Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOSEPH ERIC DROHAN, Defendant-Appellant. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J.

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 JUNE 13, 2006

No. 127489

We granted leave to appeal to consider whether Michigan's indeterminate sentencing scheme, which allows a trial court to set a defendant's minimum sentence on the basis of factors determined by a preponderance of the evidence, violates the Sixth Amendment of the United States Constitution. Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, MCL 750.520d(1)(b), and one count of fourth-degree criminal sexual conduct, MCL 750.520e(1)(b). Defendant also pleaded guilty to a charge of being a third-offense habitual offender, MCL 769.11. The trial court sentenced

defendant to a term of 127 to 360 months of incarceration on the third-degree

criminal sexual conduct conviction. This range was calculated by the trial court's assignment of points to defendant's "offense variable" and "prior record variable" scores under a "preponderance of the evidence" standard. Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court's decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt. The Court of Appeals affirmed the

conviction, relying on this Court's decision in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). Because we conclude that Michigan's

sentencing scheme does not offend the Sixth Amendment,1 we affirm defendant's sentence.

The amicus curiae brief of the Criminal Defense Attorneys of Michigan at page 11 points out that the guidelines' "intermediate sanctions" establish fixed and determinate sentences. MCL 769.34(4)(a) states: If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less. Because defendant here was not subject to an intermediate sanction, we decline to address whether and to what extent Blakely affects the intermediate sentencing scheme.

1

2


I. BACKGROUND
The victim in this case and defendant were coworkers. She testified that defendant sexually assaulted her on four separate occasions between July 17, 2002, and October 25, 2002. The first incident took place on July 17, when defendant asked the victim to assist him with his computer at his cubicle. While there, defendant grabbed her hand and placed it on his clothed penis. In addition, defendant rubbed her clothed breast. The second incident occurred on July 19 at about 2:00 p.m. At that time, defendant entered the victim's cubicle, again

grabbed her hand and placed it over his penis, and made a sexual comment. The third incident occurred at around 4:00 p.m. on that same day. The victim testified that defendant accosted her in the parking garage and forced her into his car. Defendant demanded oral sex, and, when she refused, he grabbed the back of her head and forced her to perform oral sex until he ejaculated. The final incident took place on October 25 while the company was moving its office to a new location. As the victim moved things out of her cubicle, defendant entered,

grabbed her hand and placed it over his penis, and made a sexual comment. The victim did not report any of these incidents until after defendant left the company. Defendant was prosecuted for one count of third-degree criminal sexual conduct and two counts of fourth-degree criminal sexual conduct. The jury convicted defendant of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. Following the verdict, defendant pleaded guilty of being a third-offense habitual offender, MCL 769.11. 3


At sentencing, the trial court scored ten points for offense variable 4 (psychological injury to a victim) and 15 points for offense variable 10 (exploitation of a vulnerable victim).2 Defendant's total score placed him in the C-V cell,3 and the trial court sentenced him at the high end of the guidelines to a minimum term of 127 months and a maximum term of 360 months on the thirddegree criminal sexual conduct conviction.4 Defendant was also sentenced to a concurrent term of 12 to 48 months on the fourth-degree criminal sexual conduct conviction. Defendant appealed, asserting that his minimum sentence violated the United States Supreme Court's decision in Blakely because it was based on judicially ascertained facts that had not been determined by the jury beyond a reasonable doubt. Pursuant to Claypool, the Court of Appeals affirmed

defendant's convictions and sentence, observing that Blakely does not apply to Michigan's sentencing scheme. People v Drohan, 264 Mich App 77, 89 n 4; 689

Defendant successfully challenged the scoring of 15 points for offense variable 8 (victim asportation or captivity). The trial court scored offense variable 8 at zero points. The reduction of 15 points did not alter the guidelines range.
3 4

2

The minimum sentence range in the C-V cell is 51 months to 127 months.

