People v. McCuller

672 479 Mich 672 PEOPLE v McCULLER 26, July Docket No. 128161. Decided 2007.

Raymond by jury A. McCuller was convicted in the Oakland Circuit great bodily Court of assault with to intent do harm less than court, Kuhn, J., murder. The D. Richard sentenced the defendant sentencing guide- as a second-offense offender habitual within the range years prison. appealed, lines to 2 to in The defendant that, (PRV) contending prior because his record variable score produced range alone recommended minimum sentence of zero months, 769.34(4)(a) to 11 he was entitled under MCL to an prison intermediate sanction did not include a term. The argued sentencing Blakely defendant that the court violated v Washington, (2004), by judicial engaging 542 US 296 in fact- finding (OVs), thereby producing to score his offense variables gave range minimum sentence the court the option imposing prison of either an intermediate or a sanction Appeals, PJ., term. The Court of and Geiffin and Talbot, Wilder, JJ., curiam, unpublished opinion per in affirmed an issued Janu- (Docket 250000). ary Michigan Supreme Court, No. granting appeal, argument in lieu of leave to ordered oral on grant application appeal. whether to the defendant’s for leave to (2005). Following argument, Michigan 474 Mich 925 oral the Court, Supreme opinion in a memorandum and (Kelly Cavanagh, JJ., dissenting), judgment Appeals affirmed the Court of regard with appeal defendant’s and denied leave to respects. Supreme judicial in all other Court held that fact-finding to determine the minimum term a defendant’s Blakely indeterminate sentence not violate does unless the fact- finding increases the maximum to which right. legal 769.34(4)(a), had a The Court held that under MCL however, legally a defendant is not entitled to an intermediate resulting sanction until after the have been OVs scored and the OV score, conjunction class, with the PRV score and offense upper that the indicates limit of the defendant’s recommended range Therefore, minimum sentence is months or less. held, Blakely by Court engag- court does not violate judicial ing fact-finding OVs, score v McCuller guidelines did not properly in this case determined Mich 176 intermediate sanction. 475 entitle the defendant to an (2006) Michigan Supreme The United Court vacated . States judgment and remanded case to that Court Court’s California, light Cunningham v for further consideration (2007). Michigan,_US_; v US_; 127S McCuller Ct 856 (2007). S Ct 1247 joined by opinion by Chief Justice In an Justice Corrigan, Supreme and the and Justices Weaver, Young, Taylor Markman, held-. Court engaged sentencing Blakely it in not violate when The court did fact-finding in and scores judicial score the OVs then used those to determining the defendant’s minimum sentence. qualify intermediate A not even for an 1. defendant does along with after are scored and considered until the OVs sanction sentencing court’s score the offense class. The the PRV and fact-finding scoring defendant’s does not increase the the OV’s right Blakely. to statutory A has no maximum under using only portion a her calculated have his or minimum sentence conviction, Upon statutorily defen- factors. a enumerated of the statutory only legally sentence for entitled to the maximum dant is legal right any expect lesser has no the crime involved and score, score, PRV Because the defendant’s OV maximum sentence. place an him in intermediate sanction offense class did not and cell, properly qualified he never for an intermediate sanction. cell, placed the guidelines and the defendant a straddle scored sentencing him to a its discretion to sentence court exercised years. statutory prison the maximum of sentence within result, given Cunningham it a does not alter this involved sentencing clearly law that is different California determinate sentencing Michigan’s from indeterminate scheme. on the 2. Even if the defendant was entitled to be sentenced only, People Harper, v Mich 599 his PRV under basis of score (2007) by , provided an on the conditional limit incarceration statutorily not establish defendant’s intermediate sanction does jury’s by required authorized the verdict or maximum sentence Rather, legislative leniency,giving guilty plea. it is a matter of the period that is opportunity to be incarcerated for a defendant plea. by guilty or the than that authorized verdict less Thus, sentence if the recommended minimum even defendant’s cell, statutory maximum his in an intermediate sanction was sentencing years. court did not would remain sentence by sentencing Blakely the defendant to violate years prison. 15of maximum 479 Mich 672 Blakely, 3. Even if the court violated the error was underlying variable harmless. The factors the offense scores were supported overwhelming and A uncontested evidence. scoring unquestionably would the offense variables have reached the same as the court. result Affirmed. judicial dissenting, fact-finding Justice concluded right in this case violated the defendant’s Sixth Amendment to a trial by jury, sentencing guidelines would and hold that are unconsti- applied tutional as in this case. As the United States Court recently Cunningham, most reaffirmed in a defendant is entitled to solely prior a maximum sentence that is based the defendant’s on any proved convictions and facts admitted defendant or

jury beyond bright-line a reasonable This is doubt. rule. When defendant, alone, on the basis of or her his PRV score is entitled to a range specified is sentence that within the in an intermediate 769.34(4)(a) cell, sanction MCL sets the defendant’s sen- tence, jail upper which cannot exceed a term of either limit of the months, recommended minimum sentence or 12 whichever is Cunningham it, preceding shorter. Under the cases maxi- longest give mum sentence can the court the defen- only dant on the basis of the defendant’s criminal record and Any judicial fact-finding using admissions and the verdict. a preponderance of the evidence that increases this maximum sen- tence, necessary fact-finding the such as the score offense variables compelling depart impose or to state a substantial and reason to and prison sentence, an indeterminate In case unconstitutional. PRV him defendant’s level entitled to a maximum sentence of an jail. intermediate sanction that included no than more 11 months in Thus, sentencing by OVs, scoring court erred the defendant’s prison which him a moved into straddle cell that allowed a sentence. Cunningham, sentencing may using Under a court not score the OVs judicial fact-finding unless the level defendant’s PRV itself is too high place an defendant in intermediate sanction More- cell. over, reading plain sentencing it from is clear a of the statutes that Legislature intended intermediate sanction cells to maxi- dictate Michigan, mum an sentences. sanction intermediate that includes jail any term is treated like other maximum sentence: when jail, defendant finishes and is the term released from is no there supervision any concerning further or determination the need for beyond further incarceration. The error in this not case was harmless using a reasonable doubt because the trial court scored the OVs facts v McCuller by overwhelming defendant’s supported evidence. The that were not vacated, remanded to the the case should be and sentence should be resentencing. for trial court Cavanagh, dissenting, agreed result advocated with the Justice Blakely Cunning- requirements forth in set Justice Kelly. dealing sanctions. with intermediate be followed when ham must judicial engaged improperly in fact- Because resentencing. finding, for be remanded the case should — Sanctions. Sentences Intermediate until after qualify intermediate sanction for an

A defendant does resulting offense scored and the variables have been the offense score, conjunction prior score record variable with variable class, upper limit of the offense indicates and the range is 18 months minimum sentence recommended defendant’s Blakely Washington, less; v court does not violate judicial fact-finding (2004), engages to score it 542 US 296 when calculating minimum the recommended variables offense range scoring minimum sentence results in a even if requiring prison term in cell or a cell that is in a straddle sentencing grid an intermediate appropriate rather than 769.34[4][a]). (MCL cell sanction Casey, L. Cox, Attorney Thomas General, Michael A. Attor- Gorcyca, David G. General, Prosecuting Solicitor Todd, and Robert C. Chief, ney, Joyce F. Appellate Division Williams, Attorney, people. for the Prosecuting Assistant Desiree M. Ferguson) (by Defender Appellate

State the defendant. for

Amici Curiae: Attorneys of

Kimberly Thomas Criminal Defense Michigan. Casey, Thomas L. Cox, Attorney General,

Michael A. E. Gorcyca, and William David G. General, Solicitor Attorney Molner, General, for the Attorneys Assistant Attorneys Association of Prosecuting General and Michigan.

676 479 Mich 672 Opinion op the Court

Kym L. Worthy, Timothy Prosecuting Attorney, and A. Baughman, Research, Training, Chief of and Ap- peals, Prosecuting Wayne County Attorney. for the

CORRIGAN, companion J. This is one of three cases application Blakely Washington, v involving the 542 US 296; 2531; (2004), 124 159 L Ed 2d Michigan’s S Ct 403 See People Harper, v sentencing scheme. also Mich (2007). 599; 739 NW2d This case returns to us following a remand from the States Supreme United Court. In our previous opinion, we held that a sentencing (OVs) court must score both offense variables and the (PRVs) prior record variables to arrive at a defendant’s range. minimum sentence We reasoned that a sentencing Blakely court does not violate when it principles engages judicial fact-finding to score OVs in order calculate a defendant’s recommended minimum sentence sentencing guidelines, under the if even the defen- dant’s PRV score alone would him in an place “interme- McCuller, v diate sanction 176; cell.”1 475 Mich (2006) (McCuller I). 715 NW2d 798 Supreme Court subsequently vacated our judgment remanded the case to us for light further consideration in of Cunning ham v California, 856; Ct 127 S 166 L Ed US_; (2007). v 2d 856 McCuller 127 S Michigan,_US_; (2007) (McCuller II). Ct 1247 Having now considered Cunningham, reaffirm original we our decision for three reasons.2 falling A defendant within an intermediate sanction cell must be sentenced, compelling departure, absent a substantial and reason for to an prison intermediate sanction that does not include term. MCL 769.34(4)(a). original decision, not, reaffirming our as Kelly’s we do Justice contends, imply “simply

dissent did not Court under Michigan’s sentencing stand Post laws.” Justice Kelly 699. seems to People v McCuller Opinion of the Court view that not alter our

First, does Cunningham sentencing statutory requires scheme Michigan’s the PRVs before the OVs and to score both court A de- minimum sentence. defendant’s determining the sanction is for an intermediate qualification fendant’s sentencing court’s calculation on the contingent sentencing A variables. sentencing these application increase the OVs does not fact-finding scoring in court’s Blakely.3 under statutory maximum the defendant’s the PRVs OVs and Here, scoring of both the proper sanction cell. in an intermediate did not defendant place him in a “straddle Instead, placed scores defendant’s in years prison. sentence of 15 with a maximum cell” statutory maxi- within this Defendant was sentenced mum. 621-638, in at

Second, Harper, supra explained as we California, true indeterminate has a Michigan, unlike OVs A court scores the sentencing scheme. sentencing for the mini- the recommended only to calculate sentence, not to arrive of the defendant’s portion mum sentence, by which is set at the defendant’s maximum con- limit on incarceration statute. The conditional 769.34(4)(a) in MCL intermediate sanction tained —an statutorily re- —does not establish the defendant’s by maximum sentence authorized quired a matter of guilty plea, or the but is instead verdict leniency, giving opportunity a defendant legislative Supreme simply something that is not there. read into the Court’s order Kelly Supreme in its that the Court indicated order Justice is incorrect Michigan’s sentencing problem Amendment with that “there is a Sixth exactly order for guidelines.” at 751. We take the Court’s Post light of the matter further in it for us to consider what is: remand Cunningham. holding does not direct us to decide The order Court’s differently previous our decision. the case from v Appeals the same conclusion reached The Court (2007). 158, 168-171; App Uphaus, 737 NW2d 519 275 Mich 479 Mich 672

Opinion op the Court less period be incarcerated for a than authorized the jury’s guilty verdict or the plea. Harper, supra Therefore, if 603-604. even were to be sentenced on the basis of his PRV score alone, the sentencing court would not violate Blakely him to the years of 15 prison.

Third, even if Blakely violated by sentencing defendant to a term of imprisonment OVs, based on scoring its of the the error was harmless under People Carines, v plain error standard (1999). 750, 763-764; Mich 597 NW2d 130 The factors underlying the scoring of the OVs were uncontested and supported by overwhelming evidence. We are firmly convinced that a jury would have reached precisely the same result.

I. FACTS AND PROCEDURAL HISTORY Defendant apparently harbored some resentment to- victim, ward the Larry Smith, because a woman who once lived with defendant had left him for Smith. Smith and the woman were imbibing at a local bar when Smith was told that a man in outside the parking lot was harassing Smith’s dog. outside, When Smith went he heard someone behind him. He turned and saw defendant a swinging blunt object bat, that looked like a pipe, or a club at his head. The next thing Smith remembered was regaining consciousness hospital. As result of defendant’s Smith, assault on he concussion, suffered a nose, broken bone, broken cheek eye socket, broken skull, fractured and collapsed right inner ear He wall. also lost teeth on the right side of his jawbone. lower

A jury convicted of defendant assault with intent great do bodily murder, harm less than 750.84, MCL which has a penalty years prison. 10 Because defendant was a offender, second-offense habitual 679 v McCuller Opinion of the Court to en- had the discretion however, sentencing court maximum sentence to 15 hance defendant’s 769.10(l)(a).4 In defendant’s determining MCL years. court scored range, minimum sentence had been 1 the victim for OV because points MCL weapon,” other by any type “touched 777.31(l)(c) (now 777.31[l][d]); point for OV MCL any poten- or used other “possessed defendant because 777.32(l)(d) (now MCL MCL tially weapon,” lethal 777.32[l][e]); points “[l]ife and 25 for OV 3 because injury oc- threatening permanent incapacitating or 777.33(l)(c). victim,” MCL Defendant’s curred to a had prior score was because he one points total PRV placed These scores misdemeanor conviction.

in the B-IV cell for a class D offense. As a second-offense offender, habitual defendant’s calculated minimum sen- months, was 5 to 28 which is a straddle tence scoring cell.5 Because the the OVs and PRVs 769.10(l)(a) provides may impose that a MCL longer sentence that times than the maximum sentence on a IV2 habitual offender: second-offense (1) felony person attempt If a has been convicted of a or an felony, commit a the conviction occurred in this state or whether felony attempt felony have been for a to commit a in this

would state, person subsequent state if obtained in this and that commits a felony state, person punished upon within this shall be conviction sentencing subsequent felony of the under section 13 of this chapter as follows: (a) subsequent felony punishable upon a first conviction If the life, court, except by imprisonment for a term less than as XI, chapter may provided 1 of otherwise in this section or section imprison- place person probation person to on sentence term that is not more than times the ment for maximum IV2 longest prescribed or for a for a first conviction that offense term lesser term. 5 when, sentencing after the A defendant falls within a straddle cell scored, upper mini- limit of the recommended variables have been 479 Mich Opinion of the Court cell, placed defendant in a straddle option had the to either an prison intermediate sanction or a term with a minimum guidelines within MCL range. 769.34(4)(c). The court chose to sentence defendant guidelines within the a 2- 15-year to term of imprisonment.

