that the sentence violated the
defendant’s rights because
an upper term sentence may be imposed only when the trial judge
finds an aggravating circumstance. . . . An element of the charged
offense, essential to a jury’s determination of guilt, or admitted in a
defendant’s guilty plea, does not qualify as such a circumstance. . . .
Instead, aggravating circumstances depend on facts found discretely
and solely by the judge. In accord with Blakely, therefore, the middle
term prescribed in California’s statutes, not the upper term, is the
relevant statutory maximum. 542 U.S., at 303, 124 S.Ct. 2531(“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” (emphasis
in original)). Because circumstances in aggravation are found by the
judge, not the jury, and need only be established by a preponderance
of the evidence, not beyond a reasonable doubt, . . . the DSL violates
Apprendi’s bright-line rule: Except for a prior conviction, “any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S., at 490, 120 S.Ct. 2348. [Cunningham,
supra, 127 S Ct at 868.]
39
Cunningham, supra, 127 S Ct at 861-862, quoting Cal Penal Code
1170(b).
40
Cunningham, supra, 127 S Ct at 860.
21
Defendants argue that MCL 769.34(4)(a), which similarly provides that the
court “shall impose an intermediate sanction unless the court states on the record a
substantial and compelling reason to sentence the individual to the jurisdiction of
the department of corrections,” renders their sentences indistinguishable from the
invalid sentence in Cunningham. We hold that the superficial similarity of the
statutory language in California’s determinate scheme does not transform
Michigan’s intermediate sanction cells into the relevant statutory maximums for
Blakely purposes. Rather, the similar language in MCL 769.34(4)(a) yields a
different result when read in the context of Michigan’s indeterminate scheme.
Statutes that address the same subject or share a common purpose are in
pari materia and must be read together as a whole.41 This general rule not only
applies to our interpretation of Michigan’s sentencing scheme, it requires us to
examine it in the context of related statutes, including laws defining intermediate
sanctions such as probation.42 Further, we presume that a statute is constitutional.
“We exercise the power to declare a law unconstitutional with extreme caution,
and we never exercise it where serious doubt exists with regard to the conflict.”
Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004).43
41
People v Buehler, 477 Mich 18, 26-27; 727 NW2d 127 (2007).
42
Id.43
See also Sears v Cottrell, 5 Mich 251, 259 (1858):
No rule of construction is better settled in this country, both
upon principle and authority, than that the acts of a state legislature
(continued…)
22
Michigan’s sentencing laws clearly require that the maximum portion of
every indeterminate sentence be no less than the “maximum penalty provided by
law . . . .” MCL 769.8(1). Thus, the “‘statutory maximum’ for Apprendi
purposes,” or “the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant,”44 is the
maximum term set by statute for each enumerated offense.45 Thus, when Harper
pleaded guilty of larceny in a building, his guilty plea alone required the
imposition of a maximum sentence of four years’ imprisonment. Similarly, when
Burns pleaded guilty of attempted breaking and entering, his conviction required
the imposition of a five-year maximum sentence. The guidelines calculations,
which might result in an intermediate sanction cell, relate solely to a defendant’s
recommended minimum sentence range. The guidelines do nothing to alter or
affect the maximum sentence that must be imposed solely on the basis of the jury
(…continued)
are to be presumed constitutional until the contrary is shown; and it
is only when they manifestly infringe some provision of the
constitution that they can be declared void for that reason. In cases
of doubt, every possible presumption, not clearly inconsistent with
the language and the subject matter, is to be made in favor of the
constitutionality of the act.
44
Blakely, supra at 303 (emphasis in original).
45
As we have explained, the habitual-offender statutes provide a slight
exception to this rule by permitting a sentencing judge to increase a maximum
sentence on the basis of the fact of prior conviction. See n 21 of this opinion; see
also Drohan, supra at 161 n 13.
23
verdict or the guilty plea. The language of our sentencing scheme makes this clear
in several ways.
MCL 769.8 describes a judge’s general sentencing powers and duties:
(1) When a person is convicted for the first time for
committing a felony and the punishment prescribed by law for that
offense may be imprisonment in a state prison, the court imposing
sentence shall not fix a definite term of imprisonment, but shall fix a
minimum term, except as otherwise provided in this chapter. The
maximum penalty provided by law shall be the maximum sentence in
all cases except as provided in this chapter and shall be stated by
the judge in imposing the sentence.
(2) Before or at the time of imposing sentence, the judge shall
ascertain by examining the defendant under oath, or otherwise, and
by other evidence as can be obtained tending to indicate briefly the
causes of the defendant’s criminal character or conduct, which facts
and other facts that appear to be pertinent in the case the judge shall
cause to be entered upon the minutes of the court. [Emphasis
added.]
Thus, the statute requires that a judge “shall fix a minimum term,” but “[t]he
maximum penalty provided by law shall be the maximum sentence in all
cases . . . .” MCL 769.8(1) (emphasis added). Although each mandate is
modified by “except as otherwise provided in this chapter” or “except as provided
in this chapter,” respectively, this or similar language has been included in the
statute since it was enacted in 1927.46 Accordingly, this language creating an
exception to the rule that “[t]he maximum penalty provided by law shall be the
46
1927 PA 175. The language originally read “except as hereinafter
provided” and “except as herein provided.” It was modified to its current form by
1978 PA 77.
24
maximum sentence” was not originally aimed at intermediate sanction cells;
intermediate sanction cells were first suggested in the sentencing scheme in 1994
and are a mandatory component of sentencing only for crimes committed after
January 1, 1999.47 Therefore, it takes further examination of the statutory scheme
to discern whether intermediate sanctions are meant to be exceptions to the rule.
The Legislature explicitly described exceptions to indeterminate sentencing
in our sentencing scheme. For example, MCL 769.9(1) provides: “The provisions
of this chapter relative to indeterminate sentences shall not apply to a person
convicted for the commission of an offense for which the only punishment
prescribed by law is imprisonment for life.” Similarly, MCL 769.9(2) addresses
cases in which the sentencing judge has the option to impose a sentence of either
life imprisonment or a term of years. If the judge imposes a sentence of life
imprisonment, the judge may not also impose a separate minimum sentence. MCL
769.9(2). As we noted previously, the Legislature also explicitly provided for
determinate sentences for a limited number of particular offenses, such as
possession of a firearm during the commission of a felony, MCL 750.227b. In
contrast, nowhere did the Legislature state that intermediate sanctions are an
exception to indeterminate sentencing.
To the contrary, intermediate sanctions are an explicit component of the
statutory scheme for setting a defendant’s minimum sentence. A sentencing court
47
1994 PA 445; MCL 769.34(2), as amended by 1998 PA 317.
25
calculates a defendant’s PRVs and OVs in order to determine “the recommended
minimum sentence range.” MCL 777.21(1) (emphasis added). MCL 769.34
governs the courts’ application of the guidelines and consistently addresses the
minimum sentence range. For instance, MCL 769.34(2) provides:
Except as otherwise provided in this subsection or for a
departure from the appropriate minimum sentence range provided
for under subsection (3), the minimum sentence imposed by a court
of this state for a felony enumerated in part 2 of chapter XVII
committed on or after January 1, 1999 shall be within the
appropriate sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed.
Subsection 4 defines intermediate sanction cells on the basis of the upper and
lower limits of the “recommended minimum sentence range.” MCL 769.34(4)(a)
and (c) (emphasis added). The statutory maximum for the relevant offense—
which is the maximum authorized by the conviction and therefore the relevant
maximum for Blakely purposes—has never changed.
That the statutory maximum is not altered by an intermediate sanction cell
becomes particularly evident when we consider the range of intermediate
sanctions available to the sentencing judge. Most significantly, judges commonly
impose a term of probation, which may also be combined with other sanctions
such as jail or substance abuse treatment.48 Accordingly, the nature of a
48
See MCL 769.31(b)(i), (ii), and (iv), concerning drug treatment,
probation with any conditions required or authorized by law, and probation with
jail, respectively.
26
probationary sentence aids our understanding of whether the Legislature intended
intermediate sanctions to constitute maximum terms for Blakely purposes.
MCL 771.1(1), originally enacted in 1927,49 authorizes a sentencing judge
to impose probation in lieu of prison for most crimes if the judge “determines that
the defendant is not likely again to engage in an offensive or criminal course of
conduct and that the public good does not require that the defendant suffer the
penalty imposed by law.”50 Thus, the imposition of probation is a permissive
matter left to the discretion of the sentencing judge. The Legislature provided a
detailed definition of probationary sentences in MCL 771.4:
It is the intent of the legislature that the granting of probation
is a matter of grace conferring no vested right to its continuance. If
during the probation period the sentencing court determines that the
probationer is likely again to engage in an offensive or criminal
course of conduct or that the public good requires revocation of
probation, the court may revoke probation. All probation orders are
revocable in any manner the court that imposed probation considers
applicable either for a violation or attempted violation of a
probation condition or for any other type of antisocial conduct or
action on the probationer’s part for which the court determines that
49
1927 PA 175.
50
MCL 771.1(1) provides in full:
In all prosecutions for felonies, misdemeanors, or ordinance
violations other than murder, treason, criminal sexual conduct in the
first or third degree, armed robbery, or major controlled substance
offenses, if the defendant has been found guilty upon verdict or plea
and the court determines that the defendant is not likely again to
engage in an offensive or criminal course of conduct and that the
public good does not require that the defendant suffer the penalty
imposed by law, the court may place the defendant on probation
under the charge and supervision of a probation officer.
27
revocation is proper in the public interest. Hearings on the
revocation shall be summary and informal and not subject to the
rules of evidence or of pleadings applicable in criminal trials. In its
probation order or by general rule, the court may provide for the
apprehension, detention, and confinement of a probationer accused
of violating a probation condition or conduct inconsistent with the
public good. The method of hearing and presentation of charges are
within the court’s discretion, except that the probationer is entitled to
a written copy of the charges constituting the claim that he or she
violated probation and to a probation revocation hearing. The court
may investigate and enter a disposition of the probationer as the
court determines best serves the public interest. If a probation order
is revoked, the court may sentence the probationer in the same
manner and to the same penalty as the court might have done if the
probation order had never been made. [Emphasis added.]
