PEOPLE v DROHAN
Docket No. 127489
Supreme Court of Michigan
June 13, 2006
475 Mich 140
Argued November 8, 2005 (Calendar No. 1).
In an opinion by Justice MARKMAN, joined by Chief Justice TAYLOR and Justices CORRIGAN and YOUNG, the Supreme Court held:
Michigan‘s indeterminate sentencing scheme, which allows a trial court to use judicially ascertained facts under a preponderance of the evidence standard to set a defendant‘s minimum sentence, does not violate the Sixth Amendment.
- Under the Sixth Amendment, a trial court may not impose a sentence greater than the statutory maximum unless it does so on the basis of a prior conviction or where a fact at issue is admitted by the defendant or proven to a jury beyond a reasonable doubt.
- For Sixth Amendment purposes, the “statutory maximum”
is the maximum sentence that may be imposed solely on the basis of the defendant‘s prior convictions and those facts proven beyond a reasonable doubt. - Michigan‘s indeterminate sentencing scheme provides that the maximum sentence that a court may impose on the basis of the jury‘s verdict is the statutory maximum sentence; as long as the defendant receives a sentence that does not exceed the statutory maximum sentence, a trial court may consider facts and circumstances not proven beyond a reasonable doubt in imposing a sentence within the statutory range. The sentence appealed from in this matter did not violate these principles. Accordingly, the judgment of the Court of Appeals must be affirmed.
Justice WEAVER, concurring, agreed with the result of the majority‘s opinion because Blakely does not affect Michigan‘s sentencing guidelines scoring system, which establishes only the recommended minimum sentence.
Justice CAVANAGH concurred in the result only.
Justice KELLY, concurring in part and dissenting in part, agreed that the defendant‘s sentence does not offend the Sixth Amendment. The defendant‘s sentence could not fall within an intermediate sanction cell under the sentencing guidelines. Therefore, no issue arises under Blakely because the judicial fact-finding that changed his recommended minimum sentence was not used to change his maximum sentence. She disagreed, however, with the majority‘s implication that the statutory maximum sentence under the sentencing guidelines will always be the maximum sentence allowed by statute. If a defendant‘s prior record variable level places him or her in an intermediate sanction cell, the intermediate sanction is the statutory maximum for Blakely purposes. Judicial fact-finding used to score the offense variables or depart from the intermediate sanction unconstitutionally changes that defendant‘s statutory maximum in violation of Blakely. The sentencing guidelines are thus no longer constitutionally sound, and severance is not possible, although the problem might be resolved with bifurcated hearings and jury determination of the facts necessary to score the offense variables. Justice KELLY also disagreed with the majority‘s implication that the dicta discussion of Blakely in Claypool has precedential value.
Affirmed.
1. SENTENCES — STATUTORY MAXIMUMS — SIXTH AMENDMENT.
Under the Sixth Amendment, a trial court may not impose a sentence greater than the statutory maximum unless it does so on
2. SENTENCES — STATUTORY MAXIMUMS — SIXTH AMENDMENT.
For Sixth Amendment purposes, the “statutory maximum” is the maximum sentence that may be imposed solely on the basis of the defendant‘s prior convictions and those facts proven beyond a reasonable doubt (
3. SENTENCES — INDETERMINATE SENTENCES.
Michigan‘s indeterminate sentencing scheme provides that the maximum sentence that a court may impose on the basis of the jury‘s verdict is the statutory maximum sentence; as long аs the defendant receives a sentence that does not exceed the statutory maximum sentence, a trial court may consider facts and circumstances not proven beyond a reasonable doubt in imposing a sentence within the statutory range.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.
Michael J. McCarthy, P.C. (by Michael J. McCarthy), for the defendant.
Amici Curiae:
Miller, Canfield, Paddock and Stone, P.L.C. (by Hideaki Sano), and Kimberly Thomas, for Criminal Defense Attorneys of Michigan.
Stuart J. Dunnings, III, Kym L. Worthy, and Timothy A. Baughman, for Prosecuting Attorneys Association of Michigan.