On appeal, defendant contended that he was entitled to resentencing under Blakely because the had not beyond found a reasonable doubt underlying the facts sentencing court’s of the scoring argued OVs. Defendant that absent the sentencing OVs, court’s scoring of the his minimum sentence range would have been zero to months, which would have him in placed an intermediate cell, sanction entitling him to an intermediate sanction as a maximum sentence. The Court of Appeals affirmed sentence, defendant’s conviction and rejecting defen- dant’s argument because Blakely does not to Michi- apply gan’s sentencing system. indeterminate

This Court also affirmed defendant’s sentence. We held that the sentencing court had not violated Blakely by engaging judicial fact-finding to score the OVs necessary to calculate the recommended minimum sen range. tence explained We that a defendant cannot be sentenced to an intermediate sanction scoring the only PRVs Thus, OVs must also be scored. defen —the dant was not entitled resentencing, because his sentence was the maximum of 15 years, which the sentencing court had not exceeded. I, McCuller supra at 181-183. months, mum sentence exceeds 18 but the lower limit of the recom- 769.34(4)(c). mended minimum sentence is 12 months or less. MCL appeal, issue, On Blakely defendant raised issues other than the but application appeal respect this Court denied defendant’s for leave to with I, supra

to those issues. McCuller at 183. People v McCuller 681 Opinion of the Court thereafter vacated our judgment Court and remanded this case to this Court “for further v light California, Cunningham consideration (2007).” 856; 166 L.Ed.2d 856 U.S. 127 S.Ct. _; II, S Ct at 1247. supra, McCuller

II. STANDARD OF REVIEW questions interpreta- This case involves tion and constitutional which are both re- questions, 624, Stewart, 631; de v 472 Mich People viewed novo. (2005); Drohan, 140, Mich 698 NW2d 340 v (2006). 146; An unpreserved 715 NW2d 778 claim of plain constitutional error is reviewed for error affecting Carines, rights. substantial at 763-764.7 supra

III. ANALYSIS A. BACKGROUND 466, 490; In v Apprendi Jersey, New 530 US 120 S Ct 2348; (2000), L147 Ed 2d 435 held Supreme Court under the Sixth and Fourteenth Amendments of Constitution, the United States than the “[o]ther fact of conviction, a prior any penalty fact that increases the beyond prescribed statutory for a crime jury, must be to a proved beyond submitted In Blakely, reasonable doubt.” the Court supra held ‘statutory pur- that “the maximum’ for Apprendi poses judge may impose is the maximum sentence solely on the basis of the facts reflected (Emphasis verdict or admitted the defendant.” de- leted.) regard schemes, indeterminate Court stated: Blakely agrees error be Defendant that his claim of constitutional should reviewed under error standard. plain 479 Mich 672 Opinion Court judicial Of course indeterminate schemes involve fact- (like board)

finding, judge parole may implicitly in that a important on facts he deems to the exercise of rule those pertain his discretion. But the facts do not legal right whether the defendant has a to a lesser sentence judicial —and that makes all the difference insofar as impingement upon jury the role of the is con- traditional (emphasis original).] [Id. cerned. at Thus, sentencing court in an indeterminate sentenc- ing by scheme does not violate Blakely engaging fact-finding to determine the minimum term of a defen- dant’s indeterminate sentence unless the fact-finding the statutory increases maximum sentence to the which legal right.8 defendant had a Apprendi, Blakely, The constitutional rule of and Booker, 220; 738; [United States v 543 US 125 S Ct 160 L (2005)] (1) Ed 2d 621 can be summarized as follows: a trial may impose greater statutory court not a sentence than the prior maximum unless it does so on the basis of a convic- by tion or the fact at issue is “admitted the defendant or (2) proved jury beyond doubt”; to a a reasonable where a through defendant’s maximum sentence is calculated the mandatory sentencing guidelines, use of may maximum is the imposed maximum sentence that be United, States, 545, 566; 2406; In Harris v 536 US 122 S L Ct 153 Ed (2002), Kennedy 2d 524 Justice stated: The Fifth and Sixth Amendments ensure that the defendant get punishment bargained “will never more than he for when he crime,” they promise did the but do not that he will receive “anything (Scalia, Apprendi, supra, than less” that. 530 US at 498 J., concurring). grand jury alleged, jury If the has and the trial has found, necessary maximum, impose all the facts the barriers government may judge any

between and defendant fall. The select range, alleged sentence within the based on facts not in the proved specified indictment or to the if those facts are —even by legislature, they persuade judge and even if to choose a higher much than sentence he or she otherwise would have imposed. sentence, That a fact affects the defendant’s even dra- matically so, by does not itself make anit element. v McCuller Opinion of the Court guidelines, solely under those based on the defendant’s prior proven beyond convictions and those facts a reason- (3) doubt; able may trial court consider facts and proven beyond circumstances not a reasonable doubt in [Drohan, imposing statutory range. within the sentence (citations omitted).] supra at 156 Drohan, supra 160-161, explained this Court Michigan has an indeterminate scheme.9 “The by court, the trial determined law.” Id. at 161. rather Michigan’s but is set sentenc- ing guidelines a range create within which sentenc- ing sentence, court minimum must set but may not impose greater a sentence “Thus, the statutory Id. than maximum. the trial power impose court’s a sentence is always derived verdict, from the because ‘maximum- minimum’ always sentence will fall within verdict.” Id. at 162. authorized the jury’s Therefore, Michigan’s indeterminate scheme sentencing is valid Drohan, under Blakely. supra at 162-164; Harper, supra 615. B. SCORING THE OVS TO DETERMINE THE MINIMUM SENTENCE

1. DISCUSSION Drohan Despite decision, our argues defendant that aspect Michigan’s one of indeterminate sentencing very require limited number of determinate sen oflenses (life murder, first-degree prison tences includes MCL in 750.316 without possibility parole), carrying possessing and of or a firearm when (two committing attempting felony, years to commit a MCL 750.227b prison conviction, years conviction, for the first five for the second conviction). Drohan, years subsequent supra ten for a third or at 161 n crimes, guidelines When 12. a defendant is sentenced for one of these are not scored to determine minimum defendant’s sentence. The Legislature singled has out these crimes as rare instances in which the sentencing sentencing. court retains no discretion in Mich 672

Opinion the Court Amendment the Sixth violates nonetheless scheme claims that Defendant States Constitution. the United him in an interme- placed score alone his PRV because to a maximum cell, was entitled he diate sanction Defendant time. prison did not include sentence Blakely by court violated that the contends OVs, to score the fact-finding judicial engaging sentence his maximum increasing thereby allegedly imprison- a term of an intermediate sanction from and affirm reject argument defendant’s again ment. We defendant’s sentence. in Michi- is sentenced

Generally, when by law shall be provided penalty gan, “[t]he 769.8(1). sen- ..” MCL Our sentence . . the maximum a defendant’s range only set tencing guidelines 769.34(2). MCL minimum sentence. minimum sentence a defendant’s

court determines PRVs, and OVs, the by considering together range 777.21(1).10 Generally, once MCL the offense class. 777.21(1) provides: MCL section, Except provided in this for an offense as otherwise chapter, part the recommended 2 of this determine enumerated in as follows: minimum (a) part 2 category from of this offense for the offense Find the chapter, the offense chapter. determine From section only category and score scored for that offense variables to be part provided in 4 of this as variables for the offender those offense points the offender’s offense chapter. to determine Total those level. variable (b) provided prior the offender as all record variables for Score points chapter. part Total those determine 5 of this prior level. offender’s record variable (c) part 2 of this offense from offense class for the Find the part grid Using class in chapter. for that offense minimum sentence chapter, the recommended of this determine v McCuller Opinion of the Court sentencing court calculates the defendant’s guidelines must, range, it and absent substantial compelling rea- sons, a minimum impose sentence within range. 769.34(2). are, however, MCL There exceptions to this rule. exception pertains One when the limit upper of the recommended minimum sentence range months less. In cases, court, or such unless it reasons, articulates substantial and compelling must impose an intermediate sanction: upper

If the limit of recommended sen- minimum range tence for a defendant under determined the sentenc- ing guidelines in chapter set forth XVII is 18 months or less, impose court shall an intermediate sanction unless the court states on record compelling a substantial and jurisdiction reason to sentence the of individual to the department may of corrections. An intermediate sanction jail include does upper term that not exceed the limit range months, the recommended minimum sentence or 12 769.34(4)(a).] [MCL whichever is less. 769.31(b)

MCL defines as “pro “intermediate sanction” sanction, any bation imprisonment or other than in a prison state or reformatory, may lawfully state be imposed. includes, Intermediate sanction but is not limited 1 or to, more of” several options, including up to one year jail, probation any with conditions autho law, probation rized with jail, and other such options as community house arrest and service.* range from the intersection of the offense offender’s variable level prior record variable level. The recommended minimum sentencing grid within a as a is shown or months life. options The nonexhaustive list of intermediate sanction includes: (¿)Inpatient outpatient drug participation or treatment drug chapter judicature treatment court under 10A the revised 1961, act of 1961 PA MCL 600.1060 to 600.1082. 479 Mich 672 Opinion of the Court us to does Cunningham require hold that

We court does A modify our decision. previous fact-finding by judicial Blakely engaging not violate a defendant’s recom- score OVs to calculate the de- range, even mended minimum when placed have him in an score alone fendant’s PRV would involved the Cunningham cell. intermediate sanction determi- examination of California’s Supreme Court’s (DSL). we Harper, law In described nate holding Cunningham: facts and Cunningham, tried convicted defendant was and age 14. abuse a child under the of of continuous sexual defining prescribed precise the offense three statute Hi) probation required any autho- conditions or Probation with by rized law.

(iii) probation. Residential (iv) jail. Probation with

(v) special Probation with alternative incarceration. (vi) Mental health treatment.

Cvii) counseling. Mental health or substance abuse {viii)Jail.

(ix) Jail work or school release. with (x) Jail, day parole under with or without authorization 60, 1962 PA 801.251 to 801.258. MCL

(xi) Participation community program. in a corrections (xii) Community service.

(xiii) Payment of a fine.

(xiv) arrest. House 769.31(b).]

(xv) monitoring. [MCL Electronic v McCuller Opinion of the Court imprisonment lower, middle, upper terms and term — 12, years, respectively. sentences of and 16 The statute judge which a sentencing that controlled term should “ provided impose imposition ‘the court shall order term, the middle unless are aggra- there circumstances in ” mitigation or vation of the crime.’ Circumstances in mitigation aggravation or were to he determined considering record, probation court after the trial report, parties, officer’s statements submitted victim, “any family, the victim’s further evidence sentencing hearing.” judge introduced at the in Cun- ningham 16-year sentenced the upper defendant to the term, on of judge’s findings aggravating the basis the of particular including vulnerability of facts the the victim conduct, the and defendant’s violent a which indicated community danger supra, serious the [Harper, at 619- 620.]

The Cunningham Court concluded that the sentence violated the defendant’s rights because upper may imposed only

“an term sentence he when the judge aggravating trial finds an circumstance.... An ele- charged offense, of ment the essential to a determi- guilt, guilty of plea, nation or admitted in a defendant’s qualify Instead, not aggra- does as such a circumstance.... vating depend discretely circumstances on facts found and solely by judge. Blakely, therefore, the with accord the statutes, prescribed term middle California’s not the term, U.S., upper statutory is the relevant 542 maximum. (‘[T]he 303, “statutory at 2531 S.Ct. maximum” for Apprendi purposes judge is the maximum a may impose solely on the basis in the facts reflected by (emphasis origi- verdict admitted defendant.’ nal)). aggravation Because are circumstances in found judge, jury, only not the and need be established evidence, preponderance beyond not a reasonable doubt,... bright-line Apprendi’s the DSL violates rule: Except prior conviction, ‘any for a fact that increases penalty beyond prescribed statutory for a crime maxi- jury, mum must proved beyond be submitted to a [July- Mich Opinion Court U.S., 490, at 120 S.Ct. 2348.” doubt.’ 530 reasonable 620, Cunningham, supra, 127 S supra quoting [Harper, at 868.] Ct at Blakely its from holding Court reiterated “ maximum,”’... “statutory ‘is not relevant ‘[t]he after find- judge may impose

the maximum sentence facts, may impose he the maximum ing additional but ” findings.’ Cunningham, supra, without any additional 860, at quoting Blakely, supra 127 S at 303-304. Ct Blakely, violated holding After that California’s DSL states have “[o]ther the Court advised California ‘to exercise broad permit judges genuinely chosen to which, ‘every- range,’ ... within a discretion no Amendment shoal.” one encounters Sixth agrees,’ Booker, supra, Ct at Cunningham, quoting 127 S Cunningham modify did supra 233. The decision Blakely. language DSL contains some

Although California’s 769.34(4)(a), to MCL further examina- facially similar differ- tion of two schemes reveals clear DSL, le- ences. Under California’s was entitled to maximum sentence of gally years any DSL did not attach to the prison. The conditions sen- 12-year defendant’s entitlement to the Blakely allowing tence. The DSL violated the sen- 12-year court to exceed that maximum sentence tencing jury the facts and found on basis of not submitted to the beyond a reasonable doubt. contrast,

By sentencing scheme does not Michigan’s of an inter- entitle defendant to a maximum sentence way that the defendant in mediate sanction the same Cunningham 12-year was entitled to a maximum sen- not even Michigan, qualify tence. In a defendant does the are until after OVs for an intermediate sanction 769.34(4) (a) a de- plainly MCL prescribes scored. People v McCuller Opinion of the Court for an qualifies fendant intermediate sanction only “[i]f the upper the limit of recommended minimum sentence for a range defendant determined under the sentencing ... or guidelines is months less ... .” (Emphasis added.) a To determine defendant’s minimum sentence under range guidelines, sentencing must first score the OVs and the PRVs and consider Thus, MCL offense class. 777.21. MCL under 769.34(4)(a), a defendant not for an qualify does even intermediate sanction until after the court has scored variables, sentencing all including OVs, those variables indicate that limit upper of defendant’s minimum sentence is 18 or months words, less. In other a defendant’s for an qualification contingent intermediate sanction is the sentencing on court’s calculation of all of the defendant’s A right variables. defendant no legal has to have his minimum only sentence using portion calculated the statutorily enumerated factors.12 conviction,

Upon a defendant is legally only entitled to the statutory maximum sentence for the crime A legal involved. defendant has no right any expect lesser stated, maximum sentence. As the Blakely Court whether defendant a legal has to a lesser right all the judicial “makes difference insofar as impingement upon traditional role of the Thus, concerned.” Blakely, at 309. supra court does not violate Blakely principles engaging 12Further, Michigan expect defendant cannot to fall into an intermediate sanction cell at the he time commits the offense because the Indeed, can never be certain the OVs an how will be scored. may attending offender be even aware of some facts the crime until brought just provide examples, he is before a court. To two a defendant may injury ultimately not know the he extent caused a victim for purposes 3, 777.33, property OV full MCL value of he has stolen purposes of OV MCL 777.46. [July- 479 Mich 672 Opinion op the Court the OVs to calculate to score fact-finding

judicial minimum sentence even when range, recommended in a defendant straddle places of the OVs scoring a term instead of an requiring prison or a cell cell fac- sentencing cell. The court’s intermediate sanction do defendant’s maximum findings not elevate the tual sentence, determine the recom- merely but defendant’s may range, sentence conse- mended minimum which for an intermediate sanc- the defendant quently qualify tion. case, guidelines gave scored properly range minimum a recommended sentence

defendant in a placed 5 to 28 months in This prison. cell, for court had the straddle which the a a minimum sentence either impose discretion to guidelines within the prison term with a minimum term 769.34(4)(c).13 an intermediate sanction. MCL also a maximum sentence of Defendant faced years prison for his conviction of assault with bodily a great intent do harm less than murder as offender, 750.84; MCL see MCL second-offense habitual if Michigan’s 769.10. Even intermediate sanction cells are as maximum sentences setting characterized gained legal right Blakely purposes, defendant never Therefore, to an intermediate sanction. Blakely by scoring the

court did not violate OVs 769.34(4)(c) provides: MCL upper If limit of the recommended minimum sentence limit of recommended exceeds 18 months and lower less, the shall minimum sentence is 12 months or sentence departure: as absent a offender follows (i) range. imprisonment To with minimum term within (Ü) may an sanction that include term of To intermediate imprisonment of more 12 months. than v McCuller Opinion of the Court guidelines, within the imposing prison intermediate sanction based imposing than an rather Accordingly, we affirm defendant’s PRV scores alone. on sentence. defendant’s KELLY’S DISSENT14

2. RESPONSE TO JUSTICE scoring trial court’s of the concluding the right Amendment to a violated defendant’s Sixth OVs ignores Kelly’s Justice dissent by jury, trial faulty premise and relies on the statutory language entitled him to an jury that defendant’s verdict re- repeatedly intermediate sanction. Justice KELLY Except prior rule: for a bright-line cites “Apprendi’s conviction, penalty fact that increases the for a ‘any must beyond prescribed statutory crime maximum beyond to a and a reason- jury, proved be submitted ” at Cunningham, supra, able doubt.’ S Ct added). Yet quoting supra (emphasis at 490 Apprendi, woefully misapplies Justice KELLY this rule inter- it as follows: preting

