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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BERNARD GEORGE HARPER, JR., Defendant-Appellant.

Chief Justice:

Justices:

Clifford W. Taylor

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

FILED JULY 26, 2007

No. 130988

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JESSE GENE BURNS, Defendant-Appellant. No. 131898

BEFORE THE ENTIRE BENCH CORRIGAN, J. We granted leave to appeal in these two cases to determine whether an "intermediate sanction" described in MCL 769.31(b) and MCL 769.34(4) constitutes a maximum sentence under Blakely v Washington, 542 US 296; 124 S

Ct 2531; 159 L Ed 2d 403 (2004), for which the facts supporting a departure must be found by a jury beyond a reasonable doubt or admitted by the defendant. We conclude that because Michigan has a true indeterminate sentencing scheme, an intermediate sanction is not a maximum sentence that is governed by Blakely. Under Michigan law, the maximum portion of a defendant's indeterminate sentence is prescribed by MCL 769.8(1), which requires a sentencing judge to impose no less than the prescribed statutory maximum sentence as the maximum sentence for most felony convictions. Michigan's unique law requiring the

imposition of an intermediate sanction upon fulfillment of the conditions of MCL 769.34(4)(a) does not alter the maximum sentence that is required upon conviction and authorized by either the jury verdict or the guilty plea.1 Rather, the

conditional limit on incarceration contained in MCL 769.34(4)(a) is a matter of legislative leniency, giving a defendant the opportunity to be incarcerated for a period that is less than that authorized by the jury verdict or the guilty plea, a circumstance that does not implicate Blakely.2

Accordingly, we reject the Court of Appeals contrary conclusion in People v Uphaus, ___ Mich App ___; ___NW2d ___ (2007) (Docket No. 267238, issued April 3, 2007). As Justice Kennedy noted in Harris v United States, 536 US 545, 566; 122 S Ct 2406; 153 L Ed 2d 524 (2002), "[t]he Fifth and Sixth Amendments ensure that the defendant `will never get more punishment than he bargained for when he did the crime,' but they do not promise that he will receive `anything less' than that." (Emphasis added; citation omitted.) See also Apprendi v New Jersey, 530 US 466, 498-499; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (Scalia, J., concurring), indicating that the Sixth Amendment provides "the right to have a (continued...) 2

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Finally, even if an intermediate sanction were a statutory maximum for purposes of Blakely and the sentencing courts in these cases violated Blakely, we conclude that any error was harmless. In both cases, the facts used by the

sentencing judges to support the sentence were uncontested and supported by overwhelming evidence, such that we are convinced beyond a reasonable doubt that a jury would have reached the same result. Accordingly, we affirm the defendants' convictions and sentences. I. FACTS AND PROCEDURAL HISTORY A. PEOPLE v HARPER On February 14, 2005, defendant Harper pleaded guilty of larceny in a building, which is a class G offense that carries a statutory maximum sentence of four years' imprisonment.3 He admitted that, between December 11 and

December 16, 2004, he stole coats from his employer, the Old News Boys of Flint, a nonprofit organization that solicits donations to aid needy families in Flint. Harper then sold some of the coats.

(...continued)
jury determine those facts that determine the maximum sentence the law allows," and that a defendant receiving a lesser sentence "may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted governor if his sentence is commuted)."

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MCL 750.360; MCL 750.503; MCL 777.16r.

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As part of the plea agreement, the prosecutor dismissed a related embezzlement charge.4 The prosecutor also agreed not to seek an enhanced

sentence based on Harper's status as a fourth-offense habitual offender.5 The parties made no other agreement regarding Harper's sentence. Harper did not contest that his criminal record included two prior convictions for high severity felonies, three prior convictions for low severity felonies, and one prior misdemeanor conviction. Accordingly, he received an overall prior record variable (PRV) score of 72, based on scores of 50, 20, and 2 points, respectively, for PRV 1, PRV 2, and PRV 5.6 His offense variable (OV) score consisted of the five points he received under OV 16, because his offense caused property with a value of $1,000 or more but not more than $20,000 to be "obtained, damaged, lost or destroyed."7 These scores placed him in the E-I cell of the sentencing grid for class G offenses. As a result, his calculated minimum sentence range was zero to 17 months.8 Because his minimum sentence range had an upper limit of 18 months or less, the court was required to impose an intermediate sanction--which may
4 5

MCL 750.174(4)(a).

As a fourth-offense habitual offender, Harper's potential maximum prison sentence for larceny in a building would have increased from 4 years to 15 years under MCL 769.12(1)(b).
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MCL 777.51; MCL 777.52; MCL 777.55. MCL 777.46(1)(c).