MARKMAN, J. We granted leave to appeal to consider whether Michigan‘s indeterminate sentencing scheme, which allows a trial court to set a defendant‘s minimum sentence on the basis of factors determined by a pre-
The victim in this case and defendant were coworkers. She testified that defendant sexually assaulted her on four separate occasions between July 17, 2002, and October 25, 2002. The first incident took place on July 17, when defendant asked the victim to assist him with his computer at his cubicle. While there, defendant grabbed her hand and placed it on his clothed penis. In addition, defendant rubbed her clothed breast. The second incident occurred on July 19 at about 2:00 p.m. At that time, defendant entered the victim‘s cubicle, again grabbed her hand and placed it over his penis, and made a sexual comment. The third incident occurred at around 4:00 p.m. on that same day. The victim testified that defendant accosted her in the parking garage and fоrced her into his car. Defendant demanded oral sex, and, when she refused, he grabbed the back of her head and forced her to perform oral sex until he ejaculated. The final incident took place on October 25 while the company was moving its office to a new location. As the victim moved things out of her cubicle, defendant entered, grabbed her hand and placed it over his penis, and made a sexual comment. The victim did not report any of these incidents until after defendant left the company. Defendant was prosecuted for one count of third-degree criminal sexual conduct and two counts of fourth-degree criminal sexual conduct. The jury convicted defendant of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. Following the verdict, defendant pleaded guilty of being a third-offense habitual offender,
Because defendant here was not subject to an intermediate sanction, we decline to address whether and to what extent Blakely affects the intermediate sentencing scheme.
Defendant appealed, asserting that his minimum sentence violated the United States Supreme Court‘s decision in Blakely because it was based on judicially ascertained facts that had not been determined by the jury beyond a reasonable doubt. Pursuant to Claypool, the Court of Appeals affirmed defendant‘s convictions and sentence, observing that Blakely does not apply to Michigan‘s sentencing scheme. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004).5 This Court granted defendant‘s application for leave to appeal,
II. STANDARD OF REVIEW
The issue in this case concerns whether Michigan‘s sentencing scheme violates the Sixth Amendment of the United States Constitution because it permits a defendant‘s minimum sentence to be determined on the basis of facts not proven to the jury beyond a reasonable doubt. A Sixth Amendment challenge presents a question of constitutional law that we review de novo. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).
III. ANALYSIS
A. UNITED STATES SUPREME COURT
The Sixth Amendment of the United States Constitution states:
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....
The United States Supreme Court first addressed the Sixth Amendment implications of the enhancement of a defendant‘s sentence based on judicially ascertained facts in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986). In McMillan, a Pennsylvania statute imposed a five-year mandatory minimum sentence if the trial court concluded, by a preponder-
neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. [Id. at 87-88.]
While McMillan sanctioned the use of judicially ascertained facts to establish a minimum sentence, the United States Supreme Court, in Jones v United States, 526 US 227, 239; 119 S Ct 1215; 143 L Ed 2d 311 (1999), stated that the use of such facts to increase the maximum sentence posed ” ‘grave and doubtful constitutional questions....’ ” (Citation omitted.) In Jones, the defendant was convicted of violating the federal carjacking statute. The statute called for a 15-year maximum, but also provided for a 25-year maximum where the victim suffered serious bodily injury, and a potential life term where the victim was killed.
under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Gov-
ernment‘s reading of the [carjacking] statute rises only to the level of doubt, not certainty. [Jones, supra at 243 n 6.]
As a result of these concerns, the Court held that the statute established three separate offenses and, therefore, reversed the defendant‘s conviction.
The following year, in Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court acted on the concerns it had expressed in Jones. In Apprendi, the defendant was sentenced to an additional two years above the statutory maximum, on the basis of the trial court‘s determination by a preponderance of the evidence that the defendant had acted with an intent to intimidate an individual based on that individual‘s race. The Court undertook its analysis by noting that the Fourteenth Amendment “due process” clause and the Sixth Amendment “right to jury trial,” considered together, “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477, quoting United States v Gaudin, 515 US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995). At the time of the American Revolution, a trial court had very little discretion in sentencing. Apprendi, supra at 479. Rather, there was generally a specific sanction for each criminal offense—a sanction determined by a jury‘s verdict. Id. The Court explained that, during this period, where a statute created a highеr degree of punishment than the common law, the prosecutor
“must expressly charge it to have been committed under those circumstances [established in the statute], and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170].” Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, “upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have
been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only.” Id. at 488. [Apprendi, supra at 480-481.]