Hence, solely a is entitled to a sentence based defendant (1) (2) prior any on the defendant’s convictions and facts any specifically that he she admitted and facts that were jury. found that, requires to determine

This a conclusion order sentence, appropriate defendant’s maximum only [Post 721.] court should score PRVs. at integral of the interpretation disregards part This only rule that facts used to increase a sen- Apprendi proved need be beyond tence doubt. beyond reasonable Kelly’s in detail Justice dissent discusses issues we address arguments regarding Harper. response Our to her these Post 726-745. Harper opinion. issues can be found 479 Mich 672 Opinion of the Court Kelly’s position

Justice demonstrates a fundamen- misunderstanding tal of the function of the legislative sentencing guidelines and how intermediate sanc- tions work within the overall sentencing scheme. Once the convicted of assault with intent great bodily to do harm less murder than offender, of being second-offense habitual verdict authorized a maximum prison sentence of 15 years. court, point, At that relying on facts, judicially found had to score the various PRVs and OVs to determine the recommended for the minimum portion defendant’s sentence. A defen- only eligible if, dant for an intermediate sanction on the fact, basis of those findings additional “the upper limit the recommended minimum sentence range for a defendant determined under the sentenc- ing guidelines forth in chapter set XVII is 18 months 769.34(4)(a) added). or less . . . .” MCL (emphasis words, other whether a defendant is eligible for an intermediate wholly sanction is determined by addi- findings tional by fact undertaken sentencing in scoring the guidelines, including the OVs. Moreover, a defendant’s entitlement to an intermedi- ate sanction is itself conditioned on the absence of facts, i.e., other judicially found facts that demon- strate a “substantial compelling reason to sen- tence the individual to the jurisdiction of the depart- ment 769.34(4)(a); of corrections.” MCL Harper, see supra Therefore, at 620-638. under Cunningham, an intermediate sanction does not the equiva- constitute 12-year lent of the presumptive maximum sentence DSL, set forth California’s operates but instead in a manner 6-year similar to the lower term that a California court may impose on the basis of its finding of certain mitigating facts at A sentencing. judicially court’s use of found facts to determine McCuller v Opinion of the Court 12-year or a term 6-year term impose whether Blakely afoul of DSL does not run California’s under limited to imposing remains the court because verdict. by jury’s authorized maximum sentence to score the found facts Likewise, judicially the use of whether a defendant in order to determine OVs run sanction does not for an intermediate eligible may trial court never Blakely Michigan afoul because authorized exceed the maximum sentence Harper, supra maximum. See i.e., verdict, statutory studiously ignores plain language 611. Justice KELLY 769.34(4) (a) attempt explain and does not even of MCL intermediate a defendant to an why the statute entitles are as a maximum sentence before the OVs sanction statutory language, Under the a defendant plain scored. until is not for an intermediate sanction clearly eligible minimum under the the recommended by considering has been determined sentencing guidelines that, factors, Before including all the the OVs. appropriate only a defendant can the maximum sentence set expect Thus, although correctly statute.15 Justice KELLY asserts that a defendant is entitled to a Kelly Arizona, Ring v compares Justice the instant case to 536 US 584; 2428; (2002), L 2d the United States 122 S Ct 153 Ed which rejected allowing an Arizona law Court posttrial hearing aggravating judge to determine whether to conduct a opposed imposition penalty, to allow of the death as circumstances existed Ring, distinguishable imprisonment. from to life The instant case is however, juiy’s we discussed —the verdict alone for the reasons have sanction, qualified because an for an intermediate never contingent qualification for an intermediate sanction is on the offender’s Ring, hand, scoring maximum sentence of the OVs. In on the other subject by jury’s imprisonment to such allowed verdict —life —was Harper, supra Further, Id. at 597. contingencies. as discussed in we 25, imposes only Michigan’s one n indeterminate scheme statute maximum sentence set forth maximum sentence —the applicable to the crime. 479 Mich 672

Opinion of the Court verdict, jury’s sentence on the basis of the the maxi- by jury’s mum sentence authorized verdict in this years. case is 15

C. MICHIGAN’S INTERMEDIATE SANCTION CELLS may Even if defendant qualify for an intermediate scored, sanction before the OVs are we nonetheless conclude that the sentencing court did not violate Blakely by sentencing him to a term of imprisonment. If had sentencing court not scored the OVs cell, defendant had fallen into an intermediate sanction he would still not have been entitled to an intermediate sanction as a maximum sentence. As we held in Harper, supra at 603-604: Michigan law, portion

Under the maximum of a defen prescribed by 769.8, dant’s indeterminate sentence is MCL requires sentencingjudge which impose no less than the prescribed statutory maximum sentence as the maximum conviction[16] every felony sentence for Michigan’s unique requiring imposition law of an intermediate sanction 769.34(4)(a) upon fulfillment of the conditions of MCL does not alter the required maximum sentence that is upon jury’s conviction and authorized either the verdict or Rather, guilty plea. the conditional limit on incarcera 769.34(4)(a) tion contained in MCL legisla is a matter of leniency, giving tive opportunity a defendant the to be period incarcerated for a of time less than that authorized guilty plea, verdict or a circum implicate Blakely. stance that does not [Emphasis origi nal.]

Thus, even if fell into an intermediate cell, sanction his statutory maximum sentence would years. remain 15 The sentencing court did not violate Harper, supra As we at 612 n explained habitual-offender statutes are an to this rule. exception 695 v McCuller Opinion of the Court fact-finding to score the in by engaging judicial Blakely statutory range. within that a sentence impose OVs and HARMLESS ERROR D. Blakely violated sentencing if the Finally, even on the and defendant by scoring the OVs As we scores, the error was harmless. of those OV basis 638-640, Blakely errors at Harper, supra explained structural, harmless error subject but are are not also v analysis. Washington Recuenco,_US_; See (2006).17Here, 2546, 2551; 165 L Ed 2d 466 126 S Ct challenge any did not raise constitutional Therefore, defendant must show during sentencing. Carines, affecting rights. supra error substantial plain 763-764; Trujillo-Terrazas, at also United States v see (CA 2005) 10, 814, the same (applying 405 F3d 817-818 unpreserved to an claim of error standard plain violation). only when “Reversal is warranted Blakely in the conviction of an plain, forfeited error resulted error ‘“seri- defendant or when the actually innocent fairness, public reputa- or ously integrity affect[ed] ’ ” Carines, 763, at judicial proceedings.” supra tion of 725, 736; Olano, v 507 US 113 S United States quoting (1993). 1770; important L Ed 2d 508 factor Ct 123 Blakely analysis in this harmless error whether court’s OV scores were supporting facts “ evi- by overwhelming and supported ‘uncontested ” 640, v United quoting Neder Harper, supra dence.’ Ed 2d 1, 17; 1827; 144 L 35 States, 527 US 119 S Ct (1999). explained Harper, supra at 640 n Justice we For reasons Kelly’s Blakely improperly interpretation render errors of Recuenco would unavailability short, any of a per conclusion that harmful se. In would run

particular procedure renders all errors harmful in the trial court analysis directly that forms the crux of the harmless error counter to the holding in Recuenco. See id. States Court’s basis of the United 479 Mich 672 Opinion of the Court

At sentencing, the court scored 10 points for OV because the victim was touched a weapon other than a firearm or cutting stabbing weapon point for OV because defendant possessed potentially lethal weapon cutting other than a or stabbing weapon, firearm, incendiary or an or explosive device. Defen- dant any has not shown that error the sentencing scoring court’s of these OVs affected the outcome of the Carines, proceedings. supra at 763. The jury found that defendant assaulted the victim with the intent to great do bodily murder, and, harm less than although the elements of that crime do not include the touching of a victim with a potentially weapon, lethal those facts were uncontested and supported by overwhelming evidence at trial. In regard 1, to OV the uncontroverted evidence showed that

the victim was struck in bat, the head with a pipe, or club.18 The type severity and injuries the victim’s testimony corroborated the that such a bludgeoning weapon was used. Defendant did not challenge the testimony that he was armed or the evidence regarding the type of used in weapon Rather, the assault. he claimed that he was misidentified as the perpetrator. Thus, the uncontroverted and overwhelming evidence beyond showed a reasonable doubt that the victim was by touched a weapon. regard to OV the uncon- tested and overwhelming evidence regarding mag- the nitude of the injuries victim’s demonstrated that weapon used to injure him was potentially lethal. The jury rejected defendant’s claim of mistaken identity and Kelly’s testimony by Justice dissent arguing mischaraeterizes the weapon by Gregory defendant’s use of a Thompson, was contested prosecution First, Thompson assault, witness. did not witness the but was merely Second, told about it importantly, contrary defendant. and more Kelly’s representation, Thompson testify Justice did not that defendant did weapon beating Rather, Thompson use a actually Smith. testified during cross-examination that he assumed that was armed defendant gestures because of describing heating. defendant made while v McCuller Opinion of the Court inflicted who perpetrator defendant as convicted decision Therefore, sentencing court’s injuries. findings its 2 on the basis of OVs and to score weapon lethal potentially possessed all, if error at was weapon, with that touched the victim harmless. for OV 3 points court also scored 25 sentencing threatening perma- suffered life the victim

because evi- The uncontroverted injury. incapacitating nent the victim was struck so trial showed that dence at He immediately lost consciousness. violently that he bone, concussion, nose, broken cheek broken suffered socket, skull, and collapsed right fractured eye broken side of his right He also lost teeth on inner ear wall. injuries required a severity of these jawbone. lower court’s stay. sentencing Because the ten-day hospital threatening injury the victim suffered life finding that and was supported on uncontested factors was based evidence, based any error overwhelming harmless.19 defendant’s OV 3 score was on OVs, it If had been asked to score result reached the same would have unquestionably the defendants court. Like as the Neder, 15, 643-644, at at and Harper, supra supra con- that he offer suggest does not would do so. given opportunity if to trary evidence Blakely at if the court violated Accordingly, even resen- not be entitled to defendant would sentencing, testimony incorrectly asserts that medical Justice dissent Kelly’s threatening injuries, necessary prove life that the victim suffered was to prosecution’s evidence especially not contest the because defendant did Contrary injuries. to Justice proving and extensive the victim’s serious defendant, Kelly’s assertion, proof to the we do not shift the burden require prosecution to merely the statute does not but note “[ljife threatening testimony prove a or specifically present medical 777.33(l)(c). injury permanent incapacitating ....” MCL 479 MICH 672 Dissenting by Opinion Kelly, J. because he has fencing not shown that error ‘“ “seriously fairness, affect[ed] the integrity pub- ’ ” lic reputation judicial Carines, proceedings.” Olano, supra at quoting supra 736.

W. CONCLUSION The sentencing did not violate Blakely when it engaged judicial fact-finding to score the OVs and then determined defendant’s minimum sentence on the basis of those scores. score, Because defendant’s OV score, PRV and offense class did place him in an intermediate cell, sanction he never qualified for an intermediate sanction. Even if defendant were entitled to be solely sentenced on the basis of the PRVs and the class, offense an intermediate sanction does not consti- tute the statutory maximum sentence authorized jury’s verdict or guilty plea. See Harper, supra at 620-622. Finally, even if the trial court violated Blakely in sentencing prison term, defendant to a any error was harmless because it did not prejudice defendant.

Taylor, C.J., JJ., Weaver, Young, and Markman, and J. concurred CORRIGAN, with This (dissenting). case presents the major- ity with the opportunity to correct an error. When the Court previously sat in judgment case, of this majority found that no Sixth Amendment1 violation had

1 The Sixth Amendment provides: of the United States Constitution prosecutions, In all criminal enjoy right the accused shall speedy public trial, by impartial an of the State and committed, district wherein the crime shall have been which previously law, district shall have been ascertained and to be

informed of accusation; the nature and cause of the to be con- against him; fronted with the witnesses compulsory to have People McCuller v 699 Dissenting Opinion by Kelly, J. occurred at defendant’s sentencing. It sanctioned judge’s fact-finding that increased defendant’s sentence by moving it from an intermediate sanction cell to a straddle cell. The United States granted Court certiorari, decision, vacated the and remanded the case to this Court for further consideration in light its most recent Sixth precedent, Amendment Cunningham, v California, 549 US S 856; 127 Ct 166 L Ed 2d 856 (2007). McCuller v 127 S Ct 1247 Michigan,_US_; (2007). remand, On majority reaches the same before, decision as it did and it implies that the United Supreme Court, States in remanding case, simply did not understand Michigan’s sentencing laws. Be- I cause believe that the majority fails to explain why Cunningham does not require result, different I must again once dissent.

As I previously concluded, judicial fact-finding occurring in this case violated defendant’s Sixth 2 Amendment right to a trial by jury. Michigan’s sen tencing guidelines3 are unconstitutional as applied.

I. PROCEDURAL FACTS A jury convicted defendant of assault with intent to great bodily do harm less than murder. MCL 750.84. In imposing sentence, the trial court attributed scores to (PRVs) the prior record variables and the offense vari- (OVs). ables The court assessed points PRV for previous defendant’s misdemeanor conviction. It as- sessed a total of points. 36 OV But in order to arrive at score, the OV the court had to findings fact, make process obtaining favor, witnesses his and to have the Const, Assistance of [US Counsel for his defence. VI.] Am People McCuller, (2006) 176, 183; See v 475 Mich 715 NW2d 798 J., dissenting). (Kelly, seq. MCL 777.1 et 479 Mich Dissenting Opinion the evidence using preponderance did it which 1 on the basis of for OV points It assessed 10 standard. knife, gun or other than weapon, that a its conclusion 1 point It assessed MCL 777.31. the victim. touched fact that defendant finding of basis of the OV 2 on the MCL 777.32. And weapon. lethal possessed potentially finding on the basis of for OV 3 points it assessed 25 threatening a life victim suffered of fact that Defen- injury. MCL 777.33. incapacitating permanent sentencing supported admissions at dant made no these OV factors. attributed to points bodily harm less great intent to do Assault with D under MCL 777.16d. is a class offense than murder grid. On class D sets forth the MCL 777.65 2 having points a PRV level of a defendant grid, in cell B-IV placed of 36 points and an OV level 5 to range a minimum This cell provides had a prior Defendant MCL 777.65. 23 months.4 scoring used in that was not conviction felony increased the trial court Consequently, PRVs. from 23 25 range by percent, of the number top and MCL MCL 769.105 in accordance with to 28 months 4 cell” because the is referred to as a “straddle This cell may prison sanction. impose sentence or an intermediate either 769.34(4)(c), provides: which cells are addressed MCL Straddle upper minimum sentence limit of the recommended If the of the recommended and the lower limit exceeds 18 months less, the court shall sentence is 12 months or minimum sentence departure: absent a the offender as follows (i) range. imprisonment term within that with a minimum To (ii) may a term of sanction that include To an intermediate imprisonment not more than 12 months. 5 They 769.10, 769.11, offenders. 769.12 deal with habitual and MCL by a set for an offense to increase absolute maximum sentence allow the is the absolute percentage. set forth in these statutes The new maximum People v McCuller 701 Dissenting Opinion by Kelly, .6 777.21(3)(a) This set the minimum sentence 5 28 to months. The court sentenced defendant within

this range, imposing a minimum sentence of 24 months’ and a years’ maximum sentence of 15 imprisonment. sentencing,

After but before defendant filed his claim appeal, the United States Supreme Court released its decision in Blakely 296; v Washington, US S Ct (2004). 2531; L Ed 2d Although defendant had been unable on rely Blakely at sentencing, could, he did, raise it in the Court of Appeals. Unfortunately, the Court of did Appeals not directly address the issue. Instead, it relied on the dicta discussion of Blakely contained in this Court’s decision in People v Claypool, (2004). 470 Mich n 14; 684 NW2d 278 On that basis, it found that defendant was not entitled to resentencing. People McCuller, v unpublished opinion per curiam of the Court of Appeals, January 11, issued (Docket 250000). No.

