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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DARIN HENDRICK, Defendant-Appellee. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, J. In this case, we consider

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILES JUNE 14, 2005

No. 126371

whether

the

legislative

sentencing guidelines apply to sentences imposed after a probation violation and whether a defendant's conduct while on probation can be for considered departure as a substantial the and

compelling

reason

from

legislative

sentencing guidelines. The legislative sentencing guidelines apply to certain enumerated felonies committed on or after January 1, 1999. MCL 777.1 et seq.; MCL 769.34(2). The language of MCL

769.34(2) is very clear. the legislative

It lists no exceptions. would apply to

Thus,

guidelines

defendant's

sentence, even if the sentence follows the imposition and revocation of probation. Further, MCL 771.4 states that if probation is

revoked, the court may sentence the probationer to the same penalty as if probation had never been granted, but does not require that the same penalty be imposed. Thus, the

sentencing court is not precluded from considering events surrounding the probation violation when sentencing the

defendant on the original offense. The Court of Appeals1 correctly held that the

sentencing guidelines apply to sentences imposed after a probation probation compelling violation violation reasons to and that acts giving rise to the and It

may

constitute from the

substantial guidelines.

depart

incorrectly held that the acts giving rise to the probation violation connection variables. in with this the case prior were record already considered and in

variables

offense

We thus affirm in part and reverse in part the

judgment of the Court of Appeals, vacate the sentence, and remand this case to the trial court for resentencing. I. UNDERLYING FACTS AND PROCEDURAL HISTORY On March 20, 2000, defendant pleaded guilty to a

charge of attempted first-degree home invasion, MCL 750.92;

1

261 Mich App 673; 683 NW2d 218 (2004). 2


MCL

750.110a(2).

Defendant

was

sentenced

to

a

five-year

term of probation, with the first year to be served in jail. On April 9, 2001, defendant pleaded guilty to a

charge of possession of a Molotov cocktail, MCL 750.211a. The trial court again sentenced him to a five-year term of probation, with the first year to be served in jail. July 23, 2001, the defendant of was arrested yet by again On for a

violating

terms

his

probation

possessing

shotgun while walking on a public street. On August 23, 2001, the trial court revoked

defendant's two probationary sentences and sentenced him to one to five years of imprisonment for the attempted home invasion and of ten a to twenty years of imprisonment The for

possession sentencing

Molotov range

cocktail. for the

legislative cocktail

guidelines

Molotov

conviction was twelve to forty-eight months in prison, thus making defendant's ten-year minimum sentence a departure if the guidelines applied. The trial court, however, did not

believe that the guidelines applied to sentences imposed after probation violation. Accordingly, it did not apply

the guidelines in determining defendant's sentence. The Court of Appeals denied leave to appeal. In lieu

of granting leave to appeal, we remanded this case to the Court of Appeals for consideration as on leave granted and directed it to consider (1) 3
whether the legislative

sentencing guidelines apply to sentences imposed after a probation violation, and (2) if not, whether a sentencing court may consider the principles of proportionality

discussed in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).2 The Court of Appeals held that the legislative

sentencing guidelines were indeed applicable to sentences imposed noted causing after that the in probation revocation. cases," The the panel further

"exceptional

circumstances constitute an a

probation and

revocation

could for

"substantial departure.

compelling" of

reason

upward for

The

Court

Appeals,

however,

remanded

resentencing, concluding that the reasons articulated by the trial court were not "substantial and compelling." The prosecutor sought leave to appeal, contending that the legislative imposed sentencing after a guidelines probation do not apply In to the

sentences

violation.

alternative, the prosecution argued that if the guidelines were applicable, the conduct constituting the probation

violation provided an automatic substantial and compelling reason for departure from the guidelines.

2

468 Mich 918 (2003). 4


We granted the prosecution's application for leave to appeal.3 II. STANDARD OF REVIEW Whether the legislative sentencing guidelines apply to sentences imposed after probation revocation is a question of law that we review de novo. People v Rodriguez, 463 Mich 466, 471; 620 NW2d 13 (2000). Similarly, whether conduct

resulting in the revocation of probation may constitute a "substantial and compelling" reason for an upward departure from the legislative sentencing guidelines Id. is also a

question of law subject to review de novo. III. ANALYSIS

A. The legislative sentencing guidelines apply to sentences imposed after probation revocation.

The legislative sentencing guidelines apply to certain enumerated felonies committed on or after January 1, 1999. MCL 777.1 et seq.; MCL 769.34(2).4 It is undisputed that

the guidelines apply to the felonies defendant committed in this case--possession of a Molotov cocktail and attempted

3 4

471 Mich 914 (2004).

MCL 769.34(2) provides, in relevant part, that "the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVII committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed." 5


home

invasion.

It

is were

also

undisputed after

that

defendant's 1, 1999.

underlying

crimes

committed

January

Thus, the legislative sentencing guidelines apply, even if the sentence follows the imposition and revocation of

probation, because the language of MCL 769.34(2) is clear and lists no exceptions. of Appeals that the We therefore agree with the Court apply to all enumerated

guidelines

felonies committed on or after the effective date, whether or not the sentence is imposed after probation revocation.5 B. The act giving rise to the probation violation may provide a substantial and compelling reason to depart from the legislative sentencing guidelines.