As a third-offense habitual offender, defendant was subject to "imprisonment for a maximum term that is not more than twice the longest term prescribed by law for a first conviction of that offense . . . ." MCL 769.11(1)(a). The maximum term for a first conviction of third-degree criminal sexual conduct is 15 years. MCL 750.520d(2). Therefore, the maximum term for a third-offense habitual offender is 30 years.

4


NW2d 750 (2004).5

This Court granted defendant's application for leave to

appeal, limited to the issue whether Blakely applies to Michigan's sentencing scheme. 472 Mich 881 (2005). II. STANDARD OF REVIEW The issue in this case concerns whether Michigan's sentencing scheme violates the Sixth Amendment of the United States Constitution because it permits a defendant's minimum sentence to be determined on the basis of facts not proven to the jury beyond a reasonable doubt. A Sixth Amendment challenge presents a question of constitutional law that we review de novo. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). III. ANALYSIS A. UNITED STATES SUPREME COURT The Sixth Amendment of the United States Constitution states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation . . . . The United States Supreme Court first addressed the Sixth Amendment implications of the enhancement of a defendant's sentence based on judicially

The Court of Appeals rejected defendant's argument that Claypool was not binding. However, the Court went on to note that "given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent." Id. (emphasis omitted).

5

5


ascertained facts in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986). In McMillan, a Pennsylvania statute imposed a five-year mandatory minimum sentence if the trial court concluded, by a preponderance of the evidence, that a defendant "`visibly possessed a firearm'" during the commission of an enumerated felony. Id. at 81. However, the sentencing statute did not permit a sentence in excess of the maximum established for the enumerated felonies.6 The defendants, relying on In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970),7 argued that the visible possession of a firearm constitutes an element of the offense, and, therefore, must be proven beyond a reasonable doubt. The Court, while noting that the Pennsylvania statute provided that the possession of a firearm was "not an element of the [enumerated] crimes," McMillan, supra at 85-86, opined that this provision did not "relieve the

At the time, Pennsylvania law provided that a mandatory minimum sentence "`shall not exceed one-half of the maximum sentence imposed.'" Id. at 88 n 4, quoting 42 Pa Cons Stat 9756(b). In In re Winship, the United States Supreme Court addressed the issue whether the "proof beyond a reasonable doubt" standard applies to determinations of delinquency where a minor is charged with an act that would constitute a crime if committed by an adult. The Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364. The Court reasoned that adjudications of delinquency, like criminal convictions, deprive a minor of his or her liberty for some period and, therefore, that such adjudications are "`comparable in seriousness to a felony prosecution.'" Id. at 366 (citation omitted). Accordingly, every fact necessary to adjudicate a minor as delinquent must be proven by the state beyond a reasonable doubt. Id. at 368.
7

6

6


prosecution of its burden of proving guilt . . . ." Id. at 87. Nonetheless, the Court found it significant that the statute neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. [Id. at 87-88.] The Court went on to note that the defendants' claims "would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment . . . ." Id. at 88. However, the Pennsylvania statute merely raised the minimum sentence that could be imposed by the trial court. Because the minimum sentence did not alter the maximum penalty authorized by the jury's verdict, the statute did not violate the Constitution. While McMillan sanctioned the use of judicially ascertained facts to establish a minimum sentence, the United States Supreme Court, in Jones v United States, 526 US 227, 239; 119 S Ct 1215; 143 L Ed 2d 311 (1999), stated that the use of such facts to increase the maximum sentence posed "`grave and doubtful constitutional questions . . . .'" (Citation omitted.) In Jones, the defendant was convicted of violating the federal carjacking statute. The statute called for a 15year maximum, but also provided for a 25-year maximum where the victim suffered serious bodily injury, and a potential life term where the victim was killed. 18 USC 2119. The trial court imposed a 25-year sentence, determining by a preponderance of the evidence that the victim had suffered "serious bodily injury." The defendant argued that the statute created three distinct offenses, 7