Thus, probation is, by definition, “a matter of grace conferring no vested right to
its continuance.” When a judge imposes a sentence of probation, the Legislature
intended that probation be revocable on the basis of a judge’s findings of fact at an
informal hearing, and largely at the judge’s discretion. Indeed, a judge may
revoke probation for “antisocial conduct or action on the probationer’s part for
which the court determines that revocation is proper in the public interest.” Id.In accord, the United States Supreme Court has recently reaffirmed that
probation revocation hearings may be “‘proceedings in which the trial rights of a
jury and proof beyond a reasonable doubt, among other things, do not apply.’”
Samson v California, ___ US ___, ___; 126 S Ct 2193, 2198; 165 L Ed 2d 250(2006), quoting United States v Knights, 534 US 112, 120; 122 S Ct 587; 151 L
Ed 2d 497 (2001). “Inherent in the very nature of probation is that probationers
‘do not enjoy “the absolute liberty to which every citizen is entitled.”’” Knights,
28
supra at 119 (citations omitted). Cf. United States v Cranley, 350 F3d 617, 621
(CA 7, 2003) (“[I]t has long been understood that a fundamental and unchallenged
condition of probation is that the probationer surrender his right to trial by jury
should the government seek revocation, and thus imprisonment.”).
Moreover, for this reason, federal courts observe that the rule of Blakely
and Apprendi does not apply to probation revocation hearings. In the words of the
Court of Appeals for the Second Circuit,
a sentence of supervised release by its terms involves a surrender of
certain constitutional rights and this includes surrender of the due
process rights articulated in Apprendi . . . .
. . . Given a prior conviction and the proper imposition of
conditions on the term of supervised release, when a defendant fails
to abide by those conditions the government is not then put to the
burden of an adversarial criminal trial. [United States v Carlton, 442
F3d 802, 809 (CA 2, 2006), quoted with approval by United States v
Cordova, 461 F3d 1184, 1187 (CA 10, 2006).]
The Court of Appeals for the Ninth Circuit recently reached the same conclusion
when addressing arguments similar to those advanced by defendant Burns. In
United States v Ray, 484 F3d 1168, 1169 (CA 9, 2007), the defendant was initially
sentenced to a short prison term, followed by a three-year term of supervised
release. She later admitted that she had violated certain conditions of the release,
and the court revoked her supervised release. Id. She argued that her maximum
term of imprisonment for purposes of resentencing was the high end of her federal
sentencing guidelines range, rather than the statutory maximum imposed by the
United States Code. Id. at 1170. The court observed that the courts of appeals in
29
the First, Second, and Fifth circuits had already rejected this argument in the
supervised release context. Id. at 1171-1172. Further, the federal circuits had
unanimously rejected the same argument in the analogous context of resentencing
after revocation of probation. See id. at 1172. The Ninth Circuit held:
We now join our sister circuits in holding that [United States
v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), the
counterpart to Blakely in the federal sentencing context,] does not
define the “statutory maximum” as the high end of the Guidelines
range for sentences imposed for violations of supervised release.
Instead, the definition of “statutory maximum” continues to come
from the United States Code. We may not modify Congress’ clear
intent that the statutory maximum determines the allowable period
of imprisonment after the revocation of supervised release, even if
the Guidelines prescribed a lower maximum sentence for the
particular defendant. [Id. at 1171.][51]
51
Justice Kelly contends that differences between Michigan’s sentencing
scheme and the federal sentencing scheme preclude any comparison in this
context. She observes that, under the federal scheme, a judge need not adhere to
the originally established guidelines range when resentencing a defendant after he
violates the conditions of probation. Post at 17, citing United States v Goffi, 446
F3d 319, 322 (CA 2, 2006). Rather, upon resentencing, a federal judge consults
relevant guidelines or policy statements issued by the United States Sentencing
Commission. Id.; 18 USC 3553(a)(4)(B). The judge is free to exceed the initial
guidelines range as long as the sentence is still within the absolute statutory
maximum for the underlying conviction. Goffi, supra at 322-323. For
comparison, in Michigan the sentencing guidelines continue to apply in this
context and, as usual, a judge must sentence the defendant within the guidelines or
state substantial and compelling reasons for departure. People v Hendrick, 472
Mich 555, 560, 562-563; 697 NW2d 511 (2005). Moreover, “it is perfectly
acceptable to consider postprobation factors in determining whether substantial
and compelling reasons exist to warrant an upward departure.” Id. at 562-563.
We fail to see how the differences between the two schemes “completely
undermine[] [our] argument.” Post at 17-18. The federal system affords a judge
general discretion to exceed the original guidelines range when sentencing a
defendant who has violated probation as long as the judge consults relevant
(continued…)
30
Perhaps most significantly, the Michigan Legislature did not modify or
repeal the probation statutes when it enacted the mandatory sentencing guidelines.
Rather, the statutes inform each other. The limits of a sentence that includes
probation are defined in MCL 771.1 et seq., which provide, for instance, time
limits for probationary sentences on the basis of the crime committed. See, e.g.,
MCL 771.2; MCL 771.2a. Indeed, the statute defining intermediate sanction cells,
MCL 769.34(4)(a), does not define or limit available intermediate sanctions; it
merely relies on and reiterates definitions of intermediate sanctions provided by
other statutes. Crucially, the mandate in MCL 769.34(4)(a) that a jail term
imposed as part of an intermediate sanction may not “exceed the upper limit of the
recommended minimum sentence range or 12 months, whichever is less,”
reiterates a mandate from the probation statutes that long preceded the enactment
of MCL 769.34.52 MCL 771.3(2) provides, in part:
As a condition of probation, the court may require the
probationer to do 1 or more of the following:
(…continued)
guidelines or policy statements. The Michigan system affords such discretion as
long as the judge gives legally sufficient substantial and compelling reasons for
departure. In both systems, the statutory maximum authorized by jury verdict or
the defendant’s guilty plea has not changed and may not be exceeded. Neither
system grants a defendant a special right to a sentence limited to the initial
guidelines range merely because he was initially afforded probation and chose to
violate the probationary conditions.
52
The 12-month limit placed on jail time by MCL 771.3(2)(a) has been
effective since 1981, when it was increased from six months by 1980 PA 514.
31
(a) Be imprisoned in the county jail for not more than 12
months, at the time or intervals, which may be consecutive or
nonconsecutive, within the probation as the court determines.
However, the period of confinement shall not exceed the maximum
period of imprisonment provided for the offense charged if the
maximum period is less than 12 months. [Emphasis added.]
Thus, first, the 12-month limitation, as restated in MCL 769.34(4)(a), is not
a new, independent limit on jail time established by the sentencing guidelines in
the intermediate sanction cell context. Second, the nature of a probationary
sentence clearly reveals the Legislature’s intent that the 12-month limit on
incarceration may be exceeded, even when jail time is imposed pursuant MCL
769.34(4)(a). “Probation with jail” is explicitly listed as an intermediate sanction
in MCL 769.31(b)(iv). Yet if a judge imposes an initial jail term of 12 months or
less with a term of probation, the term of probation effectively becomes
meaningless.53 For if a judge may never impose additional imprisonment, he is
unable to revoke probation. This is because, when revoking probation, “the court
may sentence the probationer in the same manner and to the same penalty as the
court might have done if the probation order had never been made.” MCL 771.4.
But to avoid placing a defendant in double jeopardy by punishing him twice for
53
Justice Kelly contrasts a situation in which a defendant is sentenced only
to 12 months or less of jail time without a period of probation. Post at 17 n 12. A
judge may simply sentence a defendant to jail with no further monitoring or
evaluation. But the statute also empowers the judge to impose both jail and
probation. It is this latter option that Justice Kelly’s analysis would render
impossible to exercise.
32
the same offense, a judge must subtract the initial jail term from any term of
incarceration he imposes upon revocation and resentencing.54 If the judge could
not depart upward by considering postprobation factors, such as the defendant’s
probation-violating behavior, the judge would be effectively unable to revoke
probation or resentence the defendant because the judge would have exhausted his
ability to impose jail time. The same problem would occur even when a judge
initially sentenced a defendant only to probation; if the defendant continually
violated probation after multiple revocations and one or more short jail sentences,
the judge would quickly lose the ability to revoke probation by exhausting the 12
months of available jail time. The overall result would be essentially to make 12
months of jail or less the only sanction truly available to judges in the intermediate
sanction cell context; after a defendant had served 12 months in jail, a judge would
have no means to enforce the conditions of other sanctions such as probation.55
In sum, we find no basis for the conclusion that the Legislature intended an
intermediate sanction to become a new statutory maximum for Blakely purposes
54
People v Sturdivant, 412 Mich 92; 312 NW2d 622 (1981), mod People v
Whiteside, 437 Mich 188 (1991); see also North Carolina v Pearce, 395 US 711;
89 S Ct 2072; 23 L Ed 2d 656 (1969), overruled in part on other grounds by
Alabama v Smith, 490 US 794 (1989).
55
Justice Kelly essentially treats the 12-month jail term as the only
meaningful measure of an intermediate sanction, saying that the term “defines the
upper limit of an intermediate sanction cell sentence[.]” Post at 15. But because
intermediate sanctions can include a jail term added to other sanctions, any
characterization of the “upper limit” of an intermediate sanction must take into
account the nature and effect of additional sanctions such as probation.
33
when a defendant’s minimum sentence range is in an intermediate sanction cell.56
To hold otherwise ignores the definition and function of intermediate sanctions
such as probation and deprives them of their intended effect. Further, imposition
of an intermediate sanction never affects the maximum sentence “provided by
law,” MCL 769.8(1), as listed in MCL 777.11 et seq., for the crime of which the
defendant has been convicted. When statutes, such as those listed in MCL 777.11
et seq., establish absolute maximum sentences on the basis of the elements of the
offense, it is entirely within a legislature’s province to authorize judges to exercise
their discretion and expertise when sentencing defendants below those maximum
limits, as they do by sentencing and monitoring probationers, as well as by
subsequently revoking a probationary sentence, if appropriate. As Justice
Kennedy lucidly explained in his plurality opinion in Harris v United States, 536
US 545, 567; 122 S Ct 2406; 153 L Ed 2d 524 (2002) (Kennedy, J., joined by
Rehnquist, CJ., and O’Connor and Scalia, JJ.):
56
Moreover, we disagree with Justice Kelly that, “[e]ven if the Legislature
intended [that probation violators be punished with more than 12 months in jail], it
is irrelevant.” Post at 21. As we have explained, the Legislature has successfully
conveyed its intent—and therefore has also put potential offenders on notice—that
no defendant is guaranteed a sentence of only 12 months’ jail time merely because
his minimum sentence range under the guidelines falls into an intermediate
sanction cell. Thus, even under Justice Kelly’s theory that the legislative scheme
appears to improperly shift sentencing discretion to judges under limited
circumstances, the Legislature’s clear intent in this area would require a result like
the one employed in Booker. There the United States Supreme Court rendered the
offending portions of the federal sentencing guidelines advisory in order to best
effectuate Congress’s intent in enacting them. Booker, supra at 245, 265.