The 19th century shift away from fixed sentences gave trial courts increasingly broad discretion in sentencing. However, such discretion was limited by ” ‘fixed statutory or constitutional limits.’ ” Id. at 482, quoting Williams v New York, 337 US 241, 247; 69 S Ct 1079; 93 L Ed 1337 (1949). Thus, just as in revolutionary times, a defendant‘s maximum sentence was fixed by the maximum sentence permitted at the time of the jury‘s verdict. In contrast, the New Jersey statute permitted a trial court to sentence a defendant beyond the maximum fixed by the statute that served as the basis for the jury‘s conviction. The Court stated:
If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not—at the moment the State is put to proof of those circumstances—be deprived of protections that have, until that point, unquestionably attached. [Apprendi, supra at 484.]
Accordingly, the Court held that under the Sixth Amendment, “[o]ther than the fact of 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.” Id. at 490. Thus, any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury‘s guilty verdict[,]” id. at 494, is an element of the crime that must be proven beyond a reasonable doubt. Conversely, a fact “that supports a specific sentence within the range authorized by the jury‘s finding that the defendant is guilty of a particular
The United States Supreme Court reinforced this decision two years later, in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002). In Harris, the defendant pleaded guilty of distribution of marijuana. At sentencing, the trial court dеtermined by a preponderance of the evidence that the defendant had brandished a firearm during the drug transaction and, as a result, imposed a seven-year minimum, as required under
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 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. [Harris, supra at 567.]9
The United States Supreme Court clarified the importance of the term “statutory maximum” within the
[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. . . . In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. [Blakely, supra at 303-304 (emphasis in the original).]
The defendant‘s prior convictions and the facts elicited from his guilty plea, by themselves, could not have supported the imposition of the 90-month sentence. Id. at 304. Therefore, “the State‘s sentencing procedure did not comply with the Sixth Amendment, [and the defendant‘s] sentence is invalid.” Id. at 305. However, the Sixth Amendment does not prohibit all judicial fact-finding. In addressing indeterminate sentencing schemes,10 the Court stated:
[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 еssential 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—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury. [Id. at 308-309 (emphasis in the original).]
Last year, the United States Supreme Court applied the Sixth Amendment to the federal sentencing guidelines in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). In Booker, the defendant was convicted of possession with intent to distribute at
other words, while a defendant may serve a sentence of up to 20 years, the defendant may be released from prison at the discretion of the parole board at аny time after the defendant serves the ten-year minimum. In contrast, a determinate sentence is “[a] sentence for a fixed length of time rather than for an unspecified duration.” Id. Such a sentence can either be for a fixed term from which a trial court may not deviate, see, e.g.,
just as in Blakely, “the jury‘s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases. [Id., quoting Blakely, supra at 305 (citation omitted).]
Therefore, the Court “reaffirm[ed] [its] holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. [Id. at 750.]11
The constitutional rule of Apprendi, Blakely, and Booker can be summarized as follows: (1) a trial court may not impose a sentence greater than the statutory maximum unless it does so on the basis of a prior conviction or the fact at issue is “admitted by the defendant or proved to a jury beyond a reasonable doubt[,]” Booker, supra at 756; (2) where a defendant‘s maximum sentence is calculated through the use of mandatory sentencing guidelines, the statutory maximum is the maximum sentence that may be imposed under those guidelines, based solely on the defendant‘s prior convictions and those fаcts proven beyond a reasonable doubt, Blakely, supra at 303-304; and (3) a trial court may consider facts and circumstances not proven beyond a reasonable doubt in imposing a sentence within the statutory range, McMillan, supra; Harris, supra; Booker, supra.