while the prosecutor argued that the statute created a single crime with the choice of three maximum penalties. In analyzing which interpretation of the statute should prevail, the Court observed that, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government's reading of the [carjacking] statute rises only to the level of doubt, not certainty. [Jones, supra at 243 n 6.] As a result of these concerns, the Court held that the statute established three separate offenses and, therefore, reversed the defendant's conviction. The following year, in Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court acted on the concerns it had expressed in Jones. In Apprendi, the defendant was sentenced to an additional two years above the statutory maximum, on the basis of the trial court's determination by a preponderance of the evidence that the defendant had acted with an intent to intimidate an individual based on that individual's race. The Court undertook its analysis by noting that the Fourteenth Amendment "due process" clause and the Sixth Amendment "right to jury trial," considered together, "indisputably entitle a criminal defendant to `a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Id. at 477, quoting United States v Gaudin, 515 US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995). At the time of the American Revolution,

8


a trial court had very little discretion in sentencing. Apprendi, supra at 479. Rather, there was generally a specific sanction for each criminal offense-- a sanction determined by a jury's verdict. Id. The Court explained that, during this period, where a statute created a higher degree of punishment than the common law, the prosecutor "must expressly charge it to have been committed under those circumstances [established in the statute], and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170]." Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, "upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only." Id. at 188. [Apprendi, supra at 480-481.] The 19th century shift away from fixed sentences gave trial courts increasingly broad discretion in sentencing. However, such discretion was limited by "`fixed statutory or constitutional limits.'" Id. at 482, quoting Williams v New York, 337 US 241, 247; 69 S Ct 1079; 93 L Ed 1337 (1949). Thus, just as in revolutionary times, a defendant's maximum sentence was fixed by the maximum sentence permitted at the time of the jury's verdict. In contrast, the New Jersey statute permitted a trial court to sentence a defendant beyond the maximum fixed by the statute that served as the basis for the jury's conviction. The Court stated: If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not -- at the moment the State is put to proof of those circumstances -- be deprived of protections that have, until that point, unquestionably attached. [Apprendi, supra at 484.] 9


Accordingly, the Court held that under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Thus, any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict[,]" id. at 494, is an element of the crime that must be proven beyond a reasonable doubt. Conversely, a fact "that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense[,]" id. at 494 n 19 (emphasis in the original), is a sentencing factor that does not implicate the Sixth Amendment. The United States Supreme Court reinforced this decision two years later, in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524 (2002). In Harris, the defendant pleaded guilty of distribution of marijuana. At

sentencing, the trial court determined by a preponderance of the evidence that the defendant had brandished a firearm during the drug transaction and, as a result, imposed a seven-year minimum, as required under 18 USC 924 (c)(1)(A)(ii).8 The

The statute, which has not been amended in any relevant manner since Harris, states in pertinent part: [A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -(continued...) 10


8

trial court did not alter the defendant's maximum sentence. The defendant argued that the imposition of a minimum sentence violated Apprendi and that, as a result, McMillan was no longer sound authority. Justice Kennedy, writing for a fourjustice plurality, noted that the Sixth Amendment requires that "`any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Harris, supra at 563, quoting Apprendi, supra at 490. However, once the defendant has been convicted of an offense, "the Government has been authorized to impose any sentence below the maximum." Harris, supra at 565. The defendant also argued that mandatory minimum sentences violated "the concerns underlying Apprendi," id., because they require a trial court to impose a sentence even if it would have otherwise chosen a lower sentence. However, Justice Kennedy noted that "[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." Id. at 566, quoting Apprendi, supra at 498 (Scalia, J., concurring) (emphasis omitted). Justice Kennedy concluded: (...continued) (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