34
Read together, McMillan [v Pennsylvania, 477 US 79; 106 S
Ct 2411; 91 L Ed 2d 67 (1986)] and Apprendi mean that those facts
setting the outer limits of a sentence, and of the judicial power to
impose it, are the elements of the crime for the purposes of the
constitutional analysis. Within the range authorized by the jury’s
verdict, however, the political system may channel judicial
discretion—and rely upon judicial expertise—by requiring
defendants to serve minimum terms after judges make certain factual
findings.
Our Legislature clearly limits sentencing judges’ exercise of discretion when it
sees fit to do so, as exemplified by the crimes for which judges must impose
statutorily mandated terms, such as life in prison, MCL 769.9(1), or a determinate
number of years, MCL 750.227b. Blakely does not foreclose the Legislature’s
concomitant ability to define circumstances under which a judge may exercise
sentencing discretion within the outer limit authorized by the jury verdict, as in the
intermediate sanction context.
In Michigan, every offender is on notice of the maximum sentence to which
he is subject on the basis of the elements of the crime when he is convicted either
by a jury or as the result of a plea, as is exemplified by these cases. In Harper, for
instance, before Harper pleaded guilty of larceny in a building the judge informed
him, as required by MCR 6.302(B)(2), that the maximum penalty for the crime is
four years in prison.57 The judge also specifically responded when Harper stated
that he had heard that the judge “was a fair judge and wouldn’t go over the
57
See MCL 777.16r.
35
guidelines . . . .” The judge explained, first, that lawyers’ initial guidelines
estimations are often wrong. The judge added:
. . . I don’t know what your history is, I might wanna drop a
big hammer on you or I might just decide to give you a feather and
tell you to walk out of the door, I don’t know what I’m going to do
and I’m not making any predications today . . . .
When asked if he understood this, Harper responded: “Yes, sir, your Honor.”
When asked if anyone had told him that the judge would “go easy on” him, Harper
answered: “No, sir.” The judge continued:
Now, I’ve asked you all those kinds of questions because you
could file an appeal later on and you could say that there was
something else going on, for example, like Mr. Harper could say that
his lawyer promised him that he would get no worse than jail or
probation and I decide to send him off to prison . . . .
Finally, just before Harper established the factual basis for his plea, the judge
explained:
. . . I could sentence you to go to jail, or I could sentence you
to probation, or I could fine you up to 5,000 dollars, I can make you
pay a bunch of court cost[s], I could even send you off to prison as
long as four years, do you understand?
Harper responded: “Yes, sir.”58
In contrast, the defendant in Cunningham did not have the same
expectation under California’s DSL. California’s determinate scheme was
58
The record in Burns does not contain a transcript of the plea hearing, but
Burns does not contend that the trial judge failed to advise him of the five-year
maximum prison sentence for attempted breaking and entering, as the judge was
required to do under MCR 6.302(B)(2).
36
premised on a defendant’s right to a fixed, middle term sentence. The DSL then
permitted the judge, after conviction, to sentence a defendant to a higher or lower
term based on judicial fact-finding.59 Thus, upon conviction of continuous sexual
abuse of a child, the Cunningham defendant had a legal entitlement to the
statutory middle term of 12 years’ imprisonment. The sentencing judge violated
Blakely by sentencing him to 16 years on the basis of the judge’s own findings.60
Significantly, the Supreme Court of California attempted to justify its scheme
based on its conclusion that, “‘in operation and effect,’ . . . the DSL ‘simply
authorize[s] a sentencing court to engage in the type of factfinding that
traditionally has been incident to the judge’s selection of an appropriate sentence
within a statutorily prescribed sentencing range.’” Cunningham, supra, 127 S Ct
at 868, quoting People v Black, 35 Cal 4th 1238, 1254; 29 Cal Rptr 3d 740; 113
P3d 534 (2005), vacated sub nom Black v California ___ US ___; 127 S Ct 1210(2007). The Cunningham Court rejected this reasoning, stating: “If the jury’s
verdict alone does not authorize the sentence, if, instead, the judge must find an
additional fact to impose the longer term, the Sixth Amendment requirement is not
satisfied.” Cunningham, supra, 127 S Ct at 869.
Michigan’s scheme is inherently different from California’s DSL, however,
as we have explained. We need not attempt to invoke sentencing judges’
59
Cunningham, supra, 127 S Ct at 861-862.
37
traditional discretion in order to avoid the plain language of our statute. Under the
plain language of the DSL, the elements of the crime entitled a defendant to a
presumptive middle term. Therefore, the DSL is like the hypothetical determinate
system described in Blakely “that punishes burglary with a 10-year sentence, with
another 30 added for use of a gun . . . .”61 In such a system, “the burglar who
enters a home unarmed is entitled to no more than a 10-year sentence . . . .”62
Under the plain language of our sentencing scheme, on the other hand, Harper was
entitled to the statutory maximum of four years’ imprisonment when he pleaded
guilty of larceny in a building, as he agreed he was fully aware, and Burns was
entitled to the statutory maximum of five years’ imprisonment when he pleaded
guilty of attempted breaking and entering of a building. Thus, our system mirrors
the Blakely Court’s hypothetical indeterminate system “that says the judge may
punish burglary with 10 to 40 years,” and, therefore, under which “every burglar
knows he is risking 40 years in jail.”63
Our statutes clearly describe the range of intermediate options available to
the sentencing judge, and the nature and effect of those options, when a
defendant’s minimum sentence range under the guidelines is in an intermediate
(…continued)
60
Id., 127 S Ct at 868.
61
Blakely, supra at 309.
62
Id.63
Id.38
sanction cell. A defendant is not entitled to a circumscribed term of prison when
he qualifies for an intermediate sanction, as was the case with the middle term
prescribed by California’s DSL. Rather, a Michigan defendant expects a range of
possible sanctions, including jail and probation. He is also clearly aware that
probation may be revoked—and that additional incarceration may therefore be
imposed—at a hearing subject to a lower standard of proof than that required at
trial. These clear expectations on the part of defendants are what cause us to reject
Justice Kelly’s contention that “[t]here is no meaningful difference between a
Michigan court departing from an intermediate sanction cell and a California court
imposing the upper term available under [the DSL].” Post at 14. A Michigan
defendant is fully on notice that he never gains an entitlement to a mere 12 months
in jail.
In sum, as is exemplified by these cases, Michigan’s intermediate sanction
cells are part of the legislative scheme for setting a minimum sentence that is
tailored to the offender’s history and the circumstances of the offense. The
statutes governing a sentencing court’s imposition of a minimum sentence never
allow a judge to exceed the maximum sentence authorized by a jury verdict or a
guilty plea. Even when a defendant’s minimum sentence range is in an
intermediate sanction cell, the Legislature made clear its intent that the sentencing
judge retain the discretion to exceed the list of intermediate sanctions, and to
39
impose a minimum sentence of up to ⅔ of the statutory maximum, if an
intermediate sanction is inappropriate in a given case.
When a defendant’s minimum sentence range under the guidelines is in an
intermediate sanction cell, the defendant has a statutory right to an intermediate
sanction, conditioned on the absence of substantial and compelling reasons to
depart upward. Therefore, a defendant may appeal an upward departure on the
basis of an alleged violation of this statutory right by arguing that the sentencing
judge did not state on the record a legally sufficient substantial and compelling
reason to depart. But the defendant does not gain a constitutional right to an
intermediate sanction under Blakely. Indeed, the essence of defendants’
arguments here is that Blakely entitles them to a sentence that is less than the
maximum authorized by the jury verdict or the guilty plea. But Blakely, which
prohibits a judge from exceeding the maximum authorized by the jury verdict or
the guilty plea, does not require this result. Allowing judges to impose any
sentence that is less than the authorized maximum does not implicate a
defendant’s Sixth Amendment rights because it does not usurp the jury’s task of
finding the facts that set the maximum sentence. Thus, in the intermediate
sanction cell context, because the defendant’s sentence never exceeds the
maximum sentence authorized by the jury verdict or the guilty plea, the sentencing
judge may exercise his statutorily granted discretion to depart upward on the basis
of facts not found by a jury.
40
In Harper, faced with intermediate options such as jail and probation, the
sentencing judge observed several factors, including, most significantly, Harper’s
record of bench warrants, his three parole revocations, and his history of
absconding from parole. These factors were not included in Harper’s PRV score,
and they certainly cast doubt on the appropriateness of a sentence that would again
include probation. As a result, these factors alone constituted substantial and
compelling reasons to sentence Harper to the jurisdiction of the Department of
Corrections. Accordingly, we affirm Harper’s sentence.
In Burns, the judge found substantial and compelling reasons to exceed the
guidelines on the basis of Burns’s admission to the officer that he had touched a
young woman’s buttocks and the uncontroverted testimony of two young women
that Burns had harassed and intimidated them. This evidence was not considered
in scoring the guidelines for Burns originally because it occurred after the judge
had originally sentenced Burns to three years of probation. Burns’s objective and
verifiable behavior while on probation certainly provided substantial and
compelling reasons to sentence Burns to the jurisdiction of the department of
corrections rather than impose an intermediate sanction. Accordingly, we affirm
Burns’s sentence.
C. HARMLESS ERROR UNDER BLAKELY
Finally, we find it important to note that Blakely errors are reviewed for
harmless error. Accordingly, we add that even if an intermediate sanction is
41
construed as a maximum sentence for Blakely purposes, in each of these cases, if
an error occurred, it was harmless beyond a reasonable doubt.
In Washington v Recuenco, ___ US ___; 126 S Ct 2546, 2553; 165 L Ed 2d
466 (2006), the United States Supreme Court ruled that Blakely errors are not
structural, but are subject to harmless error analysis. The Court had already
rejected the argument that failure to submit aggravating facts to a jury offends a
“watershed” rule of criminal procedure, such that it undermines the fairness and
accuracy of the overall proceeding, in Schriro v Summerlin, 542 US 348, 355-356;
124 S Ct 2519; 159 L Ed 2d 442 (2004) (holding that such errors do not offend
any “watershed” rule of criminal procedure to the extent of requiring retroactive
application). In Schriro, the Court explained that it could not “confidently say that
judicial factfinding seriously diminishes accuracy.” Id. at 356.