Originally, this Court held the case in abeyance for (2005). Drohan, the matter People of v see 472 Mich 881 Later, argument oral was heard for purpose determining whether to grant application or take sentencing judge maximum to which the can sentence a defendant. In case, offender, because defendant was a second-offense habitual his possible years. 750.84; sentence increased from to10 MCL 769.10(l)(a). MCL 777.21(3) provides, part: MCL in relevant being 10,11, If the offender is sentenced under section or 12 of chapter 769.10, 769.11, 769.12], [MCL IX and determine the class, category, level, offense prior offense offense variable and underlying record variable level on based offense. To deter- range, mine the recommended minimum sentence increase the upper limit of the recommended minimum sentence deter- part underlying mined under 6 for the offense as follows: (a) being felony, If the offender is sentenced for a second 25%. 479 MICH 672 Dissenting Opinion 7.302(G)(1). MCR pursuant action peremptory other memoran- in a mere the case majority dispatched was not It concluded that opinion. dum cell sentence and sanction an intermediate entitled to find- judicial made properly regardless assessing points, in OV ings of fact McCuller, 176; 475 Mich 715 NW2d v Blakely. People (2006). dissented, Amend- concluding I that a Sixth the entire sen- had occurred and that ment violation be found unconstitutional guidelines must tencing 183. in this case. Id. at applied they as were when sought proceed pauperis leave to Defendant forma for a of certiorari in the United States petitioned and writ granted both motions. It then Court. Court case for remanding the judgment, vacated this Court’s to reconsider it directing and us further consideration This McCuller, 127 S Ct at 1247. Cunningham. light v argued People the case be with Court ordered that (Docket 130988), Burns, v People No. Harper, 131898). (Docket McCuller, v 477 Mich 1288 No. (2007). three cases in argument April We heard oral 2007. SCHEME

II. MICHIGAN’S SENTENCING sentencing statutes must Michigan’s A review of 769.8, begin provides: MCL which with (1) person is convicted for the first time When a committing felony punishment prescribed law and the may prison, the imprisonment be in a state for that offense not fix definite term of imposing sentence shall term, except imprisonment, fix a minimum as but shall penalty provided chapter. The maximum otherwise in this in provided by be the maximum sentence all cases law shall by chapter shall be stated except provided as in this and judge imposing the sentence. v McCuller by Dissenting Opinion Kelly, J.

(2) sentence, imposing judge or at time of Before by examining oath, shall ascertain the defendant under or otherwise, by and other evidence as can be obtained tending briefly to indicate causes of defendant’s conduct, criminal character or which facts and other facts appear pertinent judge to be in the case the shall cause upon to be entered the minutes of the court. statute,

Under this in a case falling into an exception, a court must mini- initially determine mum sentence. That sentence must be within the by set the sentencing guidelines unless the judge finds that substantial and reasons exist compelling 769.34(2) (3). range. exceed the MCL and Typically, Michigan, the maximum sentence is by established stat- instance, ute. For MCL 750.84 provides maxi- mum sentence for assault with intent to do great bodily harm years $5,000. less than murder is ten or a fine of convictions, Unless a defendant has past court cannot exceed the maximum provided by sentence statute.7

But MCL 769.8 makes clear that it is only general rule. It makes this apparent by noting that exceptions They do exist. are indicated the phrases “except as provided otherwise chapter” “except as 769.8(1). in this provided chapter.” MCL major One to MCL exception 769.8 is determinate sentence.8 Determinate specific, sentences are fixed sen- tences, sentences, in contrast to indeterminate which fall range. Legislature within a sets these fixed instance, For sentences statute. a first offense of carrying possessing or a firearm committing when above, 769.10, 769.11, As noted MCL and 769.12 set new maximum sentences habitual for offenders. length “[a] A “determinate sentence” is fixed of time (7th unspecified Dictionary rather than for an duration.” Black’s Law ed), p 1367. 479 Mich 672 Dissenting Opinion by J. (felony-firearm) carries a felony to commit

attempting A second mandatory years. determinate sentence two five-year sen- felony-firearm requires conviction of 750.227b(l). crimes re- tence. MCL Given that these sentences, determinate do not quire guidelines Instead, they exceptions to them. fall into the apply 769.8(1). in noted MCL

Another to the focus on minimum major exception falling sentences MCL 769.8 involves sentences an It is this exception intermediate sanction cell. centerpiece Michigan’s of this case. Under sentenc- guidelines, intermediate sanction cells shift ing court’s attention from minimum sentences to maximum sentences.

III. INTERMEDIATE SANCTION CELLS 769.34(4) (a) MCL creates intermediate sanction cells. provides: It upper

If limit of the recommended minimum sen- range tence for a defendant determined under the sentenc- ing guidelines chapter set forth in XVII is 18 months or less, impose the court shall an intermediate sanction unless compelling the court states on the record a substantial and jurisdiction reason to sentence the individual to the department may of corrections. An intermediate sanction jail upper include a term not exceed that does limit of months, the recommended minimum sentence or 12 whichever is less. 769.31(b)

MCL further defines “intermediate sanc- tion”: probation any

“Intermediate sanction” means or sanc- tion, imprisonment prison other than in a state or state reformatory, may lawfully imposed. be Intermediate includes, to, sanction but is not limited 1 or more of the following: People v McCuller Dissenting Opinion by Kelly,

(i) Inpatient outpatient drug participa- treatment or drug chapter court under tion treatment 10A the 1961,1961 judicature act of PA MCL 600.1060 revised to 600.1082.

(ii) any probation required Probation with conditions or authorized law.

(iii) probation. Residential (iu) jail. Probation with

(y) special Probation with alternative incarceration. (yi) Mental health treatment.

(vii) counseling. Mental health or substance abuse (viii) Jail.

(ix) Jail with work or school release.

(x) Jail, day parole with or without authorization for 60, under 1962 PA 801.251 to 801.258. MCL (xi) Participation community program. in a corrections (xii) Community service.

(xiii) Payment of a fíne.

(xiv) House arrest.

(xv) monitoring. Electronic reads together, When one these statutes it becomes intermediate sanction cells apparent highly have unusual role in If a defen- Michigan’s sentencing scheme. minimum dant’s sentence falls an intermediate cell, guidelines longer sanction are no concerned with Instead, minimum under MCL the defendant’s sentence. 769.34(4)(a), the to guidelines set the maximum sentence may which sentence the That maxi- defendant. jail upper mum is a term of either limit of the guidelines range for the recommended minimum sentence months, or 12 is shorter. The stat- guidelines whichever utes not a court to a defendant permit do sentence guidelines his or her score falls within an prison when 479 MICH Dissenting Opinion by required impose intermediate sanction cell. The court is less, maximum term of 12 unless it can state months longer substantial and reasons for a sentence. compelling 769.34(4)(a). MCL case, if had the trial court not entered a score for 1,2,

OVs defendant’s OV score have dropped would to zero. This have moved him would from B-IV cell to the B-I cell. The B-I cell a minimum provides range for a second-offense habitual offender of to 11 zero jail. 777.21(3)(a); months in MCL MCL Because 777.65. months, its limit is less than 18 B-I cell upper is an intermediate sanction cell. maximum sen- Defendant’s jail. tence would have been 11 months MCL 769.34(4)(a).

But the trial court did impose this maximum By fact, making judicial findings sentence. judge moved defendant out of the intermediate sanc- tion cell and into a straddle cell. judge then sentenced defendant to a higher maximum sentence possible than would have had the been sentence been only based on the verdict and the defendant’s history. criminal Because the judge increased defen- by making fact, dant’s OV score his findings own findings by jury, not made the defendant’s Sixth right violated his Amendment to a trial by jury. And it contradicted the Supreme United States Blakely, in holding Court’s which was most recently reinforced by Cunningham.

IV THE UNITED STATES SUPREME COURT’S PRECEDENT MAXIMUMS” REGARDING “STATUTORY Pennsylvania

a. McMillan u There is precedent considerable from the United Supreme States Court regarding judicial modification of People v McCuller Opinion by Dissenting by found after using judge sentences facts are referred to as These facts judge-determined verdict. Pennsylvania,9 factors.” In McMillan v “sentencing constitutionality Pennsylvania’s Court addressed act, sentencing minimum 42 Pa Cons Stat mandatory minimum mandatory act for a provided 9712. That sentencing judge if the sentence for certain felonies evidence, that found, of the preponderance “ ‘visibly possessed during a firearm’ McMillan, 477 US at 81. commission of the offense.” Court found that Supreme The United States a mere visible-possession requirement was burden of change prosecution’s factor that did not at 86-88. It guilt beyond a reasonable doubt. Id. proving There another McMillan: are important point made may go limitations on how far a state constitutional reducing prove the factual needed to a criminal support beyond paid offense a reasonable doubt. The Court to the fact that 42 Pa Cons Stat 9712 special attention penalty did not increase the maximum faced defendant: penalty

Section 9712 neither alters the maximum separate calling the crime committed nor creates a offense separate penalty; operates solely it to limit for a selecting penalty discretion in within court’s finding range already special available to it without the [McMillan, possession of visible of a firearm. 477 US at 87-88.]

B. JONES v UNITED STATES sentencing fac- Court next discussed States, 227; v United 526 US 119 S Ct tors Jones (1999). 1215; L Ed 2d It addressed whether the (1986). 79; 2411; 91 L Ed 2d 67 477 US 106 S Ct 708 Mich Dissenting Opinion by Kelly, J.

federal carjacking statute10 constituted three separate crimes or one crime with factors that in- creased the maximum penalty. Id. at 229. The Court reading concluded that a fair required statute it to find three separate offenses. But it on went to discuss alternative requiring reasons for the state must to a all prove the “elements” of a beyond crime a reasonable doubt. They involve constitutional law. The quickly Court’s focus centered on McMillan’s discus- sion of an increase the maximum penalty: carjacking very terms statute illustrate well

what bodily injury is at stake. If serious merely were 2119(2)] sentencing factor (increasing [18 under USC penalty by thirds, years), authorized two to 25 then death presumably nothing would be more than a (3) (increasing factor under subsection life). penalty range potential If penalty might years rise from 15 to life nonjury determination, on a role would corre- spondingly significance usually shrink from the carried guilt determinations importance to the relative of low- gatekeeping: cases, level jury finding in some of fact necessary 15-year for maximum merely sentence would open judicial finding the door to a sufficient for impris- life [Id. onment. 243-244.] time, provided: 18 USC 2119. At the the statute

Whoever, possessing a firearm as defined in section 921 of this title, transported, takes a shipped, motor vehicle that has been or foreign person received interstate or commerce from the or presence by intimidation, of another force and violence or or attempts so, to do shall— (1) imprisoned be fined under this title or not more than 15 years, both, or (2) (as bodily injury if serious defined in section 1365 of this title) results, imprisoned be fined under this title or not more than years, both, (3) results, imprisoned if death be fined under this title or any years up life, number of or both. v McCuller Dissenting Opinion by Kelly, jury greatly role of the troubled The reduction of the fact, In it found the reduction Court. Supreme by the United offered protections inconsistent with from the It indicated that removal States Constitution. determining necessary the facts jury of control over sentencing range genuine would raise statutory Id. at 248. The Court stated Sixth Amendment issue. construction any statutory doubt on the issue of that Sixth avoiding resolved in favor of such must be Id. at 251. questions. Amendment APPRENDI v JERSEY C. NEW year, important The next Court took an Supreme factors, in sentencing forward in its discussion of step 466; 2348; v 120 S Ct Apprendi Jersey, New US (2000). L Ed 2d 435 dealt with a Apprendi Jersey New hate-crime law. The statute allowed a defendant’s maxi- years mum sentence to be increased 10 to 20 if the from “ sentencing court found that the defendant ‘acted with purpose to intimidate an individual group race, color, because of gender, handicap, individuals ” religion, sexual orientation or Id. at 468- ethnicity.’ 2C:44-3(e). Ann quoting sentencing NJ Stat court could make the finding using preponderance of Apprendi, analysis, evidence. 530 US at 468. its Court on It con- specifically built Jones. cluded that the Fourteenth Amendment the United States commanded the same answer for Constitution Fifth Sixth state statutes as the amendments Id. at 476. required Jones. legislature change

The Court found that a could not simply by labeling of a crime some of them the elements “sentencing factors.” Such actions run afoul of due Sixth Amendment process and violate a defendant’s The Court stated that a protections. 479 Mich 672 Dissenting Opinion by

could exercise its judicial discretion on fac- only long tors as as the sentence fell within the imposed appropriate statutory limits. Id. at 481-482. The Court expressed concern that a defendant not be deprived his or her liberty stigmatized by or otherwise a convic- tion and sentence not authorized the jury’s verdict. proper protection, For the Court required proce- practices dural adhere to the basic principles undergird- ing requirement prosecution that the all facts prove constituting statutory beyond offense a reasonable Id. doubt. at 483-484. The Court reasoned that increas- ing punishment beyond maximum vio- lated those principles: punishment beyond

If a provided defendant faces by statute when an offense committed under certain others, circumstances but not it is obvious that both the liberty stigma attaching loss of and the to the offense are heightened; necessarily it follows that the defendant put should not—at the proof moment the State is of deprived have, those protections circumstances—be point, unquestionably until that {Id. attached. 484.] at In reiterating its and reasoning holding in Apprendi, the Supreme Court used the phrase “statutory maxi- mum”: sum, area, our reexamination of our cases in this and history upon they rely,

of the opinion which confirms the expressed that we in prior Jones. Other than the fact of a conviction, any penalty fact that increases the for a crime beyond prescribed statutory maximum must be sub- jury, proved beyond mitted to a a reasonable doubt. exception, With that we endorse the statement of the rule concurring set opinions forth in the “[I]t in that case: legislature jury unconstitutional a to remove from the prescribed range assessment of facts that increase the penalties to which a exposed. criminal defendant is It is equally clear that such facts must proof be established v McCuller Dissenting Opinion by 490, Jones, quoting beyond [Id. reasonable doubt.” at (Stevens, J., concurring).] US 252-253 at

D. RING v ARIZONA later, Court renewed its years Supreme Two Arizona, Ring máximums” in v “statutory discussion of (2002). 584; 2428; L Ed 2d 556 536 US S Ct murder first-degree That case dealt with Arizona’s statute statute. The for violation punishment life or death. The statute referred to imprisonment was hear- required separate another statute charged determining The with at the ing. judge was (sentencing circumstances fac- hearing specific whether tors) existed, imposition penalty. of the death Id. allowing at Court built on its decisions 592-593. conclude that a sentence of death Apprendi Jones and rights Amendment under violated a defendant’s Sixth these statutes: said, form, question, but dispositive we “is one not of If defendant’s

of effect.” a State makes an increase fact, punishment contingent finding of a authorized on the it —must be found that fact —no matter how State labels may by jury beyond A defendant not be a reasonable doubt. penalty exceeding “expose[d]... to a the maximum he would punished according if to the facts reflected in the receive 602, quoting Apprendi, 530 US at [Id. verdict alone.” (citations omitted; emphasis Apprendi) reasoning, of this the Court found that the On the basis despite life in “statutory prison, maximum” sentence was of a sentence imposition that the statute allowed fact because, in order to the death impose of death. This is make in addition judge findings had to factual penalty, reflected verdict. those distinguish Ap- the case from nothing Court found It reached this conclu- 536 US 604-606. prendi. Ring, 479 Mich 672 Dissenting Opinion Kelly, J. sion because Arizona’s enumerated aggravating factors were the functional equivalent greater of an element of a Therefore, offense. the Sixth Amendment required that a jury find beyond those factors a reasonable doubt. Id. at 609.

