Lead Opinion
Defendant appeals as of right his sentence of 8 to 15 years’ imprisonment for his jury-based conviction of involuntary manslaughter, MCL 750.321. We affirm defendant’s sentence, but remand the case to the trial court for the ministerial task of correcting the presentence investigation report (PSIR).
Defendant first argues that the trial court abused its discretion by imposing a 10-month upward departure from the sentencing guidelines. Defendant maintains that the guidelines adequately accounted for his conduct and that the trial court failed to articulate a substantial and compelling reason for the departure. We review for abuse of discretion the trial court’s conclusion that there was a substantial and compelling reason to depart from the guidelines. People v Hardy,
Defendant’s 8-year minimum term of imprisonment is an upward departure from the recommended sentencing guidelines range of 43 to 86 months. The trial court articulated the following reasons for the departure: (1) that defendant had violated court orders regarding contact with the victim, (2) that the sentenсing guidelines did not reflect the extent of defendant’s prior altercations with the victim, (3) that defendant killed the victim in the presence of their children, and then left the residence while the children attempted to revive the victim, and (4) that during and after the offense, defendant showed no concern for the physical or emotional well-being of the children.
This Court has previously concluded that the psychological injury suffered by the victim’s family members, the demonstration of escalating violence toward the victim, and the existence of a probation violation constitute objective and verifiable reasons to depart from the guidelines. See, e.g., People v Corrin,
Defendant argues that his conduct has been adequately accounted for by the sentencing guidelines. In departing from the sentencing guidelines, a trial court may “not base a departure on an offеnse 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) (emphasis added). While prior record and offense variables may account for defendant’s past criminal record and the psychological injury to the victim’s family, given the unique circumstances at hand, the escalation of the domestic-violence conduct toward the victim, the fact that the crime occurred in plain view of the children, and that defendant left his children alone with the trauma of attempting to revive their mother, the trial court did not err by finding that the prior record and offense variables inadequately accounted for defendant’s conduct.
Defendant also argues that the trial court based its departure on improper factors, i.e., defendant’s gender and a belief that defendant was guilty of the greatеr offense of second-degree murder. A trial court may not base a departure on a defendant’s gender or make an independent finding regarding whether a defendant is guilty of another offense and justify the departure on that basis. MCL 769.34(3)(a); People v Glover,
In a supplemental brief, defendant argues that the trial court engaged in judicial fact-finding, which, according to defendant, violated the new rule in Alleyne v United States, 570 US_;
At sentencing, defendant challenged the accuracy of the information in the PSIR, аnd the trial court agreed to make four corrections to the report. The PSIR has been amended and all but one of the changes has been made. Specifically, the PSIR still contains the following sentence: “[K.L.] told the police that her father was choking her mother in the master bedroom upstairs.” Therefore, this Court remands for the ministerial task of making the correction to the PSIR and orders the trial court to transmit a corrected copy of the report to the Department of Corrections. See People v Martinez (After Remand),
Concurrence Opinion
(concurring). I concur with the result reached by my colleagues that defendant is not entitled to resentencing. I am required to reach this conclusion, in part, by this Court’s recent decision in People v Herron,
I write separately because I disagree with this Court’s holding in Herron. In Alleyne, 570 US at_;
I. APPRENDI v NEW JERSEY AND ITS PROGENY
A. APPRENDI
In Apprendi v New Jersey,
The United States Supreme Court held that New Jersey’s practice of enhancing a defendant’s sentence on the basis of judicial fact-finding under the hate-crime statute was unconstitutional. Id. at 491-492, 497. The Court explained that except for the fact of a prior conviction, it “ ‘is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ ” Id. at 490, quoting Jones v United States,
B. HARRIS
In Harris v United States,
“[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
“(in) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” [Harris,536 US at 550-551 , quoting 18 USC 924(c)(l)(A)(i) to (iii).]
Although the indictment did not mention brandishing or Subpart (ii), the trial court at the defendant’s sentencing hearing found by a preponderance of the evi
The Supreme Court upheld the defendant’s sentence, concluding as follows: “[A]s a matter of statutory interpretation, § 924(c)(1)(A) defines a single offense. The statute regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury.” Id. at 556. In upholding the defendant’s sentence, the Court reaffirmed its prior decision in McMillan v Pennsylvania, 477 US 79;
C. BLAKELY
In Blakely v Washington,
The Supreme Court held that the state of Washington’s sentencing procedure violated the Sixth Amendment and that the defendant’s sentence was invalid. Id. at 305. The Court rejected the state’s argument that there was no Apprendi violation because the statutory maximum was 10 years for class B felonies, explaining 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.” Id. at 303. The Court emphasized that the trial court did not have the authority to impose the exceptional 90-month sentence because a finding of deliberate cruelty was neither made by a jury nor admitted by the defendant. See id. at 304. The law only allowed a maximum sentence of 53 months’ imprisonment for the crime to which the defendant confessed. See id. at 303, 313.