Recuenco compared Blakely errors to the error analyzed in Neder v United
States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999). Neder involved a jury
trial for charges that included tax fraud.64 One element of the offenses was the
materiality of the fraudulent representation on the defendant’s tax form. The trial
court constitutionally erred when it failed to submit the question of materiality—as
an element of the offense—to the jury and, instead, decided the issue itself.65 The
error was harmless, however, because uncontested facts presented at trial showed
64
Neder, supra at 4.
42
that the misrepresentation—which consisted of the defendant’s failure to report $5
million of income—was material. Indeed, the defendant did not suggest that he
could introduce any contrary evidence, and he did not argue to the jury, or to the
courts on appeal, that his false statements could be found immaterial.66
Accordingly, the judge’s conclusion that the element of materiality was proved
was harmless beyond a reasonable doubt because no jury could reasonably find
otherwise.67 The Court summarized the analysis as follows: “In this situation,
where a reviewing court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless.” Id. at 17.
Recuenco, in turn, concluded that a similar analysis is appropriate if a trial
court fails to submit sentencing factors to a jury, because there is no distinction,
for Sixth Amendment purposes, between an element of an offense and a
sentencing factor that increases a sentence beyond the sentence authorized by the
elements of the offense.68 The Washington Supreme Court had previously held
(…continued)
65
Id.66
Id. at 15-16.
67
Id. at 16.
68
Recuenco, supra, 126 S Ct at 2552-2553.
43
that Blakely errors are structural.69 The Recuenco Court disagreed and remanded
the case, directing the Washington courts to analyze whether the error was
harmless.70
69
Id., 126 S Ct at 2550.
70
Id., 126 S Ct at 2553. Justice Kelly’s position would ultimately render
Blakely errors in Michigan harmful per se because Michigan “has no process for
criminal juries to make special findings of fact.” She states that “the procedural
discussion in Recuenco suggests that the prosecution could not carry its burden in
this case to prove the Blakely error harmless beyond a reasonable doubt.” Post at
25-26. When the defendant posed this argument in Recuenco, the United States
Supreme Court did not need to resolve the question. Rather, the question before
the Court was “whether Blakely error can ever be deemed harmless.” Recuenco,
supra, 126 S Ct at 2550-2551. Contrary to Justice Kelly’s contention, it was
unclear whether Washington “state law specifically allowed juries to make
findings of fact.” Post at 26. The high court left this question to the Washington
courts on remand. Recuenco, supra, 126 S Ct at 2550-2551. In any event, the
Recuenco Court questioned the defendant’s interpretation of Washington law,
observing that the Washington Court of Appeals had allowed juries to issue
special verdicts on aggravating factors and the Washington Supreme Court had
explicitly chosen not to establish a contrary rule in a case that did not squarely
present the question. Id., 126 S Ct at 2550.
Similarly, Michigan law is not perfectly clear on this point. Justice Kelly
points to two nineteenth century cases in which this Court refused to allow the use
of special questions in criminal cases because such questions “limit[] . . . the right
of the jury to find a general verdict,” People v Roat, 117 Mich 578, 583; 76 NW
91 (1898), and because the then-governing statutes did not clearly permit it,
People v Marion, 29 Mich 31, 40-41 (1874). We note that, more recently, Justice
Levin observed, in his dissent in People v Ramsey, 422 Mich 500, 536; 375 NW2d
297 (1985), that many jurisdictions have concluded that not all use of special
verdicts is error per se because specific findings of fact may be necessary to
determine the nature of the conviction or the sentence. Indeed, the Michigan
Court of Appeals has implicitly condoned the use of special verdict forms
enabling a jury to find a particular fact under some circumstances. See People v
Matuszak, 263 Mich App 42, 51; 687 NW2d 342 (2004); People v Kiczenski, 118
Mich App 341, 345; 324 NW2d 614 (1982).
(continued…)
44
1. HARPER
In Harper, defendant preserved the constitutional challenge to his sentence
by raising this issue in a motion for resentencing before the circuit court. Thus, as
in Neder, our review must consider whether the alleged error is harmless beyond a
reasonable doubt.71
The sentencing judge here exceeded the list of intermediate sanctions, and
imposed a prison sentence on the basis of facts contained in the presentence
investigation report (PSIR). Contrary to Justice Kelly’s contention that “Harper
had no opportunity to present contrary evidence,” post at 27, the judge permitted
(…continued)
Most significantly, the Recuenco Court did not reach the question whether
the unavailability of a particular procedure in the trial court necessarily renders all
errors harmful, in essence transforming Blakely errors into structural errors for all
defendants in a given state. As Justice Kelly ultimately concedes, at most
Recuenco “advises [that] the lack of a procedure for special findings will increase
the difficulty of the prosecution’s burden to prove any error harmless beyond a
reasonable doubt.” Post at 26 n 18. Moreover, any conclusion on our part—based
on dicta in Recuenco—that the lack of a procedure is alone dispositive would run
counter to the crux of the harmless error analysis that forms the basis of the
Recuenco Court’s holding. The central question remains whether the facts used by
a sentencing judge to support a sentence were “uncontested and supported by
overwhelming evidence,” such that a jury would have reached the same result.
Neder, supra at 17. To illustrate, as we will explain further in parts III(C)(1) and
(2) of this opinion, neither defendant in the cases before us seriously contends that
a jury would have returned findings different from those of the sentencing judge,
given the overwhelming evidence presented at each proceeding. Thus, even if the
sentencing judges erred under Blakely, the errors in these cases would be precisely
the sort of technical errors that do not require reversal under a harmless error
analysis because they do not affect the substance or outcome of the proceedings.
71
Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967);
People v Shepherd, 472 Mich 343; 697 NW2d 144 (2005).
45
Harper and his attorney to review the PSIR and to challenge the accuracy of its
contents, as required by MCL 771.14(5) and (6). The judge also specifically
explained to Harper the importance of noting inaccuracies, saying: “Now,
sometimes they make mistakes on those reports and if they do it’s important that
you catch them, Mr. Harper, because we keep these reports for years and if there is
a mistake now it could be used against you next year . . . .” Harper stated that he
had read the PSIR. When asked if he saw any mistakes, he pointed out that a prior
felony conviction had not been included, previously, when his attorney estimated
his PRV score. He agreed that he understood that the felony was properly added,
however, and stated: “I’m not contesting anything . . . .” Defense counsel also
specifically indicated that “we ha[ve] reviewed this report, I have no additions,
corrections or deletions to the report.”72
Now, on appeal, Harper makes no claim that his record—of parole
revocations, absconding from parole, bench warrants for failures to appear, and
run-ins with law enforcement in other states—is inaccurate. During his oral
72
We also note, first, that Michigan courts have long held that a sentencing
court may presume that unchallenged facts contained in a PSIR are accurate.
People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). Second, we do
not need to reach the question whether Harper effectively admitted the facts
contained in the PSIR or waived his rights under Blakely, as is expressly permitted
by the Blakely Court when a defendant pleads guilty. Blakely, supra at 310. In
light of Harper’s express agreement that no corrections to the PSIR were
necessary, however, we note that, under many circumstances, a defendant waives
a right—and, for purposes of review, extinguishes rather than merely forfeits
(continued…)
46
argument before this Court, he mounted a slight challenge to the sentencing
judge’s conclusion that he had “ripped off a charity that was trying to do good for
cold children.” He claimed that “[n]othing at the plea talked about stealing coats
from children,” adding that, although Old News Boys is a “charity that served
needy people . . . , there’s lots of different needy people adult and children . . . .”
On this point, we simply note that, at the sentencing hearing, the president of Old
News Boys explained that the organization served “needy children and families
who are less fortunate.”
Therefore, we conclude beyond a reasonable doubt that the facts used by
the sentencing judge to support Harper’s sentence were “uncontested and
supported by overwhelming evidence,” such that a jury would have reached the
same result.73 Indeed, like the defendant in Neder, Harper does not suggest that he
would offer contrary evidence, particularly concerning the facts contained in his
court records, if given the opportunity to do so.74 Accordingly, if the judge is
found to have violated Blakely at sentencing, any error is harmless beyond a
reasonable doubt and does not require reversal.
(…continued)
error—when the defendant affirmatively agrees to a course of action in the trial
court. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
73
Neder, supra at 17.
74
Id. at 15-16.
47
2. BURNS
Similarly, in Burns, we conclude that if any Blakely error is found to have
occurred, it would be harmless beyond a reasonable doubt.75 At sentencing on the
probation violation, the judge relied on evidence presented at the probation
violation hearing to conclude that substantial and compelling reasons existed to
depart from the original guidelines sentence. At the hearing, defense counsel did
not contest that his client had touched the young woman’s buttocks, nor did he
contest that his client had used alcohol in violation of his probation order. Burns
himself admitted to the officer that the sexual touching had occurred and that he
had consumed six beers. The defense presented no evidence and called no
witnesses to contest these facts, despite having an opportunity to do so. We thus
conclude beyond a reasonable doubt that the facts used by the sentencing judge to
support Burns’s sentence were “uncontested and supported by overwhelming
evidence,” such that a jury would have reached the same result.76
IV. CONCLUSION
For these reasons, we reaffirm our holding in Drohan that Michigan has a
true indeterminate sentencing system in which the statutory maximum is
prescribed by law and in which the sentencing guidelines are used only to
75
As in Harper, the defendant in Burns preserved the Blakely issue by
raising it in a motion for resentencing. Thus, we review whether the alleged error
is harmless beyond a reasonable doubt.
48
determine a defendant’s minimum sentence. An intermediate sanction does not
constitute a maximum sentence under Blakely; it bears no relation to the maximum
sentence authorized by the jury verdict or the guilty plea. Rather, it establishes a
statutory right to a cap on the defendant’s period of incarceration, conditioned on
the absence of substantial and compelling reasons to depart upward. Significantly,
accepting defendants’ arguments in these cases would require us to conclude that
Blakely guarantees them a right to sentences that are less than those authorized by
a jury verdict or guilty plea; to the contrary, Blakely prohibits a sentencing judge
from exceeding the sentence authorized by the verdict or plea. Agreeing with
defendants would also deprive intermediate sanctions such as probation of much
of their intended effect. Finally, if any Blakely error is found to exist in either of
these cases, we are convinced that any such errors were harmless beyond a
reasonable doubt, given that the facts used by the sentencing judges were
uncontested and supported by overwhelming evidence, such that a jury would
have reached the same result. Accordingly, we affirm the defendants’ convictions
and sentences.