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include, for instance, a term of probation or a jail term of 12 months or less-- unless the court stated on the record a substantial and compelling reason to impose a prison term.9 The Genesee Circuit Court concluded that departure was justified for several reasons, including Harper's extensive criminal history. The court noted Harper's record of three parole revocations, his history of absconding from parole, the bench warrants issued against him for failures to appear in court, and other "out of state" legal problems reflected in his presentence investigation report. The court added that the sentencing guidelines did not take into account that Harper had "ripped off a charity that was trying to do good for cold children." Accordingly, on March 11, 2005, the court sentenced Harper to a minimum prison term of 24 months, and a maximum term of 48 months with credit for time served. The Court of Appeals denied defendant's delayed application for leave to appeal, citing lack of merit in the grounds presented. Harper then applied for leave to appeal in this Court. We granted leave to consider whether his sentence, as an upward departure from an intermediate sanction, violated his constitutional right to have "`any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . submitted to a jury, and proved beyond a

(...continued) 8 MCL 777.68.
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MCL 769.34(4)(a); MCL 769.31(b).

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reasonable doubt.'" Blakely, supra at 301, quoting Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000).10 B. PEOPLE v BURNS In July 2002, defendant Burns pleaded guilty of attempted breaking and entering of a building. His recommended minimum sentence range under the guidelines was zero to 11 months, which placed him in an intermediate sanction cell. Burns was placed on probation for three years. Among the conditions of probation were that he must not violate the law, that he must not engage in threatening or assaultive behaviors, and that he must avoid alcohol and illegal drug consumption. In June 2005, Burns was charged with four counts of violating the terms of his probation: using alcohol, committing fourth-degree criminal sexual conduct, engaging in harassment, and engaging in assaultive behavior. Burns pleaded not guilty to the probation violation charges. A probation violation hearing was held. Two 18-year-old women testified that Burns had approached them near a boat ramp on Lake Michigan in Ottawa County. After engaging in small talk, Burns asked one of the women if she gave "good head." He also touched the woman on the buttocks and commented that it was "nice." Burns asked the other woman similar sexual questions and put his

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477 Mich 933 (2006).

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arm around her. The two women wrote down Burns's license plate number and reported the incident to the police. A police officer came to investigate the complaint. The officer stopped Burns's boat. The two women identified Burns as the person who had assaulted them. Although Burns initially denied that the incident had occurred, he

eventually admitted to the officer that he had asked the women if they knew how to give "a blow job." He also admitted that he had touched one woman on the buttocks and the other on the shoulder. He further told the officer that he had consumed about six beers and was "buzzed." Burns was administered a

preliminary breath test that registered a blood alcohol level above the legal limit. Burns called no witnesses and presented no evidence at the probation violation hearing. The trial court found, by a preponderance of the evidence, that Burns had been intoxicated, that he had committed fourth-degree criminal sexual conduct, and that he had done so in an intimidating, aggressive manner. At the probation violation sentencing, the trial court departed from the original guidelines recommendation of zero to 11 months and imposed a sentence of 18 months to 5 years. The court explained its decision: Well, I'm glad to hear that you've found religion and the reason to--it can give some meaning to your life. It doesn't however change what you did here. You know, there wasn't any question but that you did this to these young girls. I don't understand in a sense why you put them through taking the stand and testify [sic] to the whole thing, because there wasn't any issue, you did it. It expresses an attitude to me that is very puzzling. It's kind of a mean spirited thing that you did. Not that you didn't have

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a perfect right to do it, I would never dispute your right to a hearing and to have testimony confirm it, but it wasn't a close case, it was a clear cut case of a great deal of abuse on your part. You were about as intimidating and--to those young girls and you scared the devil out of them. It's a difficult thing to understand how you could publicly do that to people, young girls you didn't even know, you didn't have any--it was gross, it was very gross. Very intimidating. I suspect because of the fact that you fondled the one young lady you're probably going to be looking at some serious time in Holland if you're convicted [of fourth-degree criminal sexual conduct]. I suspect you will be because the girls told the story very honestly in my opinion. You're very likely going to get convicted and go to prison for that one. I seldom ever exceed guidelines, in fact I can't recall a time that I have, but I'm going to in your case. The behavior that you exhibited here certainly is not or was not contemplated in arriving at your original guidelines. It was gross, it was abusive, and I believe there's a compelling reason to exceed guidelines. It's the sentence of this Court that you be committed to the Michigan Department of Corrections for a term of 18 months to a maximum of 5 years. You have credit I believe for 142 days in the county jail. On the departure evaluation form, the court stated that the original guidelines recommendation of zero to 11 months failed "to consider [defendant's] violation behavior--which constitutes a substantial and compelling reason for a moderate departure . . . ."11

Contrary to the apparent assumptions of Justice Kelly, post at 4-6, and Justice Cavanagh, post at 2, the sentencing judge followed the proper procedure for stating his reasons for departure. A judge is required to "state[] on the record a substantial and compelling reason to sentence the individual to the jurisdiction of (continued...) 8