11


Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion -- and rely upon judicial expertise -- by requiring defendants to serve minimum terms after judges make certain factual findings. [Harris, supra at 567.][9] The United States Supreme Court clarified the importance of the term "statutory maximum" within the meaning of sentencing guidelines in Blakely. In that case, the defendant pleaded guilty to a charge of second-degree kidnapping. While the statute called for a ten-year maximum sentence, under Washington's sentencing guidelines scheme, the defendant was subject to a fixed sentence within a "standard range" of between 49 to 53 months. The guidelines statute permitted a trial court to depart above the guidelines maximum, up to the statutory maximum of ten years, if it found "substantial and compelling" reasons to do so. The trial court determined that the defendant acted with "deliberate cruelty" and, therefore, sentenced him to 90 months-- 37 months beyond the standard maximum. The Justice Breyer, one of the dissenting justices in Apprendi, concurred in the judgment in Harris, stating: I continue to believe that the Sixth Amendment permits judges to apply sentencing factors -- whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). And because I believe that extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences, I cannot yet accept its rule. I therefore join the Court's judgment, and I join its opinion to the extent that it holds that Apprendi does not apply to mandatory minimums. [Id. at 569-570 (Breyer, J., concurring in part and concurring in the judgment).]
9

12


prosecutor argued that the sentence was consistent with Apprendi because it fell below the ten-year statutory maximum. However, the Court noted: [T]he "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. [Blakely, supra at 303-304 (emphasis in the original).] The defendant's prior convictions and the facts elicited from his guilty plea, by themselves, could not have supported the imposition of the 90-month sentence. Id. at 304. Therefore, "the State's sentencing procedure did not comply with the Sixth Amendment, [and the defendant's] sentence is invalid." Id. at 305.

However, the Sixth Amendment does not prohibit all judicial fact-finding. In addressing indeterminate sentencing schemes,10 the Court stated: [T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on

An indeterminate sentence is one "of an unspecified duration, such as one for a term of 10 to 20 years." Black's Law Dictionary (8th ed). In other words, while a defendant may serve a sentence of up to 20 years, the defendant may be released from prison at the discretion of the parole board at any time after the defendant serves the ten-year minimum. In contrast, a determinate sentence is "[a] sentence for a fixed length of time rather than for an unspecified duration." Id. Such a sentence can either be for a fixed term from which a trial court may not deviate, see, e.g., MCL 750.227b(1) ("A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony . . . shall be imprisoned for 2 years."), or can be imposed by the trial court within a certain range, e.g., Blakely, supra at 300 (stating that, under Washington's sentencing act, the defendant was entitled to a sentence within a range of 49 to 53 months.)

10

13


the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury's traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence--and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury. [Id. at 308-309 (emphasis in the original).] Last year, the United States Supreme Court applied the Sixth Amendment to the federal sentencing guidelines in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). In Booker, the defendant was convicted of possession with intent to distribute at least 50 grams of crack cocaine. The evidence elicited at trial established that he had possessed 92 grams of cocaine. The statute called for a minimum sentence of ten years in prison and a maximum sentence of life in prison. 21 USC 841(b)(1)(A)(iii). On the basis of the

defendant's criminal history and the quantity of drugs that the jury found that he possessed, the sentencing guidelines dictated a sentence of 210 to 262 months in prison. At sentencing, the trial court found two additional facts by a

preponderance of evidence: (1) that the defendant had possessed an additional 566 grams of crack cocaine, and (2) that the defendant had also committed obstruction of justice. Those findings mandated that the trial court select a sentence between 14


360 months and life imprisonment, and the court imposed a sentence of 360 months in prison. Just as in Blakely, the Court focused on the mandatory nature of the sentencing guidelines. Booker, supra at 749-750. Solely on the basis of the defendant's criminal history and the facts supported by the jury's verdict, the trial court could not have imposed the 360-month sentence. Id. at 751. The Court concluded that, just as in Blakely, "the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases. [Id., quoting Blakely, supra at 305 (citation omitted).] Therefore, the Court "reaffirm[ed] [its] holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, supra at 756. However, just as in Blakely, the Court did not hold that all judicial fact-finding violates the Sixth Amendment. Indeed, the Court clarified that, [i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. . . . For when a trial judge exercises his discretion to select a specific sentence within a