D. BOOKER
In Booker,
The Supreme Court affirmed and remanded the case, instructing the trial court to impose a sentence in accordance with its opinion. Id. at 267. The Court reaffirmed its holding in Apprendi that “[a]ny 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.” Id. at 244. The
The jury convicted him of possessing at least 50 grams of crack in violation of 21 U.S.C. §841(b)(l)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag. Under these facts, the Guidelines specified an offense level of 32, which, given the defendant’s criminal history category, authorized a sentence of 210-to-262 months. See USSG §2D1.1(c)(4). Booker’s is a run-of-the-mill drug case, and does not present any factors that were inadequately considered by the Commission. The sentencing judge would therefore have been reversed had he not imposed a sentence within the level 32 Guidelines range.
Booker’s actual sentence, however, was 360 months, almost 10 years longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury: namely, that Booker possessed 566 grams of crack in addition to the 92.5 grams in his duffel bag. The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just*293 as in Blakely, the jury’s verdict alone does not authorize the sentence. [Id. at 235 (quotation marks and citation omitted).]
The Court opined that if the federal sentencing guidelines could be read as advisory provisions recommending, rather than requiring, the selection of a particular sentence in response to a set of particular facts, use of the guidelines would not implicate the Sixth Amendment. Id. at 233. In such a case, a sentencing court would be exercising discretion to impose a sentence within a statutory range. See id. “[W]hen 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. The Supreme Court explained that the availability of a departure from the guidelines range did not foreclose an Apprendi violation:
The availability of a deрarture in specified circumstances does not avoid the constitutional issue, just as it did not in Blakely itself. The Guidelines permit departures from the prescribed sentencing range in cases in which the judge “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. Were this the case, there would be no Apprendi problem. Importantly, however, departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. [Jci. at 234 (citation omitted).]
E. ALLEYNE
In Alleyne,
The Supreme Court held that imposing a sentence on the basis of the court’s finding of brandishing violated the defendant’s Sixth Amendment rights. Id. at_;
It is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed.... And because the legally prescribed range is the penalty affixеd to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.
It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty ... A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.
Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment.*296 Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish....
In adopting a contrary conclusion, Harris relied on the fact that the 7-year minimum sentence could have been imposed with or without a judicial finding of brandishing, because the jury’s finding already authorized a sentence of five years tо life. The dissent repeats this argument today. While undoubtedly true, this fact is beside the point.
As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. [Id. at _;133 S Ct at 2160-2162 (quotation marks and citations omitted).]
The Court took care to distinguish judicial fact-finding that “both alters the legally prescribed range and does so in a way that aggravates the penalty” from “factfinding used to guide judicial discretion in selecting a punishment ‘within limits fixed by law.’ ” Id. at _n 2;
Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U. S. [817, 828-829;130 S Ct 2683 ;177 L Ed 2d 271 *297 (2010)] (“[W]ithin established limits!,] • . . the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-fonnd facts” (emphasis deleted and internal quotation marks omitted)); Apprendi,530 U. S., at 481 (“[N]othing in this history suggests that it is impermissible for judges to exercise discrеtion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute”). . . . “[Establishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.” Apprendi, [530 US] at 519 (THOMAS, J., concurring). Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law. [Alleyne, 570 US at_;133 S Ct at 2163 (alterations in original except those related to citations).]
Applying these principles to the case before it, the Court concluded that the defendant’s Sixth Amendment rights had been violated. Id. at_;
II. MICHIGAN’S SENTENCING SCHEME
“Michigan has an indeterminate sentencing scheme.” People v McCuller,
A court may depart from the appropriate guidelines minimum sentence range if it has “a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3). A court is prohibited from departing on the basis of “an offense characteristic or offеnder 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). “[T]he Legislature intended ‘substantial and compelling reasons’ to exist only in exceptional cases.” People v Fields,
In several cases decided before the United States Supreme Court’s decision in Alleyne, the Michigan Supreme Court addressed the effect of Apprendi and its progeny on Michigan’s indeterminate sentencing system. First in Claypool, the Court stated in a footnote that the holding in Blakely does not affect Michigan’s indeterminate sentencing system. Claypool,
Later, in Drohan, the Court reaffirmed its statement in Claypool that “ ‘the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.’ ” Drohan,
the maximum sentence that a trial court may impose on the basis of the jury’s verdict is the statutory maximum. ... As long as the defendant receives a sentence within that statutory maximum, a trial court may utilize judicially ascertained facts to fashion a sentence within the range authorized by the jury’s verdict. [Id. at 164.]
