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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RAYMOND A. MCCULLER, 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 JUNE 13, 2006

No. 128161

BEFORE THE ENTIRE BENCH MEMORANDUM OPINION. Defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84, following a jury trial. The properly scored

recommended minimum sentence guidelines range for defendant's offense provided for a term of five to 28 months' imprisonment, thus placing defendant in a so-called "straddle cell."1 The trial court sentenced defendant within the

When a defendant is placed in a "straddle cell," the sentencing court has the option of imposing an intermediate sanction or a prison term. MCL 769.34(4)(c) provides: If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended (continued...)

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guidelines range to two to 15 years of imprisonment. On appeal, defendant argues that because his prior record variable (PRV) score alone placed him in a recommended minimum guidelines range of zero to 11 months, he is entitled to an intermediate sanction.2 Defendant contends that the trial court violated Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), by engaging in judicial fact-finding to score the offense variables (OVs), thereby allegedly increasing his maximum sentence from an intermediate sanction to a prison term. We reject defendant's and the dissent's contention and affirm defendant's sentence. In Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court held that under the Sixth and Fourteenth amendments of the United States Constitution, "[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

(...continued) minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure: (i) To imprisonment with a minimum term within that range. (ii) To an intermediate sanction that may include a term of imprisonment of not more than 12 months. When the upper limit of the guidelines range is 18 months or less, the sentencing court must impose an intermediate sanction. MCL 769.34(4)(a). An "intermediate sanction" can mean a number of things, but excludes a prison (continued...)
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reasonable doubt." In Blakely, supra at 303, the Court held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Emphasis deleted.) In regard to indeterminate sentencing schemes such as Michigan's, the Blakely Court reaffirmed that a sentencing court may engage in judicial fact-finding in order to impose a minimum term within the statutory range. See People v Drohan, 475 Mich ___; ___ NW2d ___ (2006) (Docket No. 127489, decided June 13, 2006). The Blakely Court explained: 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. [Blakely, supra at 309 (emphasis in original).] Thus, a sentencing court in an indeterminate sentencing scheme does not violate Blakely by engaging in fact-finding to determine the minimum term of a defendant's indeterminate sentence unless the fact-finding increases the statutory maximum sentence to which the defendant had a legal right. In Michigan, when the high end of the recommended minimum guidelines range is 18 months or less, MCL 769.34(4)(a) requires a sentencing court, absent

(...continued)
sentence. People v Stauffer, 465 Mich 633, 635; 640 NW2d 869 (2002); MCL
769.31(b).


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articulation of substantial and compelling reasons, to impose an intermediate sanction, which may include a jail term of no more than 12 months: 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. [Emphasis added.] MCL 777.21 explicitly requires the court to consider the OVs, the PRVs, and the offense class to determine a defendant's recommended minimum guidelines range.3 Under our statutory scheme, a defendant has no legal right to have the
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MCL 777.21(1) provides:

For an offense enumerated in part 2 of this chapter, determine the recommended minimum sentence range as follows: (a) Find the offense category for the offense from part 2 of this chapter. From section 22 of this chapter, determine the offense variables to be scored for that offense category and score only those offense variables for the offender as provided in part 4 of this chapter. Total those points to determine the offender's offense variable level. (b) Score all prior record variables for the offender as provided in part 5 of this chapter. Total those points to determine the offender's prior record variable level. (c) Find the offense class for the offense from part 2 of this chapter. Using the sentencing grid for that offense class in part 6 of this chapter, determine the recommended minimum sentence range from the intersection of the offender's offense variable level and prior record variable level. The recommended minimum sentence within a sentencing grid is shown as a range of months or life.