15


defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. [Id. at 750.][11] The constitutional rule of Apprendi, Blakely, and Booker can be summarized as follows: (1) a trial court may not impose a sentence greater than the statutory maximum unless it does so on the basis of a prior conviction or the fact at issue is "admitted by the defendant or proved to a jury beyond a reasonable doubt[,]" Booker, supra at 756; (2) where a defendant's maximum sentence is calculated through the use of mandatory sentencing guidelines, the statutory maximum is the maximum sentence that may be imposed under those guidelines, based solely on the defendant's prior convictions and those facts proven beyond a reasonable doubt, Blakely, supra at 303-304; and (3) a trial court may consider facts and circumstances not proven beyond a reasonable doubt in imposing a sentence within the statutory range, McMillan, supra; Harris, supra; Booker, supra. B. AFTERMATH State courts, consistently with Apprendi, Blakely, and Booker, have held that that the Sixth Amendment bars the use of judicially ascertained facts to increase a defendant's sentence only when that sentence is increased beyond the "statutory maximum." For example, the New Jersey Supreme Court recognized in

In a separate majority opinion, authored by Justice Breyer, the Court limited application of its opinion to the portion of the sentencing guidelines that made them mandatory. As a result, the federal guidelines are now advisory. Id. at 756-757.

11

16


State v Abdullah, 184 NJ 497; 878 A2d 746 (2005), that the applicability of Blakely hinges on the question whether the trial court uses judicially ascertained facts to impose a sentence above the statutory maximum. In Abdullah, the

defendant was convicted of murder and two counts of second-degree burglary. The defendant was sentenced to life imprisonment with a 30-year parole disqualifier on the murder conviction and to a consecutive ten-year prison term with a five-year parole disqualifier on the burglary convictions. Under New Jersey law, a defendant convicted of burglary is entitled to a presumptive sentence of seven years. Id. at 503. Because the defendant was entitled to no more than the seven-year sentence for burglary on the basis of the jury's verdict alone, imposition of the ten-year sentence on the basis of judicially ascertained facts was "`incompatible with the holdings in [Apprendi, Blakely, and Booker]. '" Id. at 505 (citation omitted). On the other hand, the court noted that there is no presumptive term for murder. Id. at 504. "`[B]ecause the crime of murder has no presumptive term, defendant, like every murderer, knows he is risking life in prison.'" Id. at 508 (citation omitted). Thus, the upper sentencing limit based on the jury's

verdict alone was life imprisonment. Accordingly, the murder sentence was not in derogation of the Sixth Amendment. See also State v Stover, 140 Idaho 927, 931; 104 P3d 969 (2005) (stating that "[t]he Blakely Court recognized that an indeterminate sentencing system does not violate the Sixth Amendment"); State v Rivera, 106 Hawaii 146, 157; 102 P3d 1044 (2004) (noting that "the Blakely majority's declaration that indeterminate sentencing does not abrogate the jury's 17


traditional factfinding function effectively excises indeterminate sentencing schemes such as Hawaii's from the decision's sixth amendment analysis"); Commonwealth v Junta, 62 Mass App Ct 120, 129 n 11; 815 NE2d 254 (2004) (finding that "[t]he recent United States Supreme Court decision in [Blakely] has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences"). The courts in Pennsylvania, a state with a sentencing scheme bearing a strong resemblance to Michigan's, have also held that the use of judicially ascertained facts to increase a defendant's minimum sentence is permitted by the Sixth Amendment. The Pennsylvania Superior Court addressed the implications of Blakely on its sentencing scheme in Commonwealth v Smith, 863 A2d 1172 (Pa Super, 2004). In Smith, the defendant claimed that Pennsylvania's sentencing scheme violated Blakely, because it allowed a trial court to use judicially ascertained facts to increase the defendant's minimum sentence. rejected this claim, noting that Pennsylvania utilizes an indeterminate sentencing scheme with presumptive sentencing guidelines which limit the judge's discretion only concerning the minimum sentence. 42 Pa. C.S.A.

Download PEOPLE OF MI V JOSEPH ERIC DROHAN.pdf

Michigan Law