State courts, consistently with Apprendi, Blakely, and Booker, have held that the Sixth Amendment bars the use of judicially ascertained facts to increase a defendant‘s sentence only when that sentence is increased beyond the “statutory maximum.” For example, the New Jersey Supreme Court recognized in State v Abdullah, 184 NJ 497; 878 A2d 746 (2005), that the applicability of Blakely hinges on the question whether the trial court uses judicially ascertained facts to impose a sentence above the statutory maximum. In Abdullah, the defendant was convicted of murder and two counts of second-degree burglary. The defendant was sentenced to life imprisonment with a 30-year parole disqualifier on the murder conviction and to a consecutive ten-year prison term with a five-year parole disqualifier on the burglary convictions. Under New Jersey law, a defendant convicted of burglary is entitled to a presumptive sentence of seven years. Id. at 503. Because the defendant was entitled to no more than the seven-year sentence for burglary on the basis of the jury‘s vеrdict alone, imposition of the ten-year sentence on the basis of judicially ascertained facts was ” ‘incompatible with the holdings in [Apprendi, Blakely, and Booker].’ ” Id. at 505 (citation omitted). On the other hand, the court noted that there is no presumptive term for murder. Id. at 504. ” ‘[B]ecause the crime of murder has no presumptive term, defendant, like every murderer, knows he is risking life in prison.’ ” Id. at 508 (citation omitted). Thus, the upper sentencing limit based on the jury‘s verdict alone was life imprisonment. Accordingly, the murder sentence was not in derogation of the Sixth Amendment. See also State v Stover, 140 Idaho 927, 931; 104 P3d 969 (2005) (stating that “[t]he Blakely Court recognized that an indeterminate sen-
The courts in Pennsylvania, a state with a sentencing scheme bearing a strong resemblance to Michigan‘s, have also held that the use of judicially ascertained facts to increase a defendant‘s minimum sentence is permitted by the Sixth Amendment. The Pennsylvania Superior Court addressed the implications of Blakely on its sentencing scheme in Commonwealth v Smith, 863 A2d 1172 (Pa Super, 2004). In Smith, the defendant claimed that Pennsylvania‘s sentencing scheme violated Blakely, because it allowed a trial court to use judicially ascertained facts to increase the defendant‘s minimum sentence. The court rejected this claim, noting that
Pennsylvania utilizes an indeterminate sentencing scheme with presumptive sentencing guidelines which limit the judge‘s discretion only concerning the minimum sentence.
42 Pa. C.S.A. § 9721 ; 204 Pa. Code § 303.9(h). The United States Supreme Court has previously determined that this system does not violate the Sixth Amendment so long as the enhanced minimum sentence is not beyond that authorized by the jury verdict. [Harris, supra]. Because of the link with the maximum sentence, enhanced minimum sentences, when enhanced by factors in the guidelines, are not beyond sentences authorized by the jury verdict. [McMillan, supra]. Blakely is only implicated in Pennsylvania to the extent that an enhanced minimum term leads to a
longer period of incarceration by extending the date at which the defendant is eligible to be released. Yet, because there is no limit, other than the statutory maximum, on the maximum term a judge may set, and due to the discretion vested in the parole board, the Pennsylvania sentencing scheme and guidelines evade even these Blakely concerns. The Blakely Court, itself, noted that indeterminate guidelines do not increase judicial discretion “at the expense of the jury‘s function of finding the facts essential to a lawful imposition of penalty,” and judicial (or parole board) fact-finding does not infringe on a defendant‘s “legal right to a lesser sentence.” Blakely [supra at 309].
Here, the trial court did not employ an enhancement provision based on a judicially determined fact, but instead, imposed its sentence pursuant to the discretion provided it under the sentencing code and the sentencing guidelines. The sentence was proper under the code and the guidelines, and the guidelines, themselves, are constitutional under Blakely. [Smith, supra at 1178-1179.]
C. MICHIGAN‘S SENTENCING SCHEME
This Court likewise has noted that the Sixth Amendment bars the use of judicially ascertained facts to increase a defendant‘s maximum sentence beyond that authorized by the jury‘s verdict. Claypool, supra at 730 n 14. However, a defendant does not have a right to anything less than the maximum sentence authorized by the jury‘s verdict, and, therefore, judges may make certain factual findings to select a specific minimum sentence from within a defined range. Blakely, supra at 308-309. In Claypool, supra at 730 n 14, this Court noted that Blakely does not affect Michigan‘s sentencing scheme. We explained:
Blakely concerned the Washington state determinate sentencing system, which allowed a trial judge to elevate the maximum sentence permitted by law on the basis of facts not found by the jury but by the judge. Thus, the trial
Michigan, in contrast, has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law.
Having concluded that Blakely applies only to bar the use of judicially ascertained facts to impose a sentence beyond that permitted by the jury‘s verdict, we must next determine what constitutes the “statutory maximum” under Michigan‘s sentencing scheme.