Finally in McCuller and Harper, the Court reaffirmed its holding in Drohan that Michigan’s indeterminate sentencing scheme is valid under Blakely. Mc-Culler,
[u]pon conviction, a defendant is legally entitled only to the statutory maximum sentence for the crime involved. A defendant has no legal right to expect any lesser maximum*301 sentence. ... Thus, a sentencing court does not violate Blakely principles by engaging in judicial fact-finding to score the [оffense variables] to calculate the recommended minimum sentence range .... The sentencing court’s factual findings do not elevate the defendant’s maximum sentence, but merely determine the defendant’s recommended minimum sentence range.... [McCuller,479 Mich at 689-690 .]
Additionally, the Supreme Court held that an intermediate sanction
These decisions of our Supreme Court addressing the effect of Apprendi and its progeny on Michigan’s indeterminate sentencing system predate Alleyne. As such, the Court’s holdings that this state’s sentencing scheme is constitutionally sound was made without the benefit of the Alleyne Court’s ruling that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 570 US at_;
III. HERRON AND THE EFFECT OF ALLEYNE ON MICHIGAN’S SENTENCING SCHEME
Recently in Herron, a panel of this Court held that the judicial fact-finding required by Michigan’s sentencing scheme for the determination of the minimum term of an indeterminate sentence range does not violate the Sixth and Fourteenth Amendments of the United States Constitution. Herron,
First, the panel opined that “[t]he statutes defendant was convicted of violating do nоt provide for a mandatory minimum sentence on the basis of any judicial fact-finding.” Id. at 403. Although true, the panel’s identification of this fact that distinguishes Herron from Alleyne is constitutionally insignificant in light of Blakely and Booker. Both Blakely and Booker involved
Admittedly, the nature of the floor and the ceiling of the guidelines range under Michigan’s sentencing scheme differs from those at issue in Blakely and Booker. In Blakely and Booker, the floor of the guidelines range represented the legally prescribed minimum, and the ceiling represented the legally prescribed maximum. In 'contrast, the floor of the guidelines range in Michigan is the lowest minimum sentence a court can impose, and the ceiling is the maximum minimum sentence a court can impose. Yet this difference does not change the following facts: Michigan’s guidelines range
Significantly, the availability of a departure does not extinguish the “mandatory” nature of the guidelines range. As previously discussed, the Court stated the following in Booker:
The availability of a departure in specified circumstances does not avoid the constitutional issue .... [D]epartures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the [Sentencing] Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. [Booker,543 US at 234 .]
The same can be said of departures in Michigan. Departures in Michigan are not available in every case. Indeed, it is well established that the Legislature intended “substantial аnd compelling reasons” justifying a departure to exist only in “exceptional cases.” Fields,
Third, the Herron panel viewed judicial fact-finding under Michigan’s sentencing guidelines as falling within the wide discretion afforded a sentencing court
Michigan’s sentencing scheme requires a sentencing court to engage in fact-finding by scoring the offense variables to determine the applicable guidelines range for a minimum sentence. When a sentencing court in Michigan engages in that fact-finding, it is not finding facts in the exercise of its discretion to select a sentence within a range authorized by law. Rather, it is finding facts to determine a sentence range authorized by law.
Accordingly, I disagree with the basis for the Herron panel’s conclusion that the judicial fact-finding required by Michigan’s sentencing scheme does not violate the Sixth and Fourteenth Amendments of the United States Constitution. I conclude that it does. Under Apprendi and its progeny, the mandatory minimum sentence in Michigan is the guidelines range itself, and the mandatory minimum permissible for purposes of Alleyne is the guidelines range as determined solely on the basis of a defendant’s criminal history and the facts reflected in the jury’s verdict or admitted by the defendant. See Blakely,
This increase in penalty is best shown by illustration. Suppose a defendant’s criminal history and facts found by a jury produced an appropriate Michigan guidelines rangе of 42 to 70 months’ imprisonment. However, after engaging in statutorily required fact-finding, the appropriate guidelines range becomes 51 to 85 months’ imprisonment, and the court imposes a minimum term of imprisonment of 85 months. Because of the judicial fact-finding, the maximum possible minimum sentence to which the defendant was exposed increased from 70 months to 85 months. See, generally, Apprendi, 530 US
In Booker,
These same concerns exist when considering what remedy should be adopted to ensure that Michigan’s sentencing scheme passes constitutional muster. I would adopt an approach in line with Booker that makes the guidelines in Michigan advisory. Under such an approach, a sentencing court must still determine the appropriate guidelines range as provided in MCL 777.21 for purposes of fixing the minimum term of an indeterminate sentence as provided in MCL 769.8(1). The preparation and use of a presentence investigation report would remain to assist the court. See, generally, MCL 771.14. The court must then consider the appropriate guidelines range as an aid; however, it will no longer be required under MCL 769.34(2) to impose a minimum sentence within the appropriate guidelines range. Like the federal sentencing guidelines, the purpose of the Michigan sentencing guidelines is to promote uniformity and consistency in sentencing. Booker,
In sum, I believe that Herron was wrongly decided. Under Apprendi and its progeny, which now includes Alleyne, the judicial fact-finding required by Michigan’s sentencing guidelines to determine a guidelines range within which a sentencing court must fix a minimum term of imprisonment violates the Sixth and Fourteenth Amendments of the United States Constitution. As a remedy, I would make the sentencing guidelines in Michigan advisory as the United States Supreme Court did with the federal sentencing guidelines in Booker. However, notwithstanding my disagreement with the decision in Herron, Herron is binding on this Court and must be followed in this case. See MCR 7.215(J)(1). Therefore, I must concur with the result reached by my colleagues that defendant is not entitled to resentencing.