E. BLAKELYv WASHINGTON The Supreme Court took its biggest step defining the expression “statutory maximum” Blakely. case, the defendant pleaded guilty of second-degree kidnapping involving domestic violence and the use of a firearm. The standard sentencing range for the offense years was four and one month to four years and five months in prison. Blakely, 542 US at 298-299. But under Washington State’s sentencing guidelines, a court impose could a sentence above the standard range if it found substantial and compelling reasons to justify an “exceptional sentence.” Id. at 299. The defendant had admitted no relevant facts other than having com mitted acts in violation of the elements of the crime. Id. But imposed an exceptional sen tence of years11 after hearing the complainant’s 7Va version of the kidnapping. The sentencing court based departure this on finding the defendant had exhibited cruelty. deliberate This was a statutorily ground enumerated for departure in domestic violence cases in Washington. Id. at 300.

Washington argued system that its did not present a Sixth Amendment problem because state law provided an absolute maximum years’ sentence of ten imprison- ment and in no instance could an exceptional sentence exceed length. Id. at 303. Washington contended 11Washington’s sentencing provided scheme for determinate sen Blakely, tences. 542 US at 308. People v McCuller Dissenting Opinion by “statutory the true maximum” for years ten was of Sixth Amendment review. purposes rejected argument. Court In- Supreme But the “statutory maximum” as the maxi- stead, it defined the imposed judicial mum sentence that can be without fact-finding: clear, however, “statutory precedents

Our make that the Apprendi purposes is the maximum sen- maximum” for judge may impose solely tence a on the basis the facts jury by in the verdict or admitted reflected defendant. words, “statutory maximum” is not the other relevant judge may impose finding maximum sentence a after facts, may impose additional but the maximum he without judge any findings. punishment inflicts additional When allow, jury verdict alone does not has not found all the facts “which the law makes essential to the punishment,” judge proper authority. and the exceeds his omitted).] (emphasis original; [Id. at 303-304 citations Hence, purposes, for Sixth Amendment the maximum years. years sentence was not ten It was four and five months. This was because that was the maxi- solely mum the court could have on the basis of imposed the facts the defendant admitted pleading guilty. when Id. 304. The Court concluded that its only properly determination was the one that would in- people’s judiciary effectuate the control of the as of the United States Constitu- by tended the Framers tion:

Ultimately, turn our decision cannot on whether jury efficiency degree impairs what or fairness trial justice. certainly argue of criminal One can that both these entirely leaving justice be values would better served world, professionals; many of the the hands of nations traditions, just particularly following civil-law take those douht, however, that course. There is not one shred justice: paradigm for criminal not the about Framers’ Mich 672 Dissenting Opinion by Kelly, J. perfection, civil-law ideal administrative but power accomplished by common-law ideal of limited state authority judge jury. strict division of between As held, Apprendi every right defendant has the to insist that prosecutor prove legally to a all facts essential to (emphasis punishment. original).] [Id. at 313

F. UNITED v STATES BOOKER Supreme The Court next discussed máxi- “statutory “sentencing mums” and in factors” United States v Booker, 220; 738; L 543 US 125 S Ct 160 Ed 2d 621 (2005). case, In that the Court addressed the applica- bility of the line preceding of cases to the federal guidelines. prosecution The charged possession Booker12 with with intent to distribute at least grams 50 of cocaine base. The federal statute for provided this crime a maximum sentence of life in prison. But because of Booker’s criminal and history quantity of cocaine jury base that found was involved, the guidelines required maximum sentence of 21 and 10 years months’ imprisonment. Instead of imposing sentence, the trial court held a hearing during which it made additional findings fact. It concluded that possessed Booker had another 566 grams of cocaine base and that he had obstructed justice. Accordingly, using preponderance of the evi- standard, dence the court increased his maximum sen- tence to years prison. 30 Id. at 227. Jones,

After a discussion of Apprendi, and Ring, Blakely, Supreme Court found the guide- federal lines indistinguishable from the Washington guidelines that were at issue in Blakely: 12 defendant, Booker involved consolidated cases that included another brevity, only Fanfan. In the interest of I will discuss defendant Booker. People v McCuller Dissenting Opinion by Kelly, sentence, however, months,

Booker’s actual was 360 years longer sup- almost than the Guidelines sentence, ported jury verdict alone. To reach this judge beyond jury: found those namely, facts found grams possessed that Booker of crack addition to the grams bag. 92.5 in his duffel any never heard drug quantity, judge evidence of the additional by preponderance Thus, it just found true of the evidence. Blakely, jury’s as in “the verdict alone does not authorize judge acquires only authority upon the sentence. The finding some additional fact.” There no distinc- relevant imposed tion between pursuant the sentence to the Wash- Blakely ington imposed statutes in and the sentences pursuant Sentencing to the Federal Guidelines in these (citation [Id. quoting Blakely, cases. US at 305 omitted).] Again, Court found it irrelevant that a setting statute existed an absolute sentence. impose could the absolute every Instead, maximum sentence in case. cases like Booker’s, verdict supported only lower Booker, maximum sentence. US at 234-235. The Supreme Court concluded: Accordingly, holding we our Apprendi: Any reaffirm in (other conviction) prior a necessary

fact than which is support exceeding a by the maximum authorized plea by guilty the facts established jury of or a verdict proved must be admitted the defendant or to a beyond [Id. 244.] a reasonable doubt.

On basis, the Supreme Court invalidated the statu- tory provisions that made the sentencing guide- federal lines Id. mandatory. at 226-227.

G. CUNNINGHAMv CALIFORNIA in “sentencing factor”/“statutory The final link the maximum” is Cunningham. Cunningham chain was [July- Mich Dissenting Opinion under of a child “continuous sexual abuse of

convicted Ct Califor- Cunningham, 127 S at 860. age of 14.” the (DSL) a three- sentencing created determinate law nia’s system for most crimes. The statute sentencing tiered lower, provided defendant’s offense defining a Code 1170 middle, sentence. Cal Penal upper and an term, the middle impose the trial court mandated that mitigation or ex- aggravation in unless circumstances under a findings The made factual isted. trial court regarding of evidence standard the preponderance existed. Cunning- circumstances aggravating whether ham, 127 Ct at 861-863. S case, provided the DSL sen- Cunningham’s 12, sentencing of or 16 court found years.

tences of the evidence the existence one by preponderance It aggravating six factors. found mitigating factor and outweighed mitigating the aggravating that the factors Id. at 860-861. 16-year imposed factor and sentence. Cunningham, United preceding in cases As fact- judicial Court found that Supreme States maximum sentence violated finding that increased the the Sixth Amendment. arguments contrary, to the

Despite California’s nothing distinguish found the DSL Court Blakely Booker: and sentencing that occurred from DSL, context, we note in this resembles California’s ways Washing- pre-Booker the same federal sentencing system key Penal Code ton’s did: California provision court “shall order states that “circumstances in imposition of the middle term” absent crime,” mitigation aggravation [Cal Code] Penal or 1170(b) added), any upper move to the (emphasis justified by must be concise statement lower term “a rests, departure [Cal R]Ct ultimate on which the facts” 4.420(e) added). at 866 n (emphasis [Cunnigham, S Ct (emphasis original).] 717 v McCuller Dissenting Opinion by J. Kelly, Quite simply, the Supreme Court viewed Cunning- ham as a continuation its precedent. earlier It broke time, ground. no new But Supreme for the first the Court often-repeated holding characterized its as a bright-line rule: DSL, upper may

Under California’s an term sentence be only imposed judge aggravating when the trial finds an charged offense, circumstance. An element of the essential guilt, to a determination of or admitted in a defen- guilty plea, qualify dant’s does not as such a circumstance. Instead, aggravating depend on circumstances found facts discretely solely by judge. Blakely, and the In accord with therefore, prescribed the middle term in California’s stat- utes, term, upper not the statutory the relevant maxi- (“The U.S., 303, mum. 542 at ‘statutory S.Ct. 2531 Apprendi purposes maximum’ for is the sen- maximum may judge impose tence a solely on the basis the facts in by verdict or admitted reflected defendant.” (emphasis original)). aggrava- Because circumstances tion judge, jury, only are found not the and need be by preponderance evidence, beyond established of the doubt, a reasonable Apprendi’s bright-line DSL violates Except prior conviction, rule: “any that increases for fact penalty beyond prescribed a crime jury, proved must be submitted to a beyond [Cunningham, reasonable doubt.” 127 S Ct quoting (citations Apprendi, omitted; empha- US at 490 second added).] sis Again, it was irrelevant that there existed the possibil- of an ity absolute maximum sentence of 16 years. The Supreme Court stressed that only concern was whether bright-line rule laid down Apprendi, Blakely, and Booker was violated. Court expressed frustration at inability the state’s or unwillingness to follow precedent. Id. at 869-870. The Court left to California how to eliminate constitu- tional violation. Id. at 871. MICH Dissenting Opinion a con- Court established summary, the Cunningham. McMillan to from precedent

sistent before and was the same rule established bright-line to remand And the Court’s decision Cunningham. after of this fact. light be this case must considered AND MICHIGAN’S THE BRIGHT-LINE RULE V GENERAL SENTENCING SCHEME earlier, sentencing guide- Michigan’s As discussed on a defendant’s minimum sen- generally focus lines history, defendant’s criminal average tence. The alone would allow facts, and the verdict admitted court, to fact- judicial without recourse provided by maximum sentence finding, impose to this, judicial fact-finding necessary Because of law. defendant within a typical OVs moves the score the And the predetermined range of sentences. possible not impli- Sixth Amendment are rights defendant’s cated, necessary support all the facts because beyond proved jury been to a maximum sentence have doubt. reasonable principles not situations do threaten basic

Such system. A country’s jury-driven legal undergirding he or she is knows what maximum sentence judicial fact-finding. Apprendi facing regardless when it judicial fact-finding acceptable is noted that penalty for a crime or does not increase the calling separate penalty. offense separate create “ limit fact-finding] solely to operates ‘[Judicial in selecting penalty discretion sentencing court’s already to it range available without within the 530 US at special findingfs]....’” Apprendi, McMillan, right 88. to a quoting US at Because the situations, in such by jury completely protected trial is Amendment concerns. are no Sixth there v McCuller Dissenting Opinion typical application Michigan of the readily more guidelines relates to McMillan. The score given merely to the OVs shifts a defendant’s sentence within the minimum sentence under guide- lines. It does not increase the defendant’s maximum sentence. A history defendant whose criminal place verdict do him an or her in intermediate sanction cell always potential knows what the maxi- mum will be: it the maximum penalty All prescribed by Michigan changes, law. of this how- ever, when an intermediate sanction cell is involved.

VI. THE BRIGHT-LINE RULE AND MICHIGAN’S INTERMEDIATE SANCTION CELLS When a is entitled a defendant to sentence that is range wdthin the in an specified intermediate sanction 769.34(4) (a) cell, MCL sets his her or maximum sen- tence. That jail maximum sentence is a term of either upper limit the recommended minimum sentence months, or whichever is shorter. Under the guidelines, the must impose this maximum sen- tence, unless it can state substantial and compelling reasons increase the sentence. Therefore, the process no longer concerned with the defendant’s minimum Supreme rule, sentence. Under the bright-line Court’s this alteration in focus changes the defendant’s “statu- tory maximum.”

The new maximum sentence set under MCL 769.34(4) (a) becomes defendant’s maxi- “statutory mum.” This is true it because is the longest sentence the court can give a defendant on solely the basis of the defendant’s criminal record and admissions and the Cunningham, 868; verdict. Ct Booker, 127 S at 244; Blakely, 301; 543 US at 542 US at Apprendi, 530 490; Jones, US at if 526 US at And 251-252. the court 479 MICH672 Dissenting by Opinion moving higher sentence a fact findings makes (1) either a maximum, faces statutory (2) stigma the increased charge criminal different specifically This is what sentence. an extended US at sought Apprendi, to avoid. Supreme Court 484. fact-finding that shifts defendant’s

Any judicial statutory maximum is unconstitu- above the A court progeny. Jones and its tional and violates the OVs or fact-finding by scoring engages judicial depart compelling and reasons to stating substantial range. sentencing guidelines from the findings by preponderance of fact court makes its own findings separate These and distinct of the evidence. are establishing the elements of the findings from the crime, jury beyond be to a a reason- proved which must sentencing in able doubt. Such mirrors the Cunningham, in which the Court held: aggravation found

Because circumstances are jury, only judge, not need be established and evidence, beyond preponderance of the a reasonable doubt,... bright-line Ex- Apprendi’s rule: [this] violates conviction, cept prior “any for a fact that increases beyond penalty prescribed for a maxi- crime jury, beyond proved must to a mum be submitted [Cunningham, quoting 127 S doubt.” Ct at reasonable added).] (emphasis Apprendi, 530 US fact-finding in- any judicial As Cunningham, a defendant’s maximum sentence crosses the creases so, bright line. Supreme doing Court’s And it violates the constitution. fully Michigan’s sentencing system,

To it analyze must determined is entitled to an intermediate be who bright-line cell sentence. The Court’s sanction for question. “Except rule to this a provides the answer People v McCuller Dissenting Opinion by conviction, fact prior ‘any penalty that increases the beyond a prescribed crime must be submitted a jury, proved and beyond a ” reasonable Cunningham, doubt.’ 127 CtS at quoting Apprendi, Hence, 530 US at 490. a defendant is (1) entitled to a sentence based on solely the defen- (2) dant’s prior convictions and any facts that he or she and any admitted facts that specifically by were found jury. requires that, This conclusion in order to determine sentence, defendant’s appropriate maximum sen- tencing court only should score They PRVs. reflect prior the defendant’s convictions and relations to the justice system. criminal The sentencing court is free to score they these because fall under one excep- of the tions bright-line noted rule: the prior defendant’s convictions.