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.
Defendant asserts that the “maximum-minimum” under the guidelines constitutes the “statutory maximum” for Blakely purposes because a trial court is required to depart on the basis of a finding of aggravating factors that, as a practical matter, will subject the defendant to an increase in the actual time the defendant will be required to serve in prison. However, defendant‘s interpretation is inconsistent with the nature of the protection afforded by the Sixth Amendment. At common law, a jury‘s verdict entitled a defendant to a determinate sentence. Apprendi, supra. During the 19th century, American courts began moving away from such sentencing by according trial courts the discretion to determine a defendant‘s sentence. However, this new discretion was limited by fixed statutory or constitutional limits. Id. In other words, while a trial court could impose a sentence less than the maximum authorized by the jury‘s verdict, the court
When defendant, a third-offense habitual offender, committed third-degree criminal sexual conduct, he did so knowing that he was risking 30 years in prison. When defendant was, in fact, sentenced to a maximum of 30 years in prison, he received all the protections he was entitled to under the Sixth Amendment. Therefore, the trial court‘s exercise of discretion in imposing a sentence greater than the “maximum-minimum,” but within the range authorized by the verdict, fully complies with the Sixth Amendment.
Finally, but not insignificantly, there is no guarantee that an incarcerated person will be released from prison after the person has completed his or her minimum sentence. Ultimately, the parole board retains the discretion to keep a person incarcerated up to the maximum sentence authorized by the jury‘s verdict. Accordingly, because a Michigan defendant is always subject to serving the maximum sentence provided for in the statute that he or she was found to have violated, that maximum sentence constitutes the “statutory maxi-
IV. CONCLUSION
We conclude that, under the Sixth Amendment, “[o]ther than the fact of 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.” Apprendi, supra at 490. The statutory maximum constitutes “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury‘s verdict or admitted by the defendant.” Blakely, supra at 303 (emphasis omitted). Under Michigan‘s sentencing scheme, the maximum sentence that a trial court may impose on the basis of the jury‘s verdict is the statutory maximum.
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
WEAVER, J. (concurring). I concur in the result of the majority opinion. As this Court recognized in People v Claypool, 470 Mich 715; 684 NW2d 278 (2004), the United States Supreme Court‘s decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), which considered whether facts that increase the penalty for a crime beyond the prescribed statutory maximum sentence must be submitted to the jury, does not affect Michigan‘s scoring system, which establishes the recommended minimum sentence.
CAVANAGH, J., concurred in the result only.
KELLY, J. (concurring in part and dissenting in part). My opinion in this case parallels my dissenting opinion in People v McCuller, 475 Mich 176; 715 NW2d 798 (2006). Because McCuller offers a better opportunity to explore the ramifications of Blakely v Washington1 and associated United States Supreme Court cases, my opinion in that case more fully explores the pertinent issues.
I concur in the majority‘s decision that Joseph Drohan‘s sentence does not offend the Sixth Amendment.
DEFENDANT‘S SENTENCING
A jury convicted defendant of third-degree criminal sexual conduct3 (CSC III) and fourth-degree criminal sexual conduct4 (CSC IV). Defendant pleaded guilty of being a third-offense habitual offender.
When it sentenced defendant, the court calculated his prior record variable (PRV) level at 20 points. With respect to the offense variables (OVs), it scored ten points for OV 4,5 15 points for OV 10,6 five points for OV 12,7 and 25 points for OV 13.8 Defendant objected at sentencing to the scores attributed to OVs 4 and 10, but the court rejected his arguments. His OV level was set аt 55 points. In the class B sentencing grid, a PRV level of 20 points and an OV level of 55 points placed defendant in cell C-V.
Defendant‘s sentences were rendered before the United States Supreme Court issued its decision in Blakely. But after that date, defendant raised the Blakely issue in a supplemental brief on appeal. The Court of Appeals did not directly analyze the issue, stating merely that it disagreed with defendant‘s contentions. It relied on dicta contained in our Claypool opinion, treating it as binding precedent. But the Court of Appeals did request this Court to indicate whether it should be bound by the Claypool dicta. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750 (2004). We granted oral argument on the matter, limited to what effect, if any, the Blakely opinion has on Michigan‘s statutory sentencing guidelines. 472 Mich 881 (2005).