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minimum sentence calculated using only a fraction of the statutorily enumerated factors. Thus, under MCL 769.34(4)(a), a defendant is not legally entitled to an intermediate sanction until after the OVs have been scored and those OVs, in conjunction with the PRVs and the offense class, indicate that the upper limit of the defendant's guidelines range is 18 months or less. In other words, a

defendant's legal right to an intermediate sanction arises from properly scored guidelines, including the scoring of the OVs. A sentencing court does not violate Blakely and its progeny by engaging in judicial fact-finding to score the OVs to calculate the minimum recommended sentencing guidelines range, even when the defendant's PRV score alone would have placed the defendant in an intermediate sanction cell.4 In this case, properly scored guidelines placed defendant in a recommended minimum sentence range of five to 28 months in prison. This placed defendant in a "straddle cell," in which the trial court was permitted to choose between imposing an intermediate sanction or a prison term. MCL 769.34(4)(c). Thus, defendant faced a statutory maximum sentence of 15 years in prison for his
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Contrary to the dissent's contention, our holding is consistent with Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002). In Ring the Court held that Arizona's sentencing scheme violated the defendant's Sixth Amendment rights where the sentencing court increased the defendant's statutory maximum sentence of life imprisonment to a death sentence on the basis of a judicial finding of aggravating factors. This case does not involve an increase of defendant's statutory maximum sentence on the basis of judicial findings. Instead, the trial court merely scored defendant's OVs before imposing a sentence within the statutory range.

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conviction of assault with intent to do great bodily harm less than murder as a second-offense habitual offender, MCL 750.84; MCL 769.10. Because the

properly scored guidelines range did not entitle defendant to an intermediate sanction, the trial court did not violate Blakely by scoring the OVs before imposing a prison sentence within the guidelines. defendant's sentence. In all other respects, defendant's application for leave to appeal is denied, because we are not persuaded that this Court should review the remaining questions presented. Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Accordingly, we affirm

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STATE OF MICHIGAN SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V RAYMOND A. MCCULLER, Defendant-Appellant. No. 128161

KELLY, J. (dissenting). This case provides the Court an opportunity to fully and carefully explore the effects on Michigan's sentencing guidelines1 of the United States Supreme Court decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). It presents an important Blakely problem: whether judicial factfinding that increases a person's sentence by moving it from an intermediate sanction cell to a straddle cell violates the person's Sixth Amendment2 right to trial
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MCL 777.1 et seq. The Sixth Amendment of the United States Constitution provides:

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; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [US Const, Am VI.]

by jury. I have concluded that it does. Hence, I would rule that Michigan's sentencing guidelines are unconstitutional as applied. Because a Blakely violation occurred here, I would remand the case to the trial court so that defendant could be resentenced. PROCEDURAL FACTS A jury found defendant Raymond McCuller guilty of assault with intent to do great bodily harm less than murder. MCL 750.84. In arriving at its sentence, the trial court followed these steps: Because defendant had previously been

convicted of a misdemeanor, the judge scored two points for the prior record variables (PRVs). He also scored 36 points for the offense variables (OVs). He did this by making certain findings of fact. He found that the victim had been touched by a weapon, other than a gun or knife, and scored OV 1 at ten points. MCL 777.31. He found that defendant had possessed a potentially lethal weapon and scored OV 2 at one point. MCL 777.32. He found that the victim had suffered a life threatening or permanent incapacitating injury, and scored OV 3 at 25 points. MCL 777.33. The sentencing guidelines statutes make assault with intent to do great bodily harm less than murder a class D offense. MCL 777.16d. In the guidelines class D sentencing grid, a PRV level of two points and an OV level of 36 points placed defendant in the B-IV cell. This cell provides a minimum sentence range

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of five to 23 months. MCL 777.65.3 Because defendant had a prior conviction, the judge increased the top number by 25 percent to 28 months. MCL

777.21(3)(a).4 The range for his minimum sentence became five to 28 months. Accordingly, the judge sentenced defendant within this range to a minimum of two years' imprisonment. After the sentencing and before defendant filed his claim of appeal, the United States Supreme Court released its decision in Blakely. Defendant could not have raised a Blakely issue at his sentencing. But he did raise the issue in his
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This cell is what is often referred to as a "straddle cell." See People v Stauffer, 465 Mich 633, 636 n 8; 640 NW2d 869 (2002). Straddle cells are addressed at MCL 769.34(4)(c), which provides: If the upper limit of the recommended minimum sentence exceeds 18 months and the lower limit of the recommended minimum sentence is 12 months or less, the court shall sentence the offender as follows absent a departure: (i) To imprisonment with a minimum term within that range. (ii) To an intermediate sanction that may include a term of imprisonment of not more than 12 months.
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MCL 777.21(3) provides, in relevant part:

If the offender is being sentenced under section 10, 11, or 12 of chapter IX, determine the offense category, offense class, offense variable level, and prior record variable level based on the underlying offense. To determine the recommended minimum sentence range, increase the upper limit of the recommended minimum sentence range determined under part 6 for the underlying offense as follows: (a) If the offender is being sentenced for a second felony, 25%.