Maura D. Corrigan
(…continued)
76
Neder, supra at 17.
49
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
50
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 130988
BERNARD GEORGE HARPER, JR.,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 131898
JESSE GENE BURNS,
Defendant-Appellant.
CAVANAGH, J. (concurring in part and dissenting in part).
I concur with the result reached by the majority in People v Harper. Facts
admitted by a defendant may be used by a trial court to determine the relevant
statutory maximum. See Blakely v Washington, 542 US 296, 303; 124 S Ct 2531;
159 L Ed 2d 403 (2004). In light of the guidance and admonitions given by the
trial court, I believe that defendant Harper admitted to the facts used by the trial
court to sentence defendant when he pleaded guilty and stated that he did not
contest the information in the presentence investigation report.
Moreover, I concur with the result advocated by Justice Kelly in her dissent
in People v Burns. I agree that the trial court did not articulate substantial and
compelling reasons to depart from the sentencing guidelines. See People v
Babcock, 469 Mich 247; 666 NW2d 231 (2003). Thus, this case should be
remanded for resentencing. Because the trial court did not comply with the
requirements for sentencing and this case can be decided on statutory grounds, it is
improper to address the constitutional issue decided by the majority.
Michael F. Cavanagh
2
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 130988
BERNARD GEORGE HARPER, JR.,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 131898
JESSE GENE BURNS,
Defendant-Appellant.
KELLY, J. (dissenting).
The Court heard oral argument in these cases along with People v
McCuller, which was on remand to us from the United States Supreme Court.
Michigan v McCuller, __ US ___; 127 S Ct 1247 (2007). My dissenting opinion
in McCuller contains my most thorough analysis of the application of the Sixth
Amendment1 to the Michigan sentencing guidelines.2 People v McCuller, 479
Mich ___; ___ NW2d ___ (Docket No. 128161, decided July 26, 2007). For a full
understanding of the issues involved, I urge the reader to turn to my dissent in that
case.
With respect to Burns, this Court should not even reach the constitutional
issue. The trial court failed to articulate substantial and compelling reasons to
exceed the range set by the sentencing guidelines. Because of this, defendant
Jesse Burns is entitled to resentencing, irrespective of the constitutional issue.
In Harper, the majority continues to exempt Michigan from the Sixth
Amendment precedent set by the United States Supreme Court in Jones v United
States3 and its progeny. However, it is clear to me that the judicial fact-finding
that took place in Harper violated Bernard Harper’s Sixth Amendment right to a
trial by jury. In fact, the violation is even clearer than the violation in McCuller.
Michigan’s sentencing guidelines are unconstitutional as applied. I would vacate
1
The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence. [US Const, Am VI.]
2
MCL 777.1 et seq.
2
the sentence and remand the case to the trial court for resentencing in a manner
that conforms to the Sixth Amendment.
I. PEOPLE V BURNS
A. PROCEDURAL FACTS
In July 2002, Burns pleaded guilty of attempted breaking and entering.
MCL 750.110; MCL 750.92. It is undisputed that the guidelines range for his
minimum sentence was zero to 11 months. This range falls in what is properly
referred to as an intermediate sanction cell. MCL 769.34(4)(a) creates these cells.
It provides:
If the upper limit of the recommended minimum sentence
range for a defendant determined under the sentencing guidelines set
forth in chapter XVII is 18 months or less, the court shall impose an
intermediate sanction unless the court states on the record a
substantial and compelling reason to sentence the individual to the
jurisdiction of the department of corrections. An intermediate
sanction may include a jail term that does not exceed the upper limit
of the recommended minimum sentence range or 12 months,
whichever is less.
Pursuant to MCL 769.31(b), one possible intermediate sanction is probation. The
trial court in this case chose that option and sentenced Burns to three years’
probation.
In 2005, the court found, by a preponderance of the evidence, that Burns
had violated his probation. At sentencing, the court noted that the original range
(…continued)
3
526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999).
3
had been zero to 11 months.4 But it decided to exceed the range given in the
intermediate sanction cell and not impose an intermediate sanction. It sentenced
Burns to 1 1/2 to five years in prison.
Because the court did not impose an intermediate sanction as a sentence, it
had to articulate a substantial and compelling reason for the departure. MCL
769.34(4)(a). The court completed a sentencing information report departure
evaluation form stating its reason:
The original SGL of 0-11months [sic] fails to consider his
violation behavior—which constitutes a substantial and compelling
reason for a moderate departure from this range.
No additional reasons were given.
B. SUBSTANTIAL AND COMPELLING REASONS FOR THE GUIDELINES DEPARTURE
The trial court’s statement in support of its departure does not constitute a
substantial and compelling reason to exceed the sentencing guidelines range.
The phrase “substantial and compelling reason” has, in our
judgment, acquired a peculiar and appropriate meaning in the law
and, thus, it must be construed according to such meaning. That is, a
“substantial and compelling reason” must be construed to mean an
“objective and verifiable” reason that “‘keenly’ or ‘irresistibly’ grabs
our attention”; is “of ‘considerable worth’ in deciding the length of a
sentence”; and “exists only in exceptional cases.” [People v
Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003), quoting
People v Fields, 448 Mich 58, 62, 67-68; 528 NW2d 176 (1995).]
4
The sentencing court is required to apply the sentencing guidelines when
sentencing after a probation violation. People v Hendrick, 472 Mich 555, 560;
697 NW2d 511 (2005).
4
Whether a reason for departure is objective and verifiable is a question of law
subject to review de novo. Babcock, 469 Mich at 265.
In this case, the court relied solely on Burns’s postprobation conduct to
exceed the guidelines range. A sentencing court may consider postprobation
conduct when determining whether substantial and compelling reasons exist to
depart upward. But the fact that probation was violated does not automatically
constitute a substantial and compelling reason. People v Hendrick, 472 Mich 555,
562-563; 697 NW2d 511 (2005). The trial court’s statement on the departure
evaluation form does not satisfy Hendrick’s requirement.
By simply referring to Burns’s “violation behavior,” the court did nothing
more than repeat the fact that Burns had violated the terms of his probation. The
statement did not explain why his behavior separated Burns from the typical
probation violator. It did not explain why this particular departure was warranted,
or why this is an “exceptional case[]” warranting a departure. Babcock, 469 Mich
at 258. And it said nothing about why this case should “keenly or irresistibly”
seize our attention. Id. Without such detail, the stated reason for departure is
insufficient. Id.; Hendrick, 472 Mich at 563. And Burns must be remanded to the
trial court for resentencing. MCL 769.34(11).
The majority turns to the sentencing transcript to bolster the trial court’s
stated reason for departure. This is inappropriate. A reviewing court may not
search the record to find its own substantial and compelling reason to depart.
5
Instead, it must rely on the reasons stated by the trial court. If they are
insufficient, the review must end there, and the case must be remanded for
resentencing. Babcock, 469 Mich at 273 (appendix to majority opinion).
But even if we were to refer to the sentencing transcript, a substantial and
compelling reason justifying the departure cannot be found. The only statement in
the record that might constitute a reason for departure is the following statement
by the court:
I seldom ever exceed guidelines, in fact I can’t recall a time
that I have, but I’m going to in your case. The behavior that you
exhibited here certainly is not or was not contemplated in arriving at
your original guidelines. It was gross, it was abusive, and I believe
there’s a compelling reason to exceed guidelines.
One could infer from this that the court intended to depart because Burns’s
behavior was “gross” and “abusive.”
These are subjective words. Whether conduct is “gross” and “abusive” is a
determination that changes depending on who is reviewing it. It could vary
drastically according to a person’s culture, upbringing, religion, and education.
Because of its subjective nature, a finding that actions were “gross” and “abusive”
cannot be a substantial and compelling reason to depart from the sentencing
guidelines. Babcock, 469 Mich at 257-258. Burns must be resentenced. MCL
769.34(11).5
5
The Michigan Department of Corrections paroled Burns on November 14,
2006. But the parole does not render moot the discussion of his sentence. Burns
(continued…)
6
Therefore, no need exists to reach the Sixth Amendment question in this
case. It is a well-accepted rule that an appellate court will not grapple with a
constitutional issue if a case can be decided on other grounds. J & J Constr Co v
Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728
(2003); Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211,
234; 507 NW2d 422 (1993). The majority disregards this rule without providing
its reason. At the very least, the majority should have addressed the Babcock issue
before undertaking the application of Blakely v Washington6 here. If it had done
so, the constitutional issue could have been avoided entirely.7
(…continued)
remains under supervision until November 14, 2007. See Offender Tracking
Information System, available at

(accessed June 28, 2007). Until that date, he faces the potential of parole
revocation and could be returned to prison for the remainder of his five-year
maximum sentence. Were the Court to order him resentenced, however, and were
the trial court to impose the intermediate sanction cell maximum sentence of 11
months in jail, Burns would be released from supervision. And he would not face
the potential of returning to prison.
6
542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
7
Because I find that no substantial and compelling reason to depart was
articulated in this case, I need not address whether the court’s departure violated
the Sixth Amendment. But I note that my analysis from McCuller, 479 Mich at
___, and my discussion of Harper here would apply equally to Burns had the trial
court found appropriate reasons to depart. Therefore, if the reasons stated to
depart had been objective and verifiable, I would have remanded the case for
resentencing because of the Blakely violation.
7
II. PEOPLE V HARPER
A. PROCEDURAL FACTS
Harper pleaded guilty of larceny in a building under MCL 750.360, which
provides:
Any person who shall commit the crime of larceny by
stealing in any dwelling house, house trailer, office, store, gasoline
service station, shop, warehouse, mill, factory, hotel, school, barn,
granary, ship, boat, vessel, church, house of worship, locker room or
any building used by the public shall be guilty of a felony.
This is a class G offense with an absolute maximum sentence of four years in
prison. MCL 750.503; MCL 777.16r.
Before imposing sentence, the trial court calculated a score for both the
prior record variables (PRVs) and the offense variables (OVs). It scored 50 points
for PRV 1 because of defendant’s two prior high-severity felony convictions.
MCL 777.51(1)(b). It scored 20 points for PRV 2 because of defendant’s three
prior low-severity felony convictions. MCL 777.52(1)(b). And it scored 2 points
for PRV 5 because of defendant’s prior misdemeanor conviction. MCL
777.55(1)(e). The court also scored 5 points for OV 16. To do so, it made a
finding of fact using a preponderance of the evidence standard. It found that the
stolen property in question “had a value of $1,000.00 or more but not more than
$20,000.00.” MCL 777.46(1)(c). Harper did not admit the value of the stolen
property.