DEFENDANT‘S SENTENCE DOES NOT INVOLVE AN INTERMEDIATE SANCTION CELL
In his appeal in this Court, defendant claims that the trial court incorrectly scored OVs 4, 10, and 12. But it is apparent that, however these OVs were scored, defendant‘s sentence would not have fallen within an intermediate sanction cell. With his PRV level of 20 points and an OV level of 25 points,9 defendant would have fallen into cell C-III, which, for a third-offense habitual offender, provides a range of 36 to 90 months.
The significance of the fact that defendant‘s sentence could not fall within an intermediate sanction cell is that the problem that arose in McCuller cannot occur here. The reason is that the guidelines dictate defendant‘s minimum sentence only. The judicial findings of fact used to score the challenged OVs did not change defendant‘s maximum sentence. As a consequence, no Blakely issue arises.
THE UNITED STATES SUPREME COURT‘S PRECEDENT REGARDING THE “STATUTORY MAXIMUM”11
In McMillan v Pennsylvania, 477 US 79, 86-88; 106 S Ct 2411; 91 L Ed 2d 67 (1986), the Supreme Court addressed the constitutionality of Pennsylvania‘s mandatory minimum sentencing act, 42 Pa Cons Stat 9712 (1982). It found that the act did not change the proseсution‘s burden of proving guilt beyond a reasonable doubt. Id. at 87-88. It was careful to point out, however, that there are constitutional limits on how far a state may go in defining away the facts necessary to prove a criminal offense. Specifically, the Court relied on the fact that the Pennsylvania act did not increase the maximum penalty faced by a defendant. Id.
The Supreme Court expanded on this point in five subsequent cases: Jones v United States, 526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999); Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000); Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002); Blakely, and United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). I refer to these cases as “the Blakely cases.” The Blakely cases focused primarily on the “statutory maximum.” Blakely and Booker made clear that this phrase did not refer to the absolute maximum sentence provided by statute. Instead, the Supreme Court defined the “statutory maximum” as the maximum sentence that can be imposed without any judicial fact-finding:
Our precedents make clear, however, that the “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. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority. [Blakely v Washington, 542 US 296, 303-304; 124 S Ct 2531; 159 L Ed 2d 403 (2004) (emphasis in original; citations omitted).]
Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. [United States v Booker, 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d 621 (2005).]
THE DIFFERENCE BETWEEN INTERMEDIATE SANCTION CELLS AND NONINTERMEDIATE SANCTION CELLS
When a defendant is entitled to a sentence falling within an intermediate sanction cell, Michigan‘s sentencing guidelines establish the maximum sentence that the defendant may face.
In cases involving nonintermediate sanction cells, such as Joseph Drohan‘s case, the sentencing guidelines set the minimum sentence. If the judge engages in judicial fact-finding to increase the minimum sentence, the defendant‘s maximum sentence will not be increased. Instead, the “statutory maximum” for Blakely purposes is the maximum sentence set by the criminal
In cases like Drohan‘s, judicial fact-finding moves the minimum sentence within the preexisting range rather than increasing the potential maximum sentence. As the Supreme Court noted, this does not violate constitutional rights because “it operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it without the special finding[s.]” McMillan, 477 US 88.
Drohan‘s case serves to demonstrate this point of law. Drohan‘s criminal history, scored through the PRVs, did not рlace his sentence in an intermediate sanction cell. Hence, his “statutory maximum” was never an intermediate sanction. Instead, his maximum sentence was the maximum penalty allowed by law, 30 years. The judicial fact-finding necessary to score OVs 4, 10, and 12 did not and could not change his maximum sentence. Therefore, defendant always knew his potential maximum sentence; it was the maximum penalty prescribed by law. Just as in McMillan, adjustments to the minimum sentence create no constitutional problems. Id. at 86-88.
Because Drohan‘s sentence does not raise a Sixth Amendment issue, it is constitutionally unobjectionable. Therefore, I concur in the decision to affirm it.
THE INTERMEDIATE SANCTION CELL PROBLEM AND SOLUTION
As shown above, and as I discussed in McCuller, the existence of intermediate sanction cells in Michigan‘s
I must reiterate my belief, as set forth in McCuller, that the offending sections cannot be severed. Nearly every class of felony involves intermediate sanction cells. In fact, only class A and M2 felonies do not. See
At the start of any jury trial, the participants will be uncertain which sentencing method will be appropriate if the defendant is convicted. They will not know whether judicial fact-finding will be required or permitted. And the prosecution will be uncertain of the entirety of the facts it must prove to the jury.