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appeal to the Court of Appeals. Unfortunately, that Court did not directly address the issue. Instead, it relied on our dicta discussion of the subject contained in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). As a result, it found that defendant was not entitled to resentencing. People v McCuller,

unpublished opinion per curiam of the Court of Appeals, issued January 11, 2005 (Docket No. 250000). Originally, this Court held the case in abeyance for the matter of People v Drohan, 472 Mich 881 (2005). Later, we scheduled oral argument for the purpose of determining whether to grant the application or take other peremptory action pursuant to MCR 7.302(G)(1). We specifically ordered the parties to address the effect of Blakely on defendant's sentence. Unfortunately, in its opinion, the

majority fails to recognize the effects of Blakely on defendant's sentence. MICHIGAN'S SENTENCING SCHEME MCL 769.8 lays out the basics of Michigan's statutory sentencing scheme: (1) When a person is convicted for the first time for committing a felony and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence. (2) Before or at the time of imposing sentence, the judge shall ascertain by examining the defendant under oath, or otherwise, and by other evidence as can be obtained tending to indicate briefly the causes of the defendant's criminal character or conduct, which facts and other facts that appear to be pertinent in the case the judge shall cause to be entered upon the minutes of the court.

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Therefore, generally, a court's initial attention when sentencing must be on determining the minimum sentence. That sentence must be within the range set by the sentencing guidelines unless substantial and compelling reasons to depart from the range are shown. MCL 769.34(2) and (3). Typically in Michigan, the

maximum sentence is established by statute. For instance, MCL 750.84 provides that the maximum sentence for assault with intent to do great bodily harm less than murder is ten years or a fine of $5,000. Unless a defendant has habitualoffender status, the sentencing court cannot exceed the maximum sentence provided by statute.5 There are exceptions to the general rule that the court's focus in sentencing is only on the minimum sentence. With respect to certain offenses, the Legislature has specified a determinate sentence.6 sentence that falls within a range. They require a specific sentence, not a For instance, the offense of carrying or

possessing a firearm when committing or attempting to commit a felony (felonyfirearm) has a mandatory determinate sentence of two years. A second conviction for felony-firearm requires a determinate five-year sentence. MCL 750.227b(1).

With respect to habitual offenders, MCL 769.10, MCL 769.11, and MCL 769.12 allow the maximum sentence to be increased. The new maximum set forth in these statutes is the absolute maximum to which the sentencing judge can sentence a defendant. In this case, because defendant was a second-offense habitual offender, the maximum possible sentence was 15 years. MCL 769.10(1)(a). Defendant received this maximum sentence. A "determinate sentence" is "[a] sentence for a fixed length of time rather than for an unspecified duration." Black's Law Dictionary (7th ed), p 1367.
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But, for purposes of this case, the most important exception to the general rule that trial judges calculate a defendant's minimum sentence involves intermediate sanction cells. INTERMEDIATE SANCTION CELLS If the trial court had not entered a score for OVs 1, 2, and 3, defendant's OV level would have dropped to zero. This would have moved him to the B-I cell. The B-I cell provides a sentencing range of zero to 11 months' imprisonment for a second-offense habitual offender. MCL 777.21(3)(a) and 777.65. Because its upper limit is under 18 months, the B-I cell is referred to as an "intermediate sanction cell." MCL 769.34(4)(a) provides: 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. MCL 769.31(b) further defines "intermediate sanction": "Intermediate sanction" means probation or any sanction, other than imprisonment in a state prison or state reformatory, that may lawfully be imposed. Intermediate sanction includes, but is not limited to, 1 or more of the following: (i) Inpatient or outpatient drug treatment or participation in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082 .