8
MCL 777.68 sets forth the class G sentencing grid. On this grid, a PRV
level of 72 points and an OV level of 5 points converge in cell E-I. This cell
provides a minimum sentence range of zero to 17 months. MCL 777.68. Had the
trial court not scored 5 points for OV 16, Harper’s OV level would have been zero
points. This would not have changed his minimum sentence range under the
guidelines. A PRV level of 72 points and an OV level of zero points still converge
in cell E-I. MCL 777.68. Because the judicial findings necessary to score OV 16
did not change the range, they are immaterial to this case.
In light of the fact that the top end of the guidelines range is less than 18
months, Harper’s minimum sentence range is in an intermediate sanction cell.
This means that his sentence must not exceed 12 months in jail, absent substantial
and compelling reasons to depart. MCL 769.34(4)(a). The trial court imposed a
sentence of 24 to 48 months in prison.8 It prepared a sentencing information
report departure evaluation form stating its reasons for the upward departure:
8
The Michigan Department of Corrections paroled Harper on February 14,
2007. The parole does not make discussion of his sentence moot. He remains
under supervision until August 14, 2008. See Offender Tracking Information
System, available at

(accessed June 28, 2007). On resentencing, were the trial court to impose the
intermediate sanction cell maximum sentence of 12 months in jail, Harper would
be released from supervision immediately, with no potential of returning to prison.
9
Guidelines do not include at least 3 parole revocations,
abscondings from probation, Bench warrants from various courts
and stealing from a charity that serves freezing children[.]
B. SUBSTANTIAL AND COMPELLING REASONS FOR THE UPWARD DEPARTURE
In this case, the reasons stated for departure survive review under Babcock.
The parole revocations, the abscondings from probation, and the bench warrants
could be objectively verified using court files and the records of the Department of
Corrections. These facts were of “considerable worth” in determining Harper’s
sentence because they demonstrated a pattern of failing to meet legally imposed
expectations and minimum societal behavioral requirements. Therefore, they
provided substantial and compelling reasons to exceed an intermediate sanction at
sentencing. Babcock, 469 Mich at 257-258.
The final stated reason, “stealing from a charity that serves freezing
children,” was also substantial and compelling. It is undisputed that Harper stole
from the Old Newsboys, a charity associated with Goodfellows. While the
“freezing children” comment could be viewed as hyperbole, it is undisputed that
the charity is dedicated to helping needy families and children. One of its
missions is to provide winter coats. Because of this, I would find that the final
reason for departure was objective and verifiable. The fact that Harper stole from
a charity was of considerable importance at sentencing, given that it distinguished
him from the typical defendant. Because of this, it also satisfied the requirements
of Babcock. Id.
10
The trial court complied with the sentencing guidelines requirements and
stated substantial and compelling reasons to depart from an intermediate sanction.
The discussion now must turn to the constitutionality of doing so.
C. BLAKELY’S BRIGHT-LINE RULE
As I explain in McCuller,9 the United States Supreme Court has articulated
a bright-line rule for Sixth Amendment analysis:
Except for a prior conviction, “any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
[Cunningham v California, 549 US __; 127 S Ct 856, 868; 166 L Ed
2d 856 (2007), quoting Apprendi v New Jersey, 530 US 466, 490;
120 S Ct 2348; 147 L Ed 2d 435 (2000).]
The “statutory maximum” sentence is not always the absolute maximum sentence
set by statute.
The dispositive question, we said, “is one not of form, but of
effect.” If a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact—no matter
how the State labels it—must be found by a jury beyond a
reasonable doubt. A defendant may not be “expose[d] . . . to a
penalty exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.” [Ring v
Arizona, 536 US 584, 602; 122 S Ct 2428; 153 L Ed 2d 556 (2002),
quoting Apprendi, 530 US at 483, 494 (citations omitted; emphasis
in Apprendi).]
Therefore, the statutory maximum sentence for Sixth Amendment purposes
is the maximum sentence permissible based on the jury’s verdict, the defendant’s
9
479 Mich at ___ (Kelly, J., dissenting).
11
prior criminal record, and any admissions that the defendant made. It is irrelevant
that the trial court could have found additional facts that could have increased the
sentence. Blakely v Washington, 542 US 296, 303-304; 124 S Ct 2531; 159 L Ed
2d 403 (2004). This rule is necessary to properly protect the people’s control of
the judiciary, as intended by the Framers of the United States Constitution. Id. at
313.
When a defendant is entitled to a sentence that is within the range specified
in an intermediate sanction cell, MCL 769.34(4)(a) sets his or her maximum
sentence. That maximum sentence is a jail term of either the upper limit of the
recommended minimum sentence range or 12 months, whichever is shorter.
Under the guidelines statutes, the court may not exceed this maximum sentence,
unless it can state substantial and compelling reasons to do so. MCL 769.34(4)(a).
Therefore, unlike a typical sentencing in Michigan, the process no longer is
concerned with the defendant’s minimum sentence. Under the Supreme Court’s
bright-line rule, this alteration in focus changes what has become known as the
defendant’s “statutory maximum.”
The new maximum sentence established under MCL 769.34(4)(a) is the
defendant’s “statutory maximum.” This is true because it is the longest sentence
that the court can give a defendant solely on the basis of the defendant’s criminal
record and admissions and the jury’s verdict. Cunningham, 127 S Ct at 868;
United States v Booker, 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d 621 (2005);
12
Blakely, 542 US at 301; Apprendi, 530 US at 490; Jones, 526 US at 251-252. The
effect of making findings of fact that move the sentence to a higher statutory
maximum is that the defendant faces either (1) a different criminal charge or (2)
the increased stigma of an extended sentence. This is specifically what the
Supreme Court sought to avoid. Apprendi, 530 US at 484. Any judicial fact­
finding that lifts the defendant’s sentence above the statutory maximum is
unconstitutional and violates Jones and its progeny.
D. WHY HARPER’S SENTENCE VIOLATES THE SIXTH AMENDMENT
As I explain in McCuller,10 scoring the OVs can violate Blakely’s bright­
line rule. The violation in Harper is particularly clear. Harper’s case closely
mirrors the situation in Cunningham. California’s determinate sentencing law
(DSL) created a three-tiered sentencing system for most crimes. The statute
defining Cunningham’s offense provided a lower, a middle, and an upper
sentence. The California Penal Code mandated that the trial court impose the
middle term, unless circumstances existed that mitigated or aggravated the
offense. Cunningham, 127 S Ct at 861-863. The Supreme Court paid special
attention to the fact that a defendant in California was entitled to the middle
sentence unless the sentencing court made additional findings of fact:
California’s DSL, we note in this context, resembles pre-
Booker federal sentencing in the same ways Washington’s
sentencing system did: The key California Penal Code provision
10
479 Mich at ___ (Kelly, J., dissenting).
13
states that the sentencing court “shall order imposition of the middle
term” absent “circumstances in aggravation or mitigation of the
crime,” [Cal Penal Code] 1170(b) (emphasis added), and any move
to the upper or lower term must be justified by “a concise statement
of the ultimate facts” on which the departure rests, [Cal Ct R]
4.420(e) (emphasis added). [Cunningham, 127 S Ct at 866 n 10
(emphasis in original).]
MCL 769.34(4)(a) contains similar mandatory language: “[T]he court shall
impose an intermediate sanction unless the court states on the record a substantial
and compelling reason to sentence the individual to the jurisdiction of the
department of corrections.” (Emphasis added.) Therefore, just like a defendant in
California, a defendant in Michigan is entitled to an intermediate sanction cell
sentence. And the court is authorized to depart from the sentence only through
judicial fact-finding after the jury verdict. As in California, these findings of fact
need be based only on a preponderance of the evidence.
Hence, as in the California scheme, a sentence resulting from an
intermediate sanction cell in Michigan constitutes a “statutory maximum” for
purposes of Apprendi. Cunningham, 127 S Ct at 868. There is no meaningful
difference between a Michigan court departing from an intermediate sanction cell
and a California court imposing the upper term available under that state’s penal
code. It follows that reversal is mandated in this case.
The majority effectively attempts to rewrite MCL 769.34(4)(a) to make it
provide for no more than a minimum sentence. As I explain in McCuller, the
attempt falls short of its goal. The language of the statute is not ambiguous. “An
14
intermediate sanction may include a jail term that does not exceed the upper limit
of the recommended minimum sentence range or 12 months, whichever is less.”
MCL 769.34(4)(a) (emphasis added). The statute mandates that the sentencing
court impose an intermediate sanction when a defendant falls into an appropriate
cell, unless the court makes judicial findings of fact to support a departure. MCL
769.34(4)(a). It also defines the upper limit of an intermediate sanction cell
sentence: 12 months in jail. Because this is the highest sentence a defendant may
face, it is, in every sense, a maximum sentence. Absent judicial fact-finding, the
trial court has no power to impose even a 13-month sentence. At most, Harper
should have faced 12 months in jail. MCL 769.34(4)(a).11
The majority tries to change this fact by turning to MCL 769.8(1). MCL
769.8(1) states that there are cases in which the sentencing court will not fix the
minimum sentence and in which the absolute maximum sentence will not apply. It
notes that other provisions in that chapter of the Code of Criminal Procedure state
the exceptions to the general rule. MCL 769.34 is in the same chapter. And MCL
769.34(4)(a) provides that the sentencing court sets the maximum sentence.
Therefore, these statutes, read together, show that intermediate sanction cells do
11
The majority claims that a Michigan defendant is liable to serve the
absolute maximum sentence in every case. See ante at 14 n 25. MCL
769.34(4)(a) shows the fallacy of this point. Some Michigan defendants face no
higher maximum than 12 months in jail, even though a second, higher statutory
maximum sentence exists for their crime. This undeniable fact destroys the
majority’s premise that Michigan has only one maximum sentence for each crime.
15
not merely set minimum sentences. The Legislature intended that intermediate
sanction cells set maximum sentences. MCL 769.34(4)(a); MCL 769.8(1). This
Court has no right to change this fact.
Hence, there are two possible maximum sentences for the offense in
question, the absolute statutory maximum and the intermediate sanction cell
statutory maximum. A defendant is entitled to whichever one is supported by his
or her conviction, admissions, and criminal record. “[A]nd by reason of the Sixth
Amendment [any additional] facts bearing upon that entitlement must be found by
a jury.” Blakely, 542 US at 309. Therefore, if other facts are used to move the
defendant to the higher of the two maximum sentences, they must be proved to the
jury beyond a reasonable doubt.