Scoring OVs, hand, on the other requires factual determinations that are made the trial court using a preponderance of judi- the evidence standard. They are cial only determinations that occur after the verdict. Such findings fact fall directly line with the Cunningham decision. “Because [OVs] are found by the judge, jury, only not the and need be established by a preponderance evidence, of the beyond a reason- doubt,... able [scoring them] violates Apprendi’s bright-line rule[.]” Cunningham, 127 S Ct at 868.13The majority ignoring language accuses me of of MCL 769.34(4)(a). opinion Even a casual review this will show majority why require accusation untrue. The asks I would not the OVs along simple: be scored with the PRVs. The answer is The Sixth (1) solely Amendment entitles to a sentence based on (2) convictions, prior admitted, any defendant’s facts he she has (3) any specifically jury. Cunningham, facts that were found 127 S statutory language requirements Ct 868. must bow to the of the United States Constitution. Mich 672 Dissenting Opinion J. is an OV when should score

only time or score justifying admitted the fact defendant doubt. beyond reasonable its existence jury found cases, and did not occur in rare it only This occurs this case. rule, defendant is Michigan bright-line

Under a sentence when an sanction as to intermediate entitled On such a sentence. supports or PRV level alone his her hand, high is to whose PRV level too the other a defendant is not in an intermediate sanction cell him or her place sentence. The sanction cell entitled to an intermediate general falls under latter defendant absolute maximum sentence subject to the scheme case, free to make the the trial court is set law. necessary fact to score OVs. findings of judicial DEFENDANT’S SENTENCE HOW TRIAL COURT CALCULATED A. THE Defen- us demonstrates distinction. The case before a score necessary facts to attribute dant did not admit the 1, 2, specific findings And the made no to OVs and 3. Thus, sentence these OVs. defendant’s regarding of fact of the fact-finding, on in violation judicial was based His have been based bright-line rule. sentence should was 2 solely his PRV level. Defendant’s PRV level on B-I The B-I cell which him cell. points, placed of zero to 11 months a minimum sentence provides 777.65; offender. MCL MCL for a second-offense habitual 777.21(3)(a). cell. MCL This is an intermediate sanction 769.34(4)(a). to Therefore, defendant was entitled an earlier, cell sentence. As discussed intermediate sanction be months in supposed maximum was his sentence a maximum properly impose The court could not jail. using 11 months without facts that exceeding proved were not to a had not admitted a reasonable doubt. jury beyond v McCuller Dissenting Opinion by Kelly, But made judge findings trial such fact 1, 2, judicial score OVs and 3. in- findings These they creased defendant’s sentence because him into a straddle point, moved cell. At that he was longer an no entitled to intermediate sanction cell would at 11 capped sentence that be months in jail. judge’s findings Because the of fact increased defen- sentence, dant’s maximum they violated defendant’s Apprendi. Defendant Sixth Amendment under rights suffered greater stigma an increased through sen- than stigma tence he would have faced had his solely sentence been based on his PRV level. This in- stigma punishment creased undermine the basic concepts of right by jury to a trial and defeat the intent of the Framers to a publicly judiciary. ensure controlled Apprendi, 530 US at 483-484. in

Scoring OVs this case was the functional equivalent convicting defendant of a different crimi- nal offense. he had Although been convicted assault murder, with intent great bodily to do harm less than the trial court sentenced defendant for an assault with (1) bodily great intent do harm less than murder in (2) which the victim was touched weapon,14 which the possessed defendant a potentially lethal (3) weapon,15 and in which the victim suffered life threatening permanent incapacitating injury.16 Just Ring, as in the Sixth requires Amendment find facts that enhanced defendant’s sentence be- Ring, yond a reasonable doubt. 536 US at 609. Because occur, did not defendant’s Sixth Amendment rights were violated the sentence imposed. 777.31(l)(c), finding This was the under OV 1. MCL now MCL

777.31(l)(d). 777.32(l)(d), finding This was the OV 2. MCL under now MCL 777.32(l)(e). 777.33(l)(c). finding This was the under OV 3. MCL Mich 672 Dissenting Opinion by MAY THE OVS BE SCORED?

B. AT WHAT POINT argue that no on MCL 777.21 to majority The relies until Michigan a sentence is entitled to defendant argu- OVs. This sentencing court scores the after Blakely line light of the ment withers when examined facts, Any is recited: holding easily there of cases. convictions, that increase a defendant’s past from aside by the must either be admitted maximum sentence jury beyond to a reasonable proved defendant or Booker, 543 US at 244. doubt. this central tenet. majority directly applying avoids would or could have

Its insistence that applica- sentence under the traditional longer received a A defendant sentencing scheme is irrelevant. tion of the by his or entitled to the maximum sentence authorized admitted, convictions, he or she and the her the facts past verdict. See id. A defen- by the facts established be based on facts that the properly dant’s sentence cannot the evidence using preponderance found judge later Hence, if facts used to judge the determines the standard. OVs, it is deter- the OVs must be scored after score into an intermediate mined whether a defendant falls cell. sanction on MCL 777.21 does not obviate majority’s

The reliance tenet. This statute is similar to the statute this central There, separate to conduct a Ring. judge was directed specified sentencing hearing to determine the existence impose decide whether to circumstances order to Ring, life 536 US at 592. penalty imprisonment. death impose longer it is possible fact A sentencing scheme is not relevant. under the is entitled to a sentence solely jury’s based on the verdict history. defendant’s admissions and criminal and the explained: Court v McCuller Dissenting Opinion by Kelly, J. capital system In an effort to reconcile its with Apprendi, interpreted hy the Sixth Amendment as Arizona Apprendi majority’s portrayal first restates the of Arizona’s system: Ring murder, first-degree was convicted of for which specifies imprisonment” only Arizona law “death or life as the 13-1105(0 sentencing options, § see Ariz. Rev. Stat. Ann. (West 2001); Ring was therefore sentenced within the punishment hy authorized verdict. See Brief for Apprendfs Respondent argument 9-19. This overlooks in- form, inquiry struction that “the relevant is one not but of U.S., effect, effect.” required finding at 494. In “the [of an aggravated expose[d] [Ring] greater circumstance] pun- to a hy jury’s guilty ishment than that authorized verdict.” [Id. 603-604.]

The same is true of the Michigan sentencing guidelines. that, It case, does not matter as in defendant’s there are two possible maximum sentences for the offense of which defendant was convicted. Defendant must receive verdict, maximum sentence that is supported by jury’s record, and his admissions alone.17 Id. But that prior his did Instead, not occur this case. given longer he was sentence than was authorized jury’s verdict.18 analysis applies majority’s The same to another of the conten tions: that a defendant is not entitled to an intermediate sanction until after the court decides whether substantial and compelling guidelines range. reasons exist to exceed the That the provides judicial fact-finding statute is irrelevant. The Sixth requires may Amendment that all that be considered are the defen admissions, record, prior dant’s his or her and the A verdict. defendant is entitled to whatever maximum sentence warrant these any judicial fact-finding without whatsoever. People Harper, 25; (2007), v Mich 614 n 739 NW2d 523 majority attempts distinguish Ring focusing on the fact that the only imposed judge death sentence in that case could be if a found aggravating Ring circumstances. It concludes that the situation in Michigan only distinct from the situation in because one maximum Michigan. explained above, simply sentence exists in As this is Here, why. just accurate. The instant case illuminates the reason as in (11 Ring, jail) defendant faced one maximum sentence months in until findings the court made [July- 479 MICH 672 Dissenting by Opinion the Sixth Amend- reason, violated For that the sentence ment. Id. at 609. NAME MAXIMUM BY ANY OTHER

VII. A v majority strives to People Harper,19 and in Here the maximum sentence the reader convince 769.34(4) (a) cells is for intermediate sanction MCL sets this conclu- a minimum sentence. To arrive at really might what be mis- sion, through it takes the reader statutory language. But game taken for shell they statutes as are written pertinent of the reading majority’s deci- support the central undermines despite the Su- sion to affirm defendant’s sentence 769.34(4)(a) example, For MCL preme Court’s remand. provides: upper minimum sen-

If the limit of the recommended defendant determined under the sentenc- tence for a chapter 18 months or ing guidelines set forth in XVII is less, unless impose the court shall an intermediate sanction compelling the court states on the record a substantial and jurisdiction sentence the individual to the reason to may department An intermediate sanction of corrections. jail upper term that does not exceed the limit include a sanction cell. Whether this of fact to move him out of an intermediate identifying “aggravating “scoring of the is called circumstances” OVs,” increased the the fact remains the same: trial court by by making findings supported jury’s not defendant’s verdict, admissions, past the defendant’s and the defendant’s record. doing, Blakely’s bright-line it rule. In so violated only argument maximum sentence is the that there is one Ring. argument unsuccessfully Arizona in Just as the made argument Ring, an absolute failed in it must fail in this case. That judicial fact-finding exists is irrelevant if maximum sentence prior supported or the verdict his admissions or conviction receiving prevented a lower from sentence. at 624. Id. People v McCuller 727 Dissenting Opinion by Kelly, J. recommended, months, sentence or 12 minimum is whichever less. [Emphasis added.] ambiguous. The of this is not It language statute that the an interme- impose mandates court falls into an appropri- diate sanction when a defendant cell, judicial findings ate unless the court makes of fact 769.34(4)(a). de- departure. MCL It also support fines the outer limit of an intermediate sanction: jail. highest months in Because this is the sentence a face, it may is maximum sentence. Without judicial fact-finding, judge the trial is not authorized to much impose so as a 13-month sentence.20 that, the majority considering Even seems to concede 769.34(4)(a), MCL only language months is it maximum sentence. But believes that this con- 769.34(4)(a) changes clusion when MCL in viewed light majority of other statutes. The first 769.8(1), relies on MCL which provides: person When a is convicted for the first time for com- mitting felony punishment prescribed by law for may imprisonment prison, that offense be in a state imposing fix sentence shall not a definite term of term, except as imprisonment, but shall fix a minimum provided chapter. otherwise in this penalty The maximum provided by law shall be the maximum sentence in all cases except provided chapter as in this and shall be stated judge imposing [Emphasis in added.] the sentence. The majority focuses on the maxi- language “[t]he penalty provided by mum shall law be majority Michigan claims that a defendant is liable to serve the Harper, every absolute maximum sentence in case. See 479 Mich at 614 769.34(4)(a) fallacy point. Michigan n 25. MCL shows the of this Some higher jail, though defendants face no maximum than 12 months even second, higher statutory maximum sentence exists for their crime. This destroys majority’s premise Michigan only undeniable fact has one maximum sentence for each crime. 479 Mich Dissenting Opinion by inappli- ...But it dismisses as all cases by “except is modified as phrase cable the fact that Legislature in this .. .” The twice provided chapter. general are to the exceptions makes clear that there 769.8(1). By treating in the statute. MCL rule stated irrelevant, majority ignores these clauses as lan- Legislature chosen and rewrites the stat- guage ute. majority concludes that the clauses must not cells. It that the

refer to intermediate sanction reasons intermediate cells were provisions creating sanction 769.8(1) language enacted after the contained MCL only preexisting and that the clauses must refer to exceptions. only defy logic, unsup- Not does this it is ported by any authority whatsoever.

The rule of majority’s statutory new construction nearly would render it to read statutes impossible together. reading Someone two that to statutes seem subject obliged discuss the same would be to review the date of enactment each statute to see which came first. If in the language the earlier statute made the two another, relate one be language to that would have to Hence, ignored. any attempt to read to- two statutes gether accompanied by history must be Such lesson. requirement an odd seems ill-advised. only majority’s

Not does new rule create confu- sion, majority’s supposed “plain it contradicts the lan- The guage” approach interpretation. to ma- 769.8(1) effectively jority rewrites MCL to read: person When a is convicted for the first time for com- mitting felony punishment prescribed and the law may imprisonment prison, that offense be in a state imposing not fix a definite term court sentence shall term, except imprisonment, but shall fix a minimum as (but provided chapter only exception in otherwise this this if v McCuller Opinion by Dissenting Kelly, J. statute). penalty provided by predates The maximum except be maximum sentence in all cases as law shall (but chapter exception that was provided in this not if 1927) judge be in enacted and shall stated after imposing the sentence. repeatedly Court has admonished that This something Legis- must not read into a statute that the Detroit, lature did not there. AFSCME v 468 Mich put (2003).21 388, 412; majority 662 NW2d But the has just done that in this case. Does the now majority rule of statutory interpretation? abandon this classic that, 769.8(1), under MCL majority notes there in fix are cases which court will not minimum sentence and which the absolute maxi- mum It apply. provi- sentence will notes that other chapter sions of the Code of Criminal Procedure 769.8(1) MCL appears exceptions which state the MCL is in general chapter rule. 769.34 that of the 769.34(4)(a) code. And MCL provides the sentenc- ing court will set the maximum sentence rather than involving the minimum in cases intermediate sanction Therefore, indicating cells. far from intermediate sentences, sanction cells set minimum when read to- gether, these statutes demonstrate a intent legislative that intermediate sanction cells serve as an exception intended general Legislature rule. intermediate sanction cells to dictate a maximum sentence. MCL 769.8(1). 769.34(4)(a); MCL principle repeated by comprising has often been those This 245, 259; majority Williams, People v here. See 475 Mich 716 NW2d 208 572, (2006), Bhan, 577; (2004), Halloran v 470 Mich 683 NW2d 129 395; (2003), 390, People Phillips, v 469 Mich 666 NW2d 657 v 79; Davis, 77, (2003), Liquid Disposal, 468 Mich 658 NW2d 800 Lesner v Inc, (2002), 101; Mecosta Co 466 Mich 643 NW2d 553 and Roberts v (2002). 57, 63; Hosp, Gen 466 Mich 642 NW2d 663 479 MICH672

Dissenting Opinion by 769.9, pro- also turns to MCL which majority The vides:

(1) provisions chapter of this relative to indetermi- apply person nate sentences shall not to a convicted for the only punishment commission of an for which the offense by prescribed imprisonment law is for life.

(2) In all cases where the maximum sentence in the may imprisonment any discretion of the court be for life or years, may impose number or term of the court a sentence may impose any years. for life or a sentence for term of If by imposed any years, the sentence the court is for term of the court fix shall both the minimum and the maximum of years thereof, that sentence in terms of or fraction imposed sentences so shall be considered indeterminate impose sentences. The court shall not a sentence in which penalty imprisonment life with a mini- years mum for a term of included the same sentence. (3) involving major In cases controlled substance impose offense for which the court is directed law to specified sentence which cannot be less than a term of years specified years, nor more than a term of the court in imposing length the sentence shall fix the of both the specified minimum and maximum sentence within those limits, thereof, years in terms of or fraction and the imposed sentence so shall he considered an indeterminate sentence. that, majority argues because this con- statute nothing

tains indicate the sanctions are deter- minate, supports it reading intermediate sanction cell sentences as minimum sentences. But a reference to MCL fallacy reasoning. 769.9 shows the of this MCL 769.9(1) ability limits the courts’ to impose intermedi- ate sanction cell sentences. It provides intermedi- may ate sanctions not be used for offenses for which only punishment “the law is prescribed imprison- limitation, ment for life.” It makes no other and no should other be read into it. People v McCuller Dissenting Opinion by majority claims that nowhere does the Legisla- exception

ture state that intermediate sanctions are an to the scheme of indeterminate Michigan sentencing. But it is more accurate to assert that nowhere does the Legislature indicate this in the statutes except creating 769.34(4)(a) intermediate sanctions. MCL makes clear the maximum possible, that absent substan- it, tial and to exceed is 12 in compelling reasons months 769.31(b) jail. MCL also specifically jail allows for sentences. The Legislature wrote determinate sen- into point tences these statutes. There would be no endeavoring clearly. to do it more And there was no anywhere need to do it else.

In the final analysis, point is irrelevant. What matters is not whether the statute establishes inter- mediate sanction cell sentences as indeterminate or determinate sentences. What is crucial is whether a defendant’s maximum sentence can be increased as a judicial fact-finding. Cunningham, result of 127 S Ct significant at 868. It is not that defendant’s sentence jail in this case zero to 11 simply was months case, months in In either the Sixth jail. Amendment by judicial would be violated in- fact-finding creases the maximum sentence above the 11-month mark. Id.