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(ii) Probation with any probation conditions required or authorized by law. (iii) Residential probation. (iv) Probation with jail. (v) Probation with special alternative incarceration. (vi) Mental health treatment. (vii) Mental health or substance abuse counseling. (viii) Jail. (ix) Jail with work or school release. (x) Jail, with or without authorization for day parole under 1962 PA 60, MCL 801.251 to 801.258. (xi) Participation in a community corrections program. (xii) Community service. (xiii) Payment of a fine. (xiv) House arrest. (xv) Electronic monitoring. When one reads these statutes together, it becomes apparent that intermediate sanction cells have a highly unusual role in Michigan's sentencing guidelines scheme. Once a defendant's minimum sentencing range falls within those cells, the guidelines no longer are concerned with the person's minimum sentence. Instead, under MCL 769.34(4)(a), the guidelines set the maximum sentence to which the defendant may be sentenced. That maximum is either the upper limit of the range of the recommended minimum sentence or 12 months in jail, whichever is shorter. The guidelines statutes do not permit a court to sentence

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to prison a defendant fitting within the intermediate sanction cells. The court is required to impose a maximum term of 12 months or less, unless it can state substantial and compelling reasons for a longer sentence. MCL 769.34(4)(a). In this case, the defendant's maximum sentence would have been 11 months in jail if the trial judge had not affixed a score to OVs 1, 2, and 3. By scoring the OVs after making judicial findings of fact, the judge moved defendant out of the intermediate sanction cell into a straddle cell. By that process, the judge sentenced defendant to a higher maximum sentence than he would have been able to on the basis of the jury verdict and defendant's criminal history alone. And the judge scored the OVs after making his own findings of fact, findings not made by the jury. It is under this setting that I address the applicability of the United States Supreme Court's decision in Blakely.7 THE HIGH COURT'S PRECEDENT REGARDING THE "STATUTORY MAXIMUM" The United States Supreme Court grappled over a long period with the judicial modification of sentences using facts found by a judge after a jury's verdict. These facts are known as "sentencing factors." In McMillan v

This Court considered the application of Blakely to standard sentencing guideline cases in People v Drohan, 475 Mich ___; ___ NW2d ___ (Docket No. 127489, decided June 13, 2006). My statement here should be read in tandem with my concurring/dissenting opinion in Drohan for a fuller discussion of the applicability of Blakely to Michigan's sentencing guidelines statutes.

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Pennsylvania,8 the Court addressed the constitutionality of Pennsylvania's mandatory minimum sentencing act, 42 Pa Cons Stat 9712 (1982). That act provided for a mandatory minimum sentence for certain felonies if the sentencing judge found, by a preponderance of the evidence, that the defendant "`visibly possessed a firearm' during the commission of the offense." Pennsylvania, 477 US 79, 81; 106 S Ct 2411; 91 L Ed 2d 67 (1986). The Court found that the visible-possession requirement was a mere sentencing factor that did not change the prosecution's burden of proving guilt beyond a reasonable doubt. Id. at 86-88. And it made another important point: there are constitutional limitations on the degree to which a state may whittle away the factual support needed to prove a criminal offense beyond a reasonable doubt. It also paid special attention to the fact that 42 Pa Cons Stat 9712 did not increase the maximum penalty faced by the defendant: Section 9712 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. [McMillan, supra at 87-88.] The Supreme Court returned to the discussion of sentencing factors in Jones v United States, 526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999). In that case, the Court addressed whether the federal carjacking statute9 constituted
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McMillan v

477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986). 18 USC 2119. At the time, the statute provided: (continued...) 9


three separate crimes or one crime with sentencing factors that increased the maximum penalty. Id. at 229. The Court concluded that a fair reading of the statute required it to find three separate offenses. But it went on to discuss alternative reasons under constitutional law for requiring that all the "elements" be proven to a jury beyond a reasonable doubt. The Court's focus quickly centered on McMillan's discussion of an increase in the maximum penalty: The terms of the carjacking statute illustrate very well what is at stake. If serious bodily injury were merely a sentencing factor under

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