E. MICHIGAN’S MIXED DETERMINATE—INDETERMINATE SENTENCING SCHEME
The majority attempts to justify its conclusion in this case by claiming that
Michigan has a traditional indeterminate sentencing scheme. See id. at 308-309.
The United States Supreme Court has noted that such schemes do not violate the
Sixth Amendment. But because intermediate sanction cells set maximum
sentences, Michigan’s sentencing scheme is distinct from the traditional
indeterminate scheme. For Sixth Amendment purposes, it is properly viewed as a
mixed determinate/indeterminate sentencing scheme. This is because, as
discussed in Blakely, a traditional indeterminate scheme can have only one
maximum sentence. Id. at 308-309. The fact that Michigan’s scheme is different
16
in this way mandates that it be treated differently. Again, this makes Michigan’s
system strikingly similar to California’s system, which the Supreme Court found
unconstitutional in Cunningham.
As I discuss in McCuller, the majority also attempts to distinguish the
Michigan system from a wholly determinate scheme by noting that one possible
intermediate sanction is probation. MCL 769.31(b). To support its argument, the
majority relies on the federal probation system. But Michigan’s probation system
differs greatly from the federal system. Whereas the federal system imposes a
new sentence after a probation violation, the Michigan system merely directs
resentencing using the original sentencing guidelines. See United States v Goffi,
446 F3d 319, 322 (CA 2, 2006), and Hendrick, 472 Mich at 560. Because the
same guidelines apply before and after a probation violation in this state, Blakely
continues to apply after a probation revocation. This completely undermines the
majority’s argument that intermediate sanction cells set only minimum sanctions.12
The Court of Appeals for the Second Circuit explained why Blakely does
not apply to sentencing after a federal probation violation:
The statutory scheme thus requires a sentencing court to
consider a variety of factors, including the non-binding policy
statements applicable to probation violations, in determining an
12
Further undermining the majority’s theory is the fact that intermediate
sanction cell sentences are treated as maximum sentences in Michigan. When a
defendant receives only an intermediate sanction jail sentence, he or she faces that
sentence and nothing more. The defendant is not reevaluated after completing the
sentence to see if prison time is required. Rather, the defendant is set free.
17
appropriate sentence. Nowhere, however, does it require a court to
sentence within the Guidelines range for the underlying conviction
in determining punishment for separate and distinct malfeasance by
the defendant—violation of probation. . . . United States v. Pena,
125 F.3d 285, 287 (5th Cir.1997). (“Because there are no guidelines
for sentencing on revocation of probation, and because the district
court was not limited to the sentencing range available at the time of
the initial sentence, we find no error in the trial court’s failure to
employ the analysis normally required in departure case[s].”) . . . .
[Goffi, 446 F3d at 322-323 (emphasis added).]
The exact opposite is true in Michigan. The guidelines continue to apply to
a Michigan defendant. Hendrick, 472 Mich at 560. The sentencing court is
limited to the sentence range available at the time of the initial sentence. And the
probation violation is not treated as a separate malfeasance in Michigan. People v
Kaczmarek, 464 Mich 478, 483-484; 628 NW2d 484 (2001).
These fundamental differences between the Michigan system and the
federal system mandate different results when Blakely’s bright-line rule is applied.
Because none of the factors relied on by the federal courts exists in Michigan,
Blakely continues to apply after probation revocation in Michigan. This
completely undermines the majority’s argument that, because of the possibility of
probation as an intermediate sanction, intermediate sanction cells produce a
minimum sentence rather than a maximum sentence.13
13
The majority simply disregards the reasoning of Goffi and Pena. And in
doing so, it disregards the distinctions between the two systems. In fact, the two
systems differ greatly. In the federal system, a court no longer sentences under the
guidelines, probation is viewed as a distinct malfeasance, and the former statutory
maximum no longer applies. Goffi, 446 F3d at 322-323; Pena, 125 F3d at 287. In
(continued…)
18
The majority further argues that intermediate sanctions must be minimum
sentences because a defendant subject to them can be given a sentence of
probation with jail. It argues that recognizing that intermediate sanction cell
sentences are statutory maximum sentences will limit the effectiveness of
imposing such sentences. Although it is true that MCL 769.31(b)(iv) allows for
intermediate sanction cell sentences that include both probation and jail, the
majority’s reliance on this point is irrelevant.
The Legislature has determined that a sentence of 12 months in jail is an
appropriate statutory maximum sentence for defendants who merit an intermediate
sanction.14 Our constitution vests the Legislature with the ultimate authority to set
criminal penalties. Const 1963, art 4, § 45; People v Hegwood, 465 Mich 432,
436; 636 NW2d 127 (2001). The Legislature inserted the 12-month limit on jail
sentences in MCL 769.34(4)(a). Only the Legislature, not this Court, may
increase this limit. Someone who believes that the 12-month cap is insufficient
can petition the Legislature to amend the statute. But the Court cannot ignore the
(…continued)
Michigan, probation is not a separate offense, the guidelines still apply, and the
defendant remains subject to the statutory maximum sentence created by MCL
769.34(4)(a). Therefore, unlike the federal system, the Michigan system is still
subject to the Blakely bright-line rule after a defendant violates probation.
14
“An intermediate sanction may include a jail term that does not exceed
the upper limit of the recommended minimum sentence range or 12 months,
whichever is less.” MCL 769.34(4)(a).
19
statutory maximum sentence and a defendant’s Sixth Amendment rights because it
finds the statutory penalty insufficient.
For example, those who believe that 12 months is insufficient incarceration
to punish probation violators could petition the Legislature to change Michigan’s
probation system to mimic the federal system. The Legislature could follow the
lead of Goffi and treat a probation violation as a separate malfeasance. It could
make probation violation subject, not to the guidelines for the underlying offense,
but to independent punishment. See Goffi, 446 F3d at 322-323; Pena, 125 F3d at
287. If the Legislature effected such a change, it could eliminate the Sixth
Amendment violation now lurking in the Michigan system. But, again, this
decision must be left to the Legislature.
Ultimately, and most importantly, the majority cannot disregard the Sixth
Amendment simply because it is convenient for purposes of the status quo or
because it comports with legislative intent. Blakely specifically rejected any such
approach:
Ultimately, our decision cannot turn on whether or to what
degree trial by jury impairs the efficiency or fairness of criminal
justice. One can certainly argue that both these values would be
better served by leaving justice entirely in the hands of
professionals; many nations of the world, particularly those
following civil-law traditions, take just that course. There is not one
shred of doubt, however, about the Framers’ paradigm for criminal
justice: not the civil-law ideal of administrative perfection, but the
common-law ideal of limited state power accomplished by strict
division of authority between judge and jury. As Apprendi held,
every defendant has the right to insist that the prosecutor prove to a
20
jury all facts legally essential to the punishment. [Blakely, 542 US at
313 (emphasis in original).]
It might be easier to continue the current modus operandi: to punish
probation violators by allowing judges to increase their statutory maximum
sentence by using findings of fact not supported by the violators’ prior record or
admissions or the jury’s verdict. But the Sixth Amendment does not allow courts
to disregard defendants’ rights just because to make a correction would require the
judicial system to undergo change. Id.
The majority is also incorrect in relying on its belief that the Legislature
intended that probation violators be punished with more than 12 months in jail.
Even if the Legislature intended that punishment, it is irrelevant. This fact is made
obvious by the decision in Ring. The Arizona legislature intended that a sentence
of death should be imposed in first-degree murder cases in which aggravating
factors existed. Ring, 536 US at 592-593. But the Supreme Court found that this
intent could not be effectuated in light of the Sixth Amendment. Notwithstanding
the Arizona legislature’s intent, the judicial fact-finding that increased Ring’s
maximum sentence to the death penalty violated Blakely’s bright-line rule: “If a
State makes an increase in a defendant’s authorized punishment contingent on the
finding of a fact, that fact—no matter how the State labels it—must be found by a
jury beyond a reasonable doubt.” Id. at 602.
Moreover, the proper application of the Sixth Amendment to Michigan’s
intermediate sanction cells need not weaken an intermediate sanction cell sentence
21
of probation with jail. The system easily could be made to comply with Blakely.
For example, this Court could amend our court rules to provide for a jury to be
impaneled after a court found a probation violation. If the jury then found beyond
a reasonable doubt the facts necessary to move the defendant from an intermediate
sanction cell, there would be no Sixth Amendment violation. Therefore, Michigan
could both retain its current probation system and protect a defendant’s
constitutional rights.15
The majority contends that the imposition of an intermediate sanction cell
sentence does not affect the absolute maximum statutory sentence. It reasons that
a defendant is not entitled to an intermediate sanction cell sentence until after the
court decides that substantial and compelling reasons to depart from it do not
exist. Therefore, it reasons, there is only one statutory maximum sentence. But
the Supreme Court heard and rejected a similar argument in Ring. There the
pertinent statute directed the judge to conduct a separate sentencing hearing. The
purpose of the hearing was to enable the judge to determine the existence of
specified circumstances in order to decide which to impose, the death penalty or
life imprisonment. Ring, 536 US at 592-593. But the Supreme Court concluded
that the fact that the judge could impose a higher sentence under the sentencing
scheme is not relevant. A defendant is entitled to a sentence based solely on the
15
For a complete discussion of the appropriate remedy for the
constitutional violation occurring in these cases, please see my dissenting opinion
(continued…)
22
jury’s verdict and the defendant’s admissions and criminal history. The Supreme
Court explained:
In an effort to reconcile its capital sentencing system with the
Sixth Amendment as interpreted by Apprendi, Arizona first restates
the Apprendi majority’s portrayal of Arizona’s system: Ring was
convicted of first-degree murder, for which Arizona law specifies
“death or life imprisonment” as the only sentencing options, see
Ariz. Rev. Stat. Ann. § 13-1105(C) (West 2001); Ring was therefore
sentenced within the range of punishment authorized by the jury
verdict. See Brief for Respondent 9-19. This argument overlooks
Apprendi’s instruction that “the relevant inquiry is one not of form,
but of effect.” 530 U.S., at 494. In effect, “the required finding [of
an aggravated circumstance] expose[d] [Ring] to a greater
punishment than that authorized by the jury’s guilty verdict.” Ibid.;
see 200 Ariz., at 279, 25 P. 3d, at 1151. The Arizona first-degree
murder statute “authorizes a maximum penalty of death only in a
formal sense,” Apprendi, 530 U.S., at 541 (O’Connor, J.,
dissenting), for it explicitly cross-references the statutory provision
requiring the finding of an aggravating circumstance before
imposition of the death penalty. See [Ariz Rev Stat Ann] 13-1105(C)
(“First degree murder is a class 1 felony and is punishable by death
or life imprisonment as provided by [Ariz Rev Stat Ann] 13-703.”