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Burns moved for resentencing, arguing that the fact that his sentence exceeded the guidelines range on the basis of facts neither admitted by him nor found by a jury beyond a reasonable doubt violated his due process rights under Blakely. The trial court denied the motion because this Court had stated in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004), that Blakely did not apply to Michigan's indeterminate sentencing system. explained: Therefore, the Court was not required to find Defendant guilty of 4th Degree Criminal Sexual Conduct beyond a reasonable doubt in order to consider that behavior for the purpose of exceeding guidelines. The Court found objective and verifiable evidence on the record, including Defendant's admission to the public safety officer that he touched the victim's "butt" and the uncontroverted testimony of the victims themselves that Defendant was harassing and intimidating. Such evidence was not considered in the original sentencing, and the Court maintains that Defendant's behavior constituted substantial and compelling reasons for exceeding statutory guidelines. The Court of Appeals denied Burns's application for leave to appeal for lack of merit in the grounds presented. Burns then sought leave to appeal in this Court. We granted the application and directed the parties to address whether an intermediate sanction described in MCL 769.31(b) and MCL 769.34(4) is a statutory maximum sentence under Blakely "for which the departure reasons must The court further

(...continued)
the department of corrections." MCL 769.34(4)(a) (emphasis added); see also
MCR 6.425(E)(1)(e). The judge did precisely this.


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be decided by a jury or admitted by the defendant, where the defendant is being sentenced for a violation of probation." 477 Mich 933 (2006). II. STANDARD OF REVIEW We review de novo questions of constitutional law. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). III. ANALYSIS A. MICHIGAN'S STATUTORY SENTENCING SCHEME UNDER BLAKELY Under the Due Process Clause of the Fifth Amendment and the jury trial guarantees of the Sixth Amendment, any fact that increases the maximum penalty for a crime must be submitted to a jury and proven beyond a reasonable doubt.12 The Fourteenth Amendment requires that the states' criminal sentencing schemes conform to this rule.13 The rule includes exceptions for the fact of prior

convictions and any facts admitted by the defendant.14 Accordingly, when sentencing a defendant, a judge may not exceed the maximum sentence authorized by the jury verdict or the guilty plea except on the basis of the facts reflected in the jury verdict, the facts admitted by the defendant, and the defendant's record of prior convictions. In other words, the statutory maximum, for Blakely purposes, is the maximum sentence a judge may impose

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Apprendi, supra at 476, 490. Id. at 476. Blakely, supra at 303; Apprendi, supra at 490.

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"without any additional findings." Blakely, supra at 304. In the wake of Blakely, state courts have been called upon to define the relevant statutory maximums within which judges may continue to exercise the traditional sentencing discretion legislatures afford them. The first question in this inquiry involves whether a state's sentencing scheme is determinate or indeterminate. As we have previously explained, under a determinate scheme, conviction for an offense typically exposes a defendant to a sentence of a fixed term lying in a standard range for that offense.15 In Blakely, for instance, Washington's scheme prescribed a "standard range" of 49 to 53 months for the defendant's conviction of second-degree kidnapping with a firearm.16 A judge was authorized to depart beyond the standard range on the basis of "`substantial and compelling reasons justifying an exceptional sentence.'"17 The statute permitted the reasons for departure to be based on facts found by the sentencing judge.18 In Blakely, the judge sentenced the defendant to an exceptional 90-month sentence on the basis of the judge's finding that the defendant perpetrated the kidnapping with "deliberate cruelty."19 Accordingly, the

See People v Drohan, 475 Mich 140, 159-160; 715 NW2d 778 (2006), citing Claypool, supra at 730 n 14.
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Blakely, supra at 299, citing Wash Rev Code 9.94A.320. Blakely, supra at 299, citing Wash Rev Code 9.94A.120(2). Blakely, supra at 299, citing Wash Rev Code 9.94A.120(3). Blakely, supra at 300.

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sentence violated the defendant's constitutional rights because it exceeded the fixed statutory maximum sentence range that was authorized solely by the facts that the defendant admitted when he pleaded guilty of second-degree kidnapping.20 In contrast, under an indeterminate scheme, a defendant receives a minimum sentence and a maximum sentence. In Michigan, for instance, the law provides that the maximum portion of a defendant's indeterminate sentence must be the "maximum penalty provided by law . . . ."21 As will be explained in detail

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Id. at 304-305.

MCL 769.8(1); Drohan, supra at 160. Michigan's habitual-offender statutes are an exception to the Legislature's requirement that the maximum portion of a defendant's indeterminate sentence be the maximum penalty provided by law. The habitual-offender statutes grant a sentencing judge the discretion to increase the maximum portion of a recidivist's indeterminate sentence beyond the statutory limit on the basis of the fact of a prior conviction, as permitted by Apprendi and Blakely. Id. at 161 n 13; MCL 769.10(1)(a) (upon a second felony conviction, a judge may impose a maximum sentence of up to 1

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