MCL 771.4, which governs probation and revocation of probation, states: It is the intent of the legislature that the granting of probation is a matter of grace conferring no vested right to its continuance. If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation. All probation orders are revocable in any manner the court that imposed probation considers applicable either for a violation or attempted violation of a probation condition or for any other type of antisocial conduct or action on the probationer's part for which the court determines that revocation is proper in the public interest. Hearings on the revocation shall be summary and informal and not subject to the

The judicially created sentencing guidelines, however, do not apply to probation revocation cases. 6


5

rules of evidence or of pleadings applicable in criminal trials. In its probation order or by general rule, the court may provide for the apprehension, detention, and confinement of a probationer accused of violating a probation condition or conduct inconsistent with the public good. The method of hearing and presentation of charges are within the court's discretion, except that the probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation and to a probation revocation hearing. The court may investigate and enter a disposition of the probationer as the court determines best serves the public interest. If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made. This section does not apply to a juvenile placed on probation and committed under section 1(3) or (4) of chapter IX to an institution or agency described in the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309. [Emphasis added.]

The

sentence

at

issue

in

MCL

771.4

is

clearly

permissive, not mandatory. It states that "if" probation is revoked, probation the had court never "may" been sentence granted. the defendant the as if

While

sentencing

court may sentence the probationer in the same manner and to the same penalty, nothing in the statute requires it to do so. In fact, the statute places an affirmative

obligation on the trial court to take only two actions--to provide the probationer with a written copy of the charges constituting the probation violation and to conduct a

probation revocation hearing.

7


Thus, probation.

the In

court the

may event

continue, that the

extend, court

or

revoke a

revokes

defendant's probation, it may sentence the defendant "in the same manner and to the same penalty as the court might have done if the probation order had never been made." A judge, however, is not required to sentence the defendant "in the same manner."6 Further, the Legislature did not alter our

jurisprudence on probation in the statutory codification of sentencing guidelines.7 That is, a probation violation does Id. at 482.

"not constitute a separate felony . . . ."

Rather, "revocation of probation simply clears the way for a resentencing on the original offense."8 Defendant here is

thus being sentenced on the original offense--possession of a Molotov cocktail.
6

Without a mandate to impose a sentence

MCL 771.7(1), which deals with revocation of probation for a juvenile following certain convictions, specifically requires a trial court to "order the juvenile committed to the department of corrections for a term of years that does not exceed the penalty that could have been imposed for the offense for which the juvenile was originally convicted and placed on probation." (Emphasis added.) The Legislature could have incorporated similar language in MCL 771.4 if it intended to preclude the trial court from sentencing adult probationers to a term of years that exceeds the penalty that could have originally been imposed, but it did not do so. People v Kaczmarek, 464 Mich 478, 482; 628 NW2d 484 (2001).
8 7

Id. at 483.

8


on

the

probationer

in

the

same

manner

and

to

the

same

penalty that could have been imposed if the probation order had never been made, it is perfectly acceptable to consider postprobation factors in determining whether substantial

and compelling reasons exist to warrant an upward departure from the legislative sentencing guidelines.9 Of course, not every probation violation and

revocation warrants an upward departure.

A trial court has It

broad latitude in deciding whether to revoke probation.

has less latitude in imposing a sentence in excess of the guidelines. The sentencing court must always follow the

requirements set forth in MCL 769.34, as interpreted in People v Babcock, 469 Mich 247; 666 NW2d 231 (2003). MCL 769.34(3) permits a court to "depart from the

appropriate sentence range established under the sentencing guidelines compelling record the . . . if for the that court has a and substantial states on and the a an

reason

departure

reasons and

for

departure." reason

Babcock as

defines

"substantial

compelling"

requiring

We recognize that in Kaczmarek, supra at 483, we noted that "`[i]f a judge finds that a probationer violated his probation by committing an offense, the probationer is neither burdened with a new conviction nor exposed to punishment other than that to which he was already exposed . . . .'" (Citation omitted.) The issue in Kaczmarek, however, was whether a probation violation is a "crime"; it was not, as it is in this case, how a defendant should be sentenced after violating probation. 9


9

objective

and

verifiable grabs the

reason court's

that attention

"keenly" and is

or of

"irresistibly"

"considerable worth." "substantial and

Moreover, Babcock requires that the reasons articulated by the

compelling"

trial court justify that particular departure. of Appeals held from and when that the the trial court's guidelines they record

The Court for not

reasons were

departing substantial considered

sentencing

compelling scoring the

because prior

were

already and

variables

offense variables. C. Application of Babcock to defendant's postprobation violation sentence. Although the trial court considered several reasons for its upward departure, it did not sufficiently

articulate its reasons on the record, because it believed that Babcock did not apply to sentences imposed after

revocation of probation. were already and considered offense

Some of the trial court's reasons in scoring the Some prior of the record trial

variables

variables.10

The trial court referred to defendant's prior criminal history and recidivist history as factors to support defendant's sentence. These factors, however, were included in the scoring of the prior record variables and offense variables and, thus, were insufficient to support an upward departure absent a finding by the trial court that the factors were given inadequate weight when scored. MCL 769.34(3)(b). The trial court did not believe the Footnotes continued on following page. 10


10

court's reasons, however, were not considered in connection with the prior record variables and offense variables, such as defendant's intent to explode the Molotov cocktail in order to harm his sister. Further, the trial court did not consider probation the circumstances surrounding possession of defendant's a shotgun

violation

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