(emphasis added)). If Arizona prevailed on its opening argument,
Apprendi would be reduced to a “meaningless and formalistic” rule
of statutory drafting. [Id. at 603-604.]
The Supreme Court made clear that the majority’s argument in this case
must fail. The Arizona court in Ring was imposing a statutory maximum sentence
by sentencing the defendant to a life sentence rather than the death penalty.
Similarly, a Michigan court imposes a statutory maximum sentence when
sentencing a defendant to an intermediate sanction cell sentence rather than to the
(…continued)
in People v McCuller, 475 Mich 176, 208-213; 715 NW2d 798 (2006).
23
absolute maximum sentence. Both systems set statutory maximum sentences.
And, in both situations, judicial fact-finding by the sentencing court increasing this
sentence violates the Sixth Amendment, no matter what formalistic gloss is placed
on the fact-finding.16
In summary, Michigan’s intermediate sanction cells set maximum
sentences. They can be increased only through judicial fact-finding after the
jury’s verdict. Because of this fact, intermediate sanction cell sentences equate to
the middle term of California’s DSL system. Cunningham, 127 S Ct at 868. Both
constitute a statutory maximum sentence for Apprendi purposes.
In this case, but for the trial court’s findings of fact made using a
preponderance of the evidence standard, Harper would have received an
intermediate sanction. The highest valid sentence he would have faced was 12
months in jail. MCL 769.34(4)(a). The sentence he received was four years in
16
The majority attempts to distinguish Ring by focusing on the fact that the
sentence of death in that case could be imposed only if the judge found
aggravating circumstances. Ante at 14 n 25. It concludes that this distinguishes
Arizona’s sentencing scheme from Michigan’s sentencing guidelines because, it
postulates, only one maximum sentence exists in Michigan. As I explain both
here and in McCuller, this is simply inaccurate. Just as in Ring, a defendant in
Michigan who falls in an intermediate sanction cell faces one maximum sentence
(12 months in jail) unless the court makes findings of fact that move him or her
out of that cell. Whether these findings are called an identification of aggravating
circumstances, a scoring of OVs, or a departure from the guidelines, one fact
remains the same: the trial court is engaging in activity that increases the
defendant’s sentence by making findings not supported by the jury’s verdict, the
defendant’s admissions, or the defendant’s past convictions. This violates
Blakely’s bright-line rule.
24
prison. This violated the Sixth Amendment, and the violation requires
resentencing.
E. HARMLESS ERROR
The Supreme Court concluded that Blakely errors are not structural errors
requiring automatic reversal. Washington v Recuenco, __ US __; 126 S Ct 2546,
2553; 165 L Ed 2d 466 (2006). The Court reasoned that sentencing factors were
equivalent to the elements of the crime. Both must be proved to a jury beyond a
reasonable doubt. Id. at 2552. The appropriate standard of review for this
constitutional issue is whether the omission of an element of the offense was
harmless beyond a reasonable doubt. Neder v United States, 527 US 1, 18-19;
119 S Ct 1827; 144 L Ed 2d 35 (1999).
Michigan has no process for criminal juries to make special findings of
fact. See MCR 6.420. This procedural problem is no small issue. In Recuenco,
the United States Supreme Court considered the consequences of there being no
procedure by which a jury could have made a finding. It suggested that a
defendant would be more likely to demonstrate successfully that the Blakely
violation was not harmless in such a situation. Recuenco, 126 S Ct at 2550. This
case evidences the procedural problem noted in Recuenco.
The jury convicted Recuenco of second-degree assault on the basis of its
finding that he had assaulted his wife with a deadly weapon. Id. at 2549. He
objected to the judicial finding that was made after the verdict that the deadly
25
weapon was a firearm. Id. Thus, in Recuenco, state law specifically allowed
juries to make findings of fact. And the fact used by the judge in sentencing
closely related to the fact found by the jury.
In this case, no procedure was available for the jury to make special
findings. The United States Supreme Court has not addressed the application of a
harmless error analysis to Blakely questions in such situations. But the procedural
discussion in Recuenco suggests that the prosecution could not carry its burden in
this case to prove the Blakely error harmless beyond a reasonable doubt. See id. at
2550.17 At the very least, it is not clear that the jury’s verdict would have been the
same as the trial court’s findings. Therefore, the error was not harmless. Neder,
527 US at 18-19.18
17
The majority apparently misses the point of why the Supreme Court
indicated that the lack of procedure would increase the difficulty in proving the
error harmless. Simply, if the jury has no means of making the finding, how can a
reviewing court presume that the jury would have made that finding regardless of
the prohibition against it?
18
The majority accuses me of effectively concluding that all Blakely errors
are “harmful per se.” Ante at 44 n 70. This is inaccurate. I acknowledge that the
Blakely error in Recuenco was not harmful per se. But when I apply the words of
the United States Supreme Court, it is not clear to me that Blakely errors in
Michigan may be harmless beyond a reasonable doubt. This is because, as the
Supreme Court advises, the lack of a procedure for special findings will increase
the difficulty of the prosecution’s burden to prove any error harmless beyond a
reasonable doubt. And Michigan lacks a procedure.
As I discuss at length in McCuller, 479 Mich at ___ (Kelly, J., dissenting),
the majority also misstates the law regarding the ability of a jury to make special
findings in a criminal proceeding. This Court specifically rejected such
procedures long ago in People v Marion, 29 Mich 31, 40-41 (1874). And the
(continued…)
26
Even if procedures for special jury findings existed here, the prosecution
could not prove that the failure to submit these issues to the jury was harmless
beyond a reasonable doubt.
Of course, safeguarding the jury guarantee will often require
that a reviewing court conduct a thorough examination of the record.
If, at the end of that examination, the court cannot conclude beyond
a reasonable doubt that the jury verdict would have been the same
absent the error—for example, where the defendant contested the
omitted element and raised evidence sufficient to support a contrary
finding—it should not find the error harmless. [Id. at 19.]
In this case, Harper had no opportunity to present contrary evidence. The majority
relies on the fact that he did not object to the presentence investigation report
(PSIR). But this reliance is misplaced.
“[T]he prosecution’s burden to prove every element of the crime is not
relieved by a defendant’s tactical decision not to contest an essential element of
the offense.” Estelle v McGuire, 502 US 62, 69; 112 S Ct 475; 116 L Ed 2d 385(1991). The right to trial by jury is a basic right that cannot be waived, unless the
waiver is fully informed and publicly acknowledged. Taylor v Illinois, 484 US
400, 418 n 24; 108 S Ct 646; 98 L Ed 2d 798 (1988). Harper decided not to object
at sentencing to the information in his PSIR. When he did that, he could not have
known that he was entitled to have the prosecution prove the statements contained
(…continued)
court rules do not permit our breaking with this longstanding precedent in this
case.
27
in the PSIR beyond a reasonable doubt. Had he known that, and had he known
that this Court would treat his failure to object as a waiver, he likely would have
put the prosecution to its proofs. And it is not certain that the prosecution could
have proved the information in the PSIR beyond a reasonable doubt.
In any event, the information in the PSIR does not support the judicial
findings in this case beyond a reasonable doubt. The trial court’s reasons for
departure were:
Guidelines do not include at least 3 parole revocations,
abscondings from probation, Bench warrants from various courts
and stealing from a charity that serves freezing children[.]
The PSIR only briefly mentions a bench warrant in the investigating
agent’s evaluation. Nothing in the PSIR talks of freezing children. In fact, the
prosecution has presented no evidence to this Court to support either finding on
these matters beyond a reasonable doubt. It is unknown if children were harmed
by Harper’s actions. And it is unclear what defenses Harper may have had against
the unknown bench warrants. Therefore, the prosecution has not proved beyond a
reasonable doubt that the error in this case was harmless. Neder, 527 US at 19.
Resentencing is mandated.19
19
I disagree with Justice Cavanagh’s assessment that Harper’s guilty plea
and his statement that he did not contest the PSIR constituted an admission for
Sixth Amendment analysis purposes. A waiver “consists of (1) specific
knowledge of the constitutional right and (2) an intentional decision to abandon
the protection of the constitutional right.” People v Williams, 475 Mich 245, 261;
716 NW2d 208 (2006). Courts should endulge every reasonable presumption
(continued…)
28
III. CONCLUSION
There was no need for the majority to reach the Sixth Amendment issue in
Burns. The trial court failed to articulate substantial and compelling reasons to
depart upward from the sentencing guidelines range. Burns must be resentenced
without regard to the Blakely issue. Because he was not properly sentenced under
existing law, the Sixth Amendment issue is not ripe for review.
Harper’s sentence does violate the Sixth Amendment. The trial court based
its departure sentence on facts that a jury never decided were true and that Harper
never admitted. But for those findings, Harper would have received an
intermediate sanction cell sentence, which could not have exceeded 12 months in
jail. MCL 769.34(4)(a). But his sentence was four years in prison. This violated
the Sixth Amendment, and it requires resentencing.
(…continued)
against waiver of a fundamental right. Id. at 260. This Court has set an even
higher standard for an admission:
[A] statement made by a party or his counsel, in the course of
trial, is considered a binding judicial admission if it is a distinct,
formal, solemn admission made for the express purpose of, inter
alia, dispensing with the formal proof of some fact at trial. [Ortega
v Lenderink, 382 Mich 218, 222-223; 169 NW2d 470 (1969).]
This case meets neither standard. Harper did not know that he was
addressing his Sixth Amendment rights when he reviewed the PSIR at sentencing.
And his plea did not address the facts used to depart from the sentence required by
the intermediate sanction cell. Thus, his statements could not constitute a waiver,
let alone an admission.
29
The Harper case illustrates that a grave constitutional problem arises in this
state when Blakely is correctly applied. In its effort to save the Michigan
sentencing guidelines, the majority fails to pay respect to the United States
Supreme Court’s Sixth Amendment precedent. When this precedent is properly
applied, it becomes apparent that a major restructuring of Michigan’s sentencing
guidelines is in order.
Marilyn Kelly
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