A. MICHIGAN’S MIXED DETERMINATE/INDETEEMINATE SENTENCING SCHEME argument It seems that the preceding component majority’s Michigan of the contention that has a true sentencing agree indeterminate scheme. I would an scheme in Michigan generally has indeterminate a defendant’s PRV level him or places cases which in an intermediate sanction her somewhere other than [July- 479 MICH672 Dissenting Opinion Kelly, J. cases in which the disagree respect But I with cell.22 máximums,23 sentencing possible scheme sets two exactly involving occurs in cases inter- which is what cases, sanction cells. such mediate resembles the determinate schemes scheme line Blakely Blakely in the of cases. itself discussed a discussion of the difference between indeter- contains and determinate schemes: minate argues that, Justice O’Connor because determinate sen- tencing involving judicial factfinding schemes entail less schemes, judicial than indeterminate the consti- discretion tutionality implies constitutionality of of the latter argument is levels. former. This flawed on a number of First, by the Sixth Amendment its terms is not a limitation judicial jury power, power. on but a reservation of It limits judicial only judicial power to the extent that the claimed power infringes province jury. on the of the Indeterminate discretion, sentencing judicial does not do so. It increases to sure, expense jury’s but of the be not at traditional finding imposition function of the facts essential to lawful penalty. of the Of course indeterminate schemes involve (like board) judicial factfinding, judge parole a that a may implicitly important rule on those facts he deems to But the exercise of his discretion. the facts do right pertain legal whether the defendant has a lesser sentence—and that makes all the difference insofar judicial impingement upon as the traditional role of the system says judge may is concerned. In a that punish burglary years, every burglar with 10 to 40 knows risking years jail. system punishes he is In a that burglary 10-year sentence, with a 30 added with another gun, burglar is for use of a who enters home unarmed 10-year no sentence—and entitled to more than reason bearing upon of the Sixth Amendment the facts that noted, exceptions respect As has been exist with to the crimes of felony-firearm. first-degree murder and (set possible years Here the two máximums were MCL 750.84 769.10) (set by guidelines). and MCL and 11 months People v McCuller Dissenting Opinion by Kelly, by jury. [Blakely,

entitlement must be found 542 US at omitted).] (emphasis original; 308-309 citation hand, reasoning applied Once this to the case at it apparent Michigan’s sentencing becomes scheme is not a traditional indeterminate It scheme. thing every would be one if second-offense habitual great offender convicted of assault with intent to do bodily harm less than murder the same 15-year faced Then, problem judicial maximum. no would arise if resulted in a sentence fact-finding within years. zero to 15 But is not the case. Some second-offense habitual offenders convicted of assault great bodily with intent to do harm less than murder face a maximum sentence of 11 months in jail. They are admissions, offenders whose criminal records and to- verdict, gether with the do not an OV support score.24These offenders are entitled to a sentence that is an intermediate sanction. Id. possible

Given that there are two maximum sen- tences for the offense in a defendant is en- question, by titled to whichever the defendant’s supported conviction, admissions, and criminal record alone. by “[A]nd reason of the Sixth Amendment the [addi- facts that entitlement bearing upon tional] must be Therefore, by found Id. at 309. if certain jury.” other necessary facts are to the defendant to the higher move sentence, they proved must be to the beyond a reasonable doubt. majority ignores

The this unusual nature of Michi- intermediate sanction cells gan’s compared as with sentencing traditional indeterminate scheme. Because sentences, intermediate sanction cells set maximum Michigan’s sentencing scheme is distinct from tra- Blakely’s “burglar equivalent These would be the of who enters a Blakely, home ....” 542 US at 309. unarmed 479 MICH 672 Dissenting Opinion For Sixth Amendment ditional indeterminate scheme. as a mixture determinate properly it is viewed purposes, because, sentencing and indeterminate schemes. This is in Blakely, as discussed a traditional indeterminate one maximum sentence. Id. only scheme can have Michigan’s 308-309. The fact that indeterminate scheme way is different in this mandates it be treated The differently. majority fails to honor this distinction. majority’s argument partially seems at least grounded in the argument Prosecuting raised Attorneys Association of and the Michigan Attorney They General in their amici curiae brief. assert Michigan’s system judi- involves too much cial to They discretion violate the Sixth Amendment. argue that the amount of discretion involved sentenc- ing Michigan system makes our to tradi- equivalent Cunningham specifically systems. tional indeterminate rejected this argument: [California Court’s] conclusion that

upper term, term, qualifies and not the middle as the relevant statutory maximum, First, rested on several considerations. that, given ample the court reasoned discretion afforded judges identify aggravating warranting upper trial facts an sentence, term the DSL represent legislative “does not proof effort to shift the (to particular proved facts from elements of a crime be to a (to

jury) by judge).... factors be decided Instead, sentencing judge it afforded the the discretion to decide, guidance statutes, with the of rules and whether history facts the case and the of the defendant justify higher system sentence. Such a dimin- does not Black, power jury.” [People ish traditional of the v 1238, 1256; 750; Rptr Cal 4th 29 Cal 3d 113 P3d 534 (2005)] (footnote omitted). Blakely, however, We cautioned in that broad discretion sentence, may support to decide what facts an enhanced to determine whether an enhanced sentence is warranted v McCuller Dissenting Opinion Kelly, case, sentencing system any particular does shield jury’s alone If the verdict of our decisions. from the force sentence, if, instead, judge must not authorize the does term, longer the Sixth impose the fact to find an additional U.S., Blakely, 542 not satisfied. requirement Amendment [Cunningham, S Ct at 305, 8, 124 2531. n. S.Ct. and 868-869.] not matter. involved does amount of discretion have a defendant would matters is what sentence

What verdict, his the basis of the solely on received he or she made. record, admissions any prior her as a maxi- would face a defendant Whatever sentence statutory factors is the considering only these mum this maxi- changes Any fact-finding maximum. Amendment, of how regardless mum the Sixth violates in finding trial court has those discretion the much Id. facts. is irrel- make clear that it Blakely

Both and Booker judge depart exists for the possibility evant that the in some circum- statutory maximum sentence from maximum in this Blakely, Under stances. sanction sen- the 11-month intermediate case remains in- tence, though judge empowered even was succinctly fact-finding. Blakely crease it after additional point: on this reasoning Court’s explained Supreme imposed the judge in this case could not have solely on the basis of the exceptional 90-month sentence guilty plea. Those facts alone were facts admitted in the because, Washington Court has insufficient as the justify exceptional an explained, “[a] reason offered to only if it takes into account sentence can be considered computing other than those which are used factors Gore, offense,” v] [State sentence for the standard 315-316; (2001)], which in 2d P3d [143 Wash second-degree kidnap this case included elements firearm, Code] Rev [Wash see ping and the use of a 9.94A.310(3)(b). judge imposed the 9.94A.320, Had 736 479 Mich 672 Dissenting Opinion by J. Kelly, solely plea,

90-month sentence on the basis of the he would 9.94A.210(4). [Wash have heen reversed. See Rev Code] years The “maximum sentence” is no more 10 here it than (because years Apprendi was 20 judge that is what the crime) imposed upon finding could have a hate or death in (because Ring judge that is what the imposed could have upon finding aggravator). [Blakely, an 304.] US at case, this the maximum was 11 months in jail. Only the judicial fact-finding necessary to score the OV factors allowed the judge impose the higher maximum sentence. Had the sentenced judge to a years maximum of 15 without the scoring OVs or making additional fact-finding, he would have commit- ted an error requiring reversal. The same rule of law applies as in Ring, Blakely, Booker, and Cunningham. Therefore, there is a Sixth Amendment violation this case, regardless of the fact that the trial judge exercised the discretion that guidelines allowed.

B. THE COURT’S COMPANION DECISION IN HARPER In its decision in Harper, majority relies heavily on the fact that probation is one of the possible inter- 769.31(b). mediate provided sanctions for in MCL It believes that this fact presents a strong indication that intermediate sanction cell sentences are really not sentences, despite the language of MCL 769.34(4)(a). true, It is majority contends, as the probation is a matter of grace. MCL 771.4. It may be revoked without a trial or proof beyond a reason- able doubt. United Knights, States v 112, 120; 534 US (2001). 587; 122 Ct S 151 L Ed 2d But, again, consideration is simply irrelevant to the question at hand.

It is not may relevant that a court probation revoke without violating Sixth Amendment. What matters People McCuller v Dissenting Opinion by “If probation. it revokes may do after the court is what revoked, may order is a probation and to the same in the same manner probationer probation if the might have done the court penalty as MCL 771.4. This does made.” had never been order it could same sentence impose court to require after a sentencing. But the initial have imposed to follow required still is violation, the court probation Hendrick, Mich v sentencing guidelines. (2005). Therefore, sentenc- 555, 560; NW2d 511 after a before and position in the same ing court is violation. probation any sentence impose is not free to sentencing

A court Instead, it must violation. probation it wish after a may probation. as before guidelines the same comply with impose it can a sentence probation, And as before just if guidelines range only from the departing of fact that substantial and findings judicial it makes depart. reasons exist compelling con- postprobation may consider the defendant’s compelling if substantial and determining duct when was violated probation the fact that reasons exist. But a substantial automatically constitute does not The trial court See id. at 562-563. reason. compelling if it range only guidelines from the depart still can sentencing justifying of fact at findings makes this, a violation probation Because departure. Sixth Amendment nothing for of the changes purposes analysis. impose probation did not the trial court

Although used for demon- this case can be case, the facts of scored, If the PRVs had been only purposes. stration have been would minimum sentence defendant’s 777.21(3)(a); 777.65. MCL MCL 11 months. zero to sanction is an intermediate the cell involved Because 479 MICH672 Dissenting Opinion by Kelly, 769.34(4)(a) cell, MCL provides that defendant’s maxi- mum sentence would been 11 jail. have months in sentencing court could have imposed probation rather 769.31(b). jail If, than a MCL later, term. defendant had probation, violated that the court could have revoked probation and resentenced defendant. But when it so, did it still would comply have had to with the guidelines. Hendrick, 472 Mich at 560. Defendant again would have fallen into the zero- to 11-month guidelines range. Again, his maximum sentence would have been 11 months in jail, absent substantial and compelling 769.34(4)(a). reasons to exceed the maximum. MCL Because a maximum involved, sentence is the Blakely bright-line rule would apply. “Except for a prior convic- tion, ‘any fact that increases the penalty for a crime beyond prescribed statutory maximum must be submitted to jury, and proved beyond a reasonable ” doubt.’ Cunningham, 127 S Ct at quoting Ap- prendi, 530 US at 490.

Increasing a defendant’s maximum sentence solely on judicial the basis of fact-finding violates the Sixth just Amendment as much after a probation revocation as it does before. A defendant who has violated proba- tion could be sentenced to no more than original maximum sentence that was based on verdict. The court right has no impose a new maximum simply because of the violation. Cunningham, 127 S Ct at 868.

In Harper, the majority heavily relies on United States v Ray25 to support argument its that Blakely’s bright-line rule does not apply to resentencing after probation. Ray is highly distinguishable. Unlike the Michigan probation system, the federal system at issue in Ray did not mandate resentencing under the federal (CA 2007). 9, 484 F3d 1168 People v McCuller Dissenting Opinion by completely It new sentencing guidelines. imposed based on the violation. has a sentencing system process The federal criminal release supervised called release. Federal supervised it is in addition probation imposed differs from instead of it. v imprisonment, to rather than Samson 843; 2193, 2198; 165 L Ed California, 547 US 126 S Ct (2006), Reyes, 2d 250 United States v 283 F3d quoting (CA 2002). 2, 18 USC 3583 allows a federal a term impose supervised court at to from the time for set by release distinct incarceration federal That statute sentencing guidelines. same im- authorizes a new maximum sentence that can be after revocation of release. 18 USC posed supervised 3583(e)(3).

Therefore, a court imposing federal sentence after a release does not return supervised revocation to the sentencing guidelines impose a sentence. It turns to by the new sentence allowed 18 USC 3583. Given that system supervised the federal allows release addition incarceration, a defendant faces this sen- possible beginning. judicially tence from the It is not a created sen- increase the defendant’s by Legislature tence. It is a sentence created a defendant from the time that he or she faced commits the crime. MICHIGAN’S PROBATION SYSTEM

C. system. Michigan’s probation This differs from Michigan has no statute to 18 USC 3583. equivalent facing Rather than a new sentence set statute violation, Michigan for the specifically probation guidelines. merely resentenced under Therefore, Hendrick, Michigan Mich 560. in every not face an increased maximum defendant does 740 479 Mich 672 Dissenting Opinion by A can defendant out of an Michigan case. court move a only by cell after mak- probation intermediate sanction ing judicial findings using preponderance of fact of the Again, findings evidence standard. because these of fact sentence, statutory increase defendant’s they Blakely’s bright-line Cunningham, violate rule. 127 S Ct at 868. prison

A court after a Michigan imposing probation in an equates violation intermediate sanction cell case to a federal court imposing exceeding a sentence by allowed 18 USC 3583 for revocation of supervised cases, limited release. In both the sentencing court is to by Legislature. the maximum sentence set And in instances, imposition longer both of a violates the Sixth Amendment.

A similar distinction exists pro- between federal system Michigan probation system. bation and the Unlike a Michigan probationer, a federal probationer who violates the conditions of probation is resen- Rather, tenced under the federal sentencing guidelines. the court must refer to a statement nonbinding policy released the United Sentencing States Commission. (CA 2006). 319, 2, United States v 446 F3d Goffi, Appeals Court of for the Second explained Circuit why does not Blakely apply sentencing to after a federal probation violation: requires scheme thus factors, variety including

to consider a non-hinding policy applicable probation violations, statements determining Nowhere, however, appropriate an sentence. require does it a court to sentence within the Guidelines underlying determining punish- conviction in for separate ment and distinct for malfeasance probation.... Pena, —violation United v. States F.3d Cir.1997) (5th (“Because guidelines there are no probation, on revocation of and because the People v McCuller Opinion by Dissenting Kelly, J. sentencing range court was not limited to the district sentence, available the time of the initial we find no employ analysis in the court’s error trial failure case[s].”).... normally required departure [Id. at 322- added).] (emphasis Michigan. The exact is true in opposite guide- lines to a defendant. Hen- apply Michigan continue drick, Mich 560. The is limited to the sentence available at the time of the initial And probation sentence. the violation is not treated as in Michigan. a malfeasance v Kacz- separate (2001). marek, 483-484; 464 Mich 628 NW2d 484 fundamental Michigan’s These differences between different system system and the federal mandate re- in applying Blakely’s bright-line sults rule. Because by of the factors relied on the federal courts exists none Michigan, Blakely apply probation continues to after in Michigan. completely revocation This undermines that, majority’s argument possibility the because of the sanction, probation as an intermediate intermediate minimum a produce sanction cells rather than maxi- mum sentence.26 the undermining majority’s theory

Further is that, fact treats intermediate practice, Michigan sanction cell sentences as maximum sentences. When a an in- defendant receives intermediate sanction that And, majority simply disregards reasoning and Pena. Goffi so, doing disregards systems. it between the See distinctions two fact, Harper, systems greatly. Mich n 51. In differ In at 628 two guidelines, system, longer a court sentences under the federal no malfeasance, probation statutory a distinct and the former viewed as Goffi, 322-323; Pena, longer applies. maximum no 446 F3d at 125 F3d at Michigan, probation separate guidelines 287. In is not a offense. The still subject statutory apply, and the defendant remains to the 769.34(4)(a). Therefore, the federal sentence created MCL unlike subject Blakely bright-line system, Michigan system is still to the rule probation. after a defendant violates 479 Mich Dissenting Opinion Kelly, sentence, he or she faces that sentence only jail

eludes 11- A defendant receives an nothing and more. who is released from at the jail supervision month the case end of 11 months. The court does not review if more incarceration is after 11 months to determine defendant finishes the sentence Simply, warranted. Therefore, jail. and from an intermediate is released jail that includes a term is treated sanction cell sentence just any like other maximum sentence. majority argues further that interme- Harper, minimum

diate sanctions must be sentences because them can be subject given sentence of probation jail. argues recognizing with It intermediate sanction cell sentences are maximum sentences limit the effectiveness of im- will Although such sentences. it is true that MCL posing 769.31(b)(iu) allows for intermediate sanction cell sen- probation jail, majori- tences that include both ty’s point reliance on this is irrelevant. determined Legislature

The has that a sentence of in jail appropriate statutory months is an sentence for defendants who merit an intermediate sanction.27 Our constitution the Legislature vests with authority the ultimate to set criminal penalties. Const 4, 45;§ Hegwood, 432, 436; art v 465 Mich (2001). Legislature 636 NW2d 127 inserted the 769.34(4)(a). 12-month limit in jail on sentences MCL Court, not Only Legislature, may the this increase this limit. Someone who believes that the 12-month cap petition Legislature insufficient can the to amend the ignore statute. But the Court cannot the maximum sentence and defendant’s Sixth Amend- may jail “An intermediate sanction include a term that does not upper exceed limit the of the recommended minimum sentence 769.34(4)(a). months, whichever is less.” MCL People v McCuller Dissenting Opinion by to it because the Court finds rights regard ment with statutory penalty the insufficient. those who believe that 12 months is example,

For punish probation incarceration to violators insufficient Legislature change Michigan’s to petition could system. to mimic the federal probation system could the lead of and treat a Legislature follow Goffi malfeasance. It could separate violation as probation subject, guidelines violation not to the probation make offense, underlying independent punish- for the but 322-323; Pena, 125 F3d at Goffi, ment. See 446 F3d at Legislature change, If the effected such a it could 287. lurking the Sixth Amendment violation now eliminate But, Michigan system. again, must decision Legislature. left to the be majority and most can-

Ultimately, importantly, the Sixth Amendment because it is disregard simply quo convenient for of the status or because it purposes comports legislative Blakely specifically with intent. rejected any approach: such

Ultimately, our decision cannot turn on whether or to degree by jury impairs efficiency what trial or fairness justice. certainly argue of criminal One can that hoth these by leaving justice entirely values would be better served world, many professionals; nations of the hands traditions, just particularly following those civil-law take doubt, however, that course. There is not one shred of paradigm justice: criminal not the about the Framers’ perfection, but civil-law ideal of administrative accomplished hy power common-law ideal of limited state authority judge jury. strict division of between As held, every right Apprendi to insist that has prosecutor prove legally essential to all facts [Blakely, (emphasis punishment. 542 US at 313 original).] 479 Mich 672 by Dissenting Opinion Kelly, he easier to continue the current modus might

It by allowing violators operandi: punish probation to judges to increase their maximum sentence using findings supported by of fact not the violator’s prior record or admissions or a verdict. But the Sixth Amendment not allow to disregard does courts just defendants’ rights making because a correction require judicial system undergo change. would Id. in majority relying is also incorrect on its belief

that Legislature probation intended that violators be punished jail. with more than months in Even if Legislature intended that it is punishment, irrel- evant. This fact was made obvious decision in Ring. legislature The Arizona intended of death imposed should be murder first-degree cases aggravating which factors existed. US at Ring, 536 592-593. But the Supreme Court found that this intent could not be in light effectuated of the Sixth Amend- Notwithstanding intent, ment. legislature’s Arizona judicial fact-finding Ring’s increased sentence to the death penalty Blakely’s bright- violated line rule: “If a State makes an increase a defendant’s punishment contingent authorized on finding of a fact, that fact —no matter how the State labels it—must by jury beyond be found a reasonable doubt.” Id. at 602.