Notes
Subsection (a) of the sentencing statute, 18 USC 3553, listed the sentencing guidelines as one factor to consider when imposing a sentence, but subsection (b) provided that “the court ‘shall impose a sentence of the kind, and within the range’ established by the Guidelines, subject to departures in specific limited cases.” Booker,
Determinate sentences are required for first-degrеe murder, MCL 750.316 (life in prison without the possibility of parole), and carrying or possessing a firearm when committing or attempting to commit a felony, MCL 750.227b(l) (two years in prison for the first conviction, five years for the second conviction, and ten years for a third or subsequent conviction). See also McCuller,
“[T]he statutory maximum sentence is subject to enhancement based on Michigan’s habitual offender act, MCL 769.12.” Drohan,
“If the upper limit of the minimum sentence range is 18 months or less,... the cell [of the sentencing grid] containing the range is an ‘intermediate sanction cell.’ ” Harper,
Concurrence Opinion
oconcurring). I concur with the lead opinion’s conclusions that the trial court did not abuse its discretion by departing upward from defendant’s sentencing guidelines range and that defendant’s рresentence investigation report (PSIR) must be corrected on remand. I write separately because, like Judge BECKERING, I believe that the analysis in People v Herron,
This situation was, however, wholly altered by the Court’s 2013 decision in Alleyne, which unequivocally held that that the Sixth Amendment is violated when judicial fact-finding is used to set a mandatory minimum. Indeed, Alleyne explicitly stated that “Harris is overruled” and went on to hold that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 570 US at_;
Nevertheless, Herron concluded that the low end of a Michigan guidelines minimum sentence range is not “a mandatory minimum floor of a sentencing range.” Herron,
Moreover, the definition of “mandatory” that must govern our analysis was set forth in Booker,
Herron suggests that the only sentencing factors that fall within Alleyne are those that are also elements of the crime. However, whether a state labels a sentencing
“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.” ... “[T]he characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative of the question ‘who decides,’ judge or jury[.]” [Booker,543 US at 231 , quoting Ring v Arizona,536 US 584 , 602, 605;122 S Ct 2428 ;153 L Ed 2d 556 (2002) (emphasis added).]
While I reject Herron, I do not agree with Judge BECKERING’s conclusion in her concurrence that the top end of the applicable Michigan guidelines range constitutes a “mandatory maximum.” First, this proposition was rejeсted by our Supreme Court in Drohan,
Judge BECKERING correctly observes that the upper end of the Michigan guidelines constitutes a “maximum minimum,” but there is no case that establishes that category as being of Sixth Amendment import. See id. at 162-163; McCuller,
I therefore disagree with Judge BECKERING’s view that Alleyne renders the entirety of Michigan sentencing guidelines constitutionally infirm. Alleyne bars judicial fact-finding only to the degree that fact-finding is used to set a sentencing “floor,” i.e., a mandatory minimum. In our sentencing system, it is only the
While judicial fact-finding may be constitutionally used to set an upper limit on a minimum term, it may not be constitutionally used to set a lower limit, as that limit constitutes a sentencing “floor” as defined in Alleyne. Like Judge BECKERING, I would follow the United States Supreme Court’s approach to the remedy in such a setting, i.e., by holding that when there is a constitutional infirmity in the guidelines, their application shall be advisory rather than mandatory. However, contrary to Judge BECKERING’s view, only the lower end of a guidelines range, or “minimum minimum,” constitutes a sentencing floor under Alleyne, and, therefore, only the lower end of a range need be advisory only. Under this approach, trial courts would continue to score the guidelines on the basis of findings made under a preponderance-of-the-evidence standard. See People v Hardy,
Defendant was sentenced to a minimum term of 96 months, well above the mandatory minimum of 43 months set by the low end of the applicable guidelines range. The factual findings made by the trial court, therefore, did not prevent defendant from receiving a minimum sentence below that floor. Accordingly, the factual findings made by the trial court did not violate defendant’s Sixth Amendment rights, and he is not entitled to resentencing.