Moreover, the offending sections of the sentencing guidelines will be difficult to spot. For one defendant convicted of a crime, it would be appropriate to score the OVs. For another convicted of the same crime, it would be impermissible to score the OVs because that defendant‘s PRV level places him or her in an intermediate sanction cell. Such entanglement shows that severance is simply not feasiblе. Blank v Dep‘t of Corrections, 462 Mich 103, 123; 611 NW2d 530 (2000) (opinion by KELLY, J.).
However, alternative solutions should be explored. For example, we could replace all judicial fact-finding with jury determinations. The prosecution could include in its charges the specific facts needed to score relevant OVs. Then, in a bifurcated hearing, the prosecution could present evidence regarding each of them. The jury could deliberate and make specific findings. It could indicate which facts the prosecution had proved beyond a reasonable doubt. Because it would be the jury making the determinations, there would be no constitutional impediment to an OV score moving a defendant‘s sentence out of an intermediate sanction cell. See McCuller, 475 Mich 176.
This solution would ensure that the Legislature‘s intent in enacting the guidelines would be fulfilled. At the same time, it would allow defendants full Sixth Amendment protection by putting the prosecution to its proofs. Such a system would be compatible with the Blakely cases.
CLAYPOOL HAS NO PRECEDENTIAL VALUE
The Court of Appeals specifically asked us to address whether Claypool‘s discussion of Blakely carries any
Black‘s Law Dictionary (7th ed) defines “obiter dictum” as: “A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential. . . .” The reference to Blakely in Claypool was completely unnecessary to that decision. Blakely had nothing to do with the issue presented in Claypool, which the Court framed as
whether it is permissible for Michigan trial judges, sentencing under the legislative sentencing guidelines pursuant to
MCL 769.34 , to consider, for the purpose of a downward departure from the guidelines range, police conduct that is described as sentencing manipulation, sentencing entrapment, or sentencing escalation. [People v Claypool, 470 Mich 715, 718; 684 NW2d 278 (2004).]
In fact, the majority opinion in Claypool notes the irrelevance of Blakely to the discussion: “The Chief Justice argues that thе United States Supreme Court‘s recent decision in Blakely v Washington, 542 US [296]; 124 S Ct 2531; 159 L Ed 2d 403 (2004), affects this case. We disagree.” Id. at 730 n 14.
As I noted at the time, Blakely was neither raised nor addressed by the parties. It was not germane to the discussion. Id. at 748 (KELLY, J. concurring in part and dissenting in part). Given this irrelevance, the discussion clearly falls under the dictionary definition of “dicta.” Such dicta lack the force of an adjudication and are not binding under the principles of stare decisis. People v Borchard-Ruhland, 460 Mich 278, 286 n 4; 597 NW2d 1 (1999). It is erroneous for the majority to indicate that the Blakely discussion in Claypool has any precedential weight.
I concur in the majority‘s decision that defendant‘s sentence does not offend the Sixth Amendment. But I believe that the Michigan sentencing guidelines do contain a constitutional flaw, which emerges whenever OV scores determined by judicial fact-finding remove a defendant from an intermediate sanction cell. Hence, for the reasons stated in my dissenting opinion in McCuller17 I would find Michigan‘s sentencing guidelines no longer constitutionally sound. Also, the majority‘s attempt to treat Claypool‘s discussion of Blakely as precedentially binding is incorrect. Claypool‘s analysis of Blakely was simply dicta.
I would affirm defendant‘s sentence.
Notes
542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).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 lеss, 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.
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Even if OVs 4, 10, and 12 had been scored at zero, defendant would have had an OV level of 25 because he conceded the scoring of OV 13.I continue to believe that the Sixth Amendment permits judges to apply sentencing factors—whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). And because I believe that extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences, I cannot yet accept its rule. I therefore join the Court‘s judgment, and I join its opinion to the extent that it holds that Apprendi does not apply to mandatory minimums. [Id. at 569-570 (Breyer, J., concurring in part and concurring in the judgment).]
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.