Moreover, the proper application the Sixth Amend- Michigan’s ment to intermediate sanction cells need not weaken an intermediate sanction cell pro- sentence of jail. system easily bation with could be made to comply Blakely. with For example, Court could amend our court rules to for a provide jury be impaneled probation after court finds a If violation. beyond then found a reasonable doubt the facts v McCuller Dissenting Opinion by J. Kelly, necessary from an intermediate move cell, Sixth sanction there would be no Amendment Michigan Therefore, violation. could both retain its probation system protect current a defendant’s rights. constitutional require sum, intermediate sanction cells a sen- fact, of,

tence that contains all the attributes and is in This maximum sentence can be maximum sentence. only by using judicial fact-finding occurring increased after the verdict. This makes the intermediate equivalent sanction cell sentence to the middle term sentencing sentence under California’s scheme. Cun- ningham, at 868. Both 127 S Ct sentences amount to statutory Apprendi purposes. maximum for And a court violates the Sixth Amendment when it sentences longer a defendant to a than this using judicial fact-finding. Id. at 870. VIII. HARMLESS error majority that, The concludes if even defendant’s Blakely, sentence violated disagree. I the error was harmless. Blakely it is true While violations are subject review, to harmless error I believethat the error beyond in this case was not harmless a reasonable doubt. Supreme Blakely Court concluded that errors requiring

are not structural errors automatic reversal. Washington 2546, 2553; v 126 S Ct Recuenco,_US_; (2006). L165 Ed 2d 466 The Court reasoned equivalent are factors of the elements of jury beyond proved crime, which must be to a “ ‘[A]n reasonable doubt. Id. at 2552. instruction that necessarily omits an element of the offense does not fundamentally render a criminal trial unfair or an ” determining guilt unreliable vehicle for or innocence.’ Mich 672 Dissenting Opinion States, 1, 9; v United 527 US quoting Id. at Neder (1999) 1827; (emphasis 119 Ct 144 L Ed 2d 35 S the failure to original). present Given that the failure to submit equivalent to a is the factor offense, it cannot be a structural an element of Recuenco, 126 error. S Ct at 2552. this issue under a error majority plain reviews defendant did not raise a constitu-

standard because But the trial court challenge sentencing. tional the United sentenced defendant before States Blakely. Blakely Court decided Given that was semi- significantly nal case and clarified Sixth Amendment rights, I believe that it is excusable for defendant not to raised the issue Blakely have before was decided. The appropriate standard of review is whether the omission beyond of an element of the offense is harmless Neder, doubt. 527 US at 18-19. reasonable course, safeguarding jury guarantee the Of will often require reviewing thorough that a court conduct a exami- If, examination, nation of the record. at the end of that beyond court cannot conclude a reasonable doubt that the jury been verdict would have the same absent the error— example, for where the defendant contested the omitted support element and raised evidence sufficient to a con- trary finding should [Id. not find error harmless. —it 19.] This case three specific findings involves of fact. For 1, weapon, gun OV the court found that a other than a knife, 2, or it touched victim. For OV found that lethal And possessed potentially weapon. 3, for OV it found that the victim suffered a life threatening permanent incapacitating injury. findings charged None of these is an element of the great bodily offense of assault with intent to do harm Therefore, less than murder. MCL 750.84. the jury People v McCuller Dissenting Opinion Kelly, J. would have had to make special findings of fact to support an increase in the maximum sentence in Michigan this case. has no procedure for criminal juries to use to make special such findings.28 See MCR 70, Harper, majority mistakenly In 479 Mich at 640 n states that open question special this Court has left verdicts in criminal cases. majority actually proposition dissenting relies on a in Justice Levin’s opinion People Ramsey, 500; (1985), v 422 Mich 375NW2d 297 to reach fact, rejected specifically special this conclusion. In findings by this Court jury long ago Marion, a criminal case as as 1874.In v 29 Mich 31, (1874), rejected the Court the defendant’s claim that a statute allowing special findings apply in civil trials should to criminal trials as well: only remaining question relates to the refusal of the specially upon court to direct particular to find certain

points provides practice fact. The statute which for this is chapter relating found in a (chap. the “Trial of issues fact” 103, S.; 189, L., 1871), general R. ch. purpose C. of which is regulate causes, many provisions the trial of civil and of its only inapplicable repugnant are not but to the rules in criminal separate chapter cases. There is a devoted to “Trials in criminal (ch. 165, S.; L., 1871), cases” Comp. covering R. ch. ground same chapter them that is covered the other regard to civil cases. contrary apparent, Unless an intention to the it would create difficulty much regulations, and confusion to blend the two sets of presumptively chapters respective must be confinedto their purposes. fact, allowing the Court special findings stated that in criminal cases revolutionary. 41; People Roat, would be Id. at see also v 117 Mich (1898). 583; today, 76 NW 91 questioned Until this Court has never the holding of these cases. Appeals by majority The Court of support cases cited the also do not majority’s special findings permissible the contention that are in criminal “special trials. Both merely passing. cases mentioned verdict forms” in And both of these were references directed at forms that would allow the distinguish multiple charges court to for the same offense. Neither case special findings by jury dealt beyond general with made a a verdict for the Kiczenski, People 341, 345; App individual offense. v 118Mich 324 NW2d (1982); Matuszak, 42, 51; App 614 v 263 Mich 687 NW2d 342 479 MICH Opinion Dissenting Kelly, J. The deficiency significant. is procedural 6.420.29 This the lack of has stated that Court Supreme States United finding suggest- make a jury a enabling procedure a demonstrating the will succeed defendant sthat a Recuenco, 126 S Ct at harmless. not violation was Blakely renders more case, procedure In the lack of 2550. this showing of that burden prosecution’s difficult the error was harmless.30 weapon. of a possession 2 deal with

Both OV and OV that defendant the evidence argues that majority and uncontested. overwhelming weapon was possessed trial, had no unfair. At argument But this (2004). creating fairly the “revolu- characterized as case cam be Neither And, contrary to the against Root. in Marion and tion” cautioned contention, appears settled. majority’s this area of law well findings permis majority argues special are Harper, that also application for the of the court rules allow sible in criminal trials because proceedings procedure in certain circum to criminal the rules of civil First, essentially argument that this Court this is the same stances. 6.001(D)(2) Second, specifically Marion, rejected 29 Mich at 40. MCR clearly procedure application “when it the rules of civil limits the of only[.]” they apply that this Court appears to civil actions Given trials, findings rejected availability special it is clear to criminal 6.001(D)(3) Third, only applies civil actions. MCR 2.514 that MCR provides apply when a “court rule that the rules do not indicates civil provides procedure.” but different MCR 6.420 a similar like or different Hence, returning jury in criminal cases. for the verdicts standard standard, special findings, precedence takes over not include which does procedures 2.514. allowed in MCR Blakely effectivelyfinding majority errors “harm me of all accuses acknowledge per inaccurate. I Ante at 695 n 17. This is ful se.” apply per But when I Blakely was not harmful se. error in Recuenco Court, Blakely Supreme it is clear to me that States words of the United beyond may doubt. This is Michigan harmless a reasonable be errors advises, because, procedure the lack of a will increase Court as the prove any difficulty prosecution’s error harmless burden to Michigan procedure. beyond If the has doubt. And lacks a reasonable reviewing presume making finding, that the how can a no means of prohibition against finding regardless it? juiy of the have made that would People v McCuller Dissenting Opinion by Kelly, J. to or reason contest the evidence opportunity regarding not an weapon. It was element the offense or to For relevant defendant’s defense strategy. defendant to objected weapon the existence of have to would have irrelevant, and distracting, potentially confusing been to jury. Given there was no or opportunity that reason point, evidence on this can present hardly defendant be so. doing faulted

Moreover, the evidence the use of a regarding weapon in fact key prosecution witness, was contested. One Gre- that gory Thompson, testified defendant did not use a weapon but complainant beat the with his fists.31And no weapon at the was ever found scene of offense. This evidence contradicts conclusion a weapon that was this, involved. Because of the prosecution cannot dem- beyond onstrate jury a reasonable doubt that a would findings have made the necessary fact to score 1OV and OV 2.

OV 3 deals the injury with suffered the complain- To points ant. warrant 25 under OV there must be a permanent or threatening incapacitating “[l]ife in- 777.33(l)(c). ....” jury MCL was While there evidence the complainant’s injuries that significant, were there no specific was that they evidence were life threatening permanently or lack incapacitating. This of evidence precludes that was conclusion error harmless. No expert medical testified at And trial. defendant’s medical records were not the jury. Again, submitted to is because prosecution neither defendant nor the any argue had reason these issues trial. Without testimony, Thompson’s majority I have not as the mischaracterized During questioning, Thompson claims. initial that stated complainant During with indicated defendant beat his fists. cross-examination, Thompson possible stated that it was that defendant weapon. used [July- 479 MICH Dissenting Opinion incapacitation permanent evidence of medical

some could not life injuries threatening, were beyond a reasonable made such a determination have Hence, carry cannot its burden prosecution doubt.32 in this case Blakely occurring the error that prove to Neder, 527 beyond a reasonable doubt. harmless was at 18-19.33 US jury that the would

There is insufficient evidence necessary fact to score the findings made the of have light in fact that there especially This is true of the OVs. a make jury special in to procedures place are no Therefore, the Michigan. in a criminal trial findings Recuenco, Id.; did its 126 carry not burden. prosecution must a at 2550. Defendant be resentenced S Ct the Sixth Amendment. manner consistent with 32 argument presented the An can be made that evidence trial finding complainant bodily injury requiring supports a that the suffered evidence, justify argued, it would 10 medical treatment. This could be 777.33(l)(d). given prosecution But the points under OV 3. MCL argument appeal, properly it not the made this on is before Court. never however, prosecution argument, this it if the had made would Even beyond in defendant’s harmless a not have rendered error sentence points given A 10 would defendant PRV reasonable doubt. score of have placed him in the an OV of 10. This would have B-II score of and score grid. D The B-II of zero cell of the class 777.65. cell sets to MCL 777.65; habitual MCL MCL 13 months for second-offense offender. 777.21(3)(a). is cell. This still an intermediate sanction Defendant’s statutory maximum would have from months sentence increased 769.34(4)(a). Hence, jail. imposition 15-year in MCL of maxi- months bright-line Blakely’s rule. would have violated mum sentence still majority summarily that no evidence concludes medical was statute, contrary necessary in this case. Its conclusion is to the which threatening permanent incapacitating requires proof “[l]ife of in 777.33(l)(c). majority inappropriately shifts to ....” MCL also injuries. disprove the burden of the nature This review, required with error which is here. More inconsistent harmless trials, very over, nature of criminal which it is inconsistent with prosecution, defense, prove the elements of mandates that the not beyond charged doubt. crime a reasonable v McCuller Dissenting Opinion Kelly, rx. conclusion it Although concedes that Cunningham presented nothing it follow new must precedent line Blakely cases, the majority reaffirms its previous essence, decision majority case. today states that the Supreme United States Court did not comprehend the majority’s previous decision and Michigan misunderstood law.

The maximum sentence resulting from an interme- diate cell sanction is a true maximum for purposes Cunningham. A court cannot increase this by scoring the OVs without violat- ing Finally, the Sixth Amendment. error harmless, in this case was not because the OVs were scored facts that using supported by were over- whelming evidence.

I take the Court’s order for it is: an what indication that there problem is a Sixth Amendment with Michigan’s sentencing guidelines. This case illus- grave trates that constitutional violation occurs in correctly state Blakely applied. when Specifically, judicial fact-finding that moved from an intermediate sanction cell to a straddle cell his violated Sixth right by jury. Amendment to trial vacated,

Defendant’s sentence be should and the case should be remanded to court resentencing. the trial for The Michigan sentencing guidelines statutes should be held unconstitutional in applied as this case.34 34 Court, Supreme is a Because this remand from the United States I necessary believe that it is not to address here the cure for the my constitutional I violation. continue to believe what I articulated in prior dissenting opinion. large portion Michigan’s Given that sentencing guidelines involve intermediate sanction cells that intertwine guidelines, with the rest of the the unconstitutional sections cannot be Therefore, guidelines severed. entire must be found unconstitutional 672 MICH

Dissenting by Cavanagh, Opinion J. I result agree with the (dissenting). CAVANAGH, in her because it dissent advocated Justice KELLY first time it in this case the comports my position with McCuller, v 475 Mich Court. See was before this (2006) J., 214; dissent- 715 NW2d (CAVANAGH, sanctions, I be- dealing When with intermediate ing). forth the United requirements set lieve in v US Blakely Washington, Court States 2531; (2004), L further 296; 124 S 159 Ed 2d 403 Ct v 127 S Cunningham applied California,_US_; (2007), Thus, 856; 166 L Ed 2d 856 must be followed. Ct engaged judicial trial fact- improperly case be remanded for resen- finding, and this should tencing. cases, Michigan applied they In future trial when as were this case. system.

judges implement hearing prosecu- should And the bifurcated verdict, required, guilty after a to submit the facts tion should be necessary scoring but the OVs to for resolution admitted issue, thorough beyond a For a of this reasonable doubt. more discussion McCuller, my previous Mich at I refer the reader to dissent. 208-213 J., dissenting). (Kelly,

Case Details

Case Name: People v. McCuller

Court Name: Michigan Supreme Court

Date Published: Jul 26, 2007

Citation: 739 N.W.2d 563

Docket Number: Docket 128161

Court Abbreviation: Mich.