If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 25, 2022
Plaintiff-Appellee,
v No. 357903
Tuscola Circuit Court
KYLE RICHARD BEAUCHEMIN, LC No. 20-015256-FH
Defendant-Appellant.
Before: JANSEN, P.J., and O’BRIEN and HOOD, JJ.
HOOD, J. (concurring)
I respectfully concur in the result only. I would reverse on the basis that defendant Kyle
Richard Beauchemin’s objection to a probationary sentence and demand for a jail term barred the
trial court from sentencing him to a term of probation. People v Bensch, 328 Mich App 1, 7-12;
935 NW2d 382 (2019). The majority opinion would fault the sentencing court for failing to rely
on anticipated “good time” credit to conclude that Beauchemin reached his statutory maximum
jail term. Such sentencing considerations, however, are impermissible. See People v Fleming,
428 Mich 408, 424-427; 410 NW2d 266 (1987) (holding that “enhancing a defendant’s sentence
on the basis of anticipated good-time reductions is . . . improper.”). The trial court correctly
concluded that Beauchemin had not reached his statutory maximum, which was 20 days beyond
the sentence it imposed.
I. BACKGROUND
The majority opinion accurately describes the factual and procedural background.
Critically, at Beauchemin’s original sentencing hearing, he objected to probation and demanded
that the trial court sentence him to a term of incarceration. Over his objection, the trial court
sentenced Beauchemin to two years’ probation and 345 days’ incarceration, with credit for 339
days served for the larceny conviction, and 93 days’ incarceration, with credit for time served, for
the domestic violence and assault and battery convictions, before resentencing Beauchemin to two
years’ probation with no jail time.
II. LAW AND ANALYSIS
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The trial court did not err in concluding that Beauchemin had not yet served the statutory
maximum jail sentence for his larceny conviction. Although Beauchemin may have ultimately
received a reduction for good behavior, see MCL 51.282, it would have been improper for the trial
court to consider such possible reductions as a sentencing factor, Fleming, 428 Mich at 424-427.
The trial court, however, erred in both the original sentence and amended sentence by sentencing
Beauchemin to a term of probation when he objected to probation and demanded a jail term.
Bensch, 328 Mich App at 7-13.
“We review de novo constitutional challenges to sentencing decisions.” People v Posey,
334 Mich App 338, 355; 964 NW2d 862 (2020). A “trial court’s decision about the sentence
imposed is reviewed for an abuse of discretion.” People v Rydzewski, 331 Mich App 126, 132;
951 NW2d 356 (2020) (quotation marks and citations omitted). We review questions of law, such
as issues of statutory construction, de novo. Bensch, 328 Mich App at 4 n 2.
A. IMPERMISSIBLE SENTENCING CONSIDERATIONS
At the threshold, I disagree with the majority’s conclusion that the trial court erred by
imposing a sentence of probation when, based on anticipated good time credits, Beauchemin would
have already served the statutory maximum term of incarceration. This conclusion not only
depends on this Court and the sentencing court accepting an estimate of Beauchemin’s good time
credits, but it also requires the trial court to rely on an impermissible sentencing factor. See
Fleming, 428 Mich at 424-427 (holding that the possibility of early release by virtue of good time
credits may not be used to enhance a defendant’s sentence).
The majority relies on People v Bisogni, 132 Mich App 244, 246-247; 347 NW2d 739
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(1984), for the principle that a sentencing court may not sentence a defendant to probation when
he has already served the statutory maximum jail term associated with his charge. In Bisogni, the
defendant was convicted of conspiracy to commit larceny under $100, MCL 750.157a, and
sentenced to two years’ probation, with the first year in jail. Id. at 245. This Court partially vacated
the defendant’s sentence because once he served the one year of jail time imposed by the court—
the statutory maximum jail term—he could not then be required to serve any additional probation.
Id. at 246. As the majority correctly notes, the rationale was that even if the defendant violated
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As a decision issued on or before November 1, 1990, Bisogni is not binding on this Court, MCR
7.215(J)(1); People v Mathews, 324 Mich App 416, 428 n 4; 922 NW2d 371 (2018), and I am not
convinced that it was correctly decided. Panels of this Court have applied Bisogni to reach
different conclusions in factually similar cases. See, e.g., People v Jan, unpublished per curiam
opinion of the Court of Appeals, issued January 13, 1998 (Docket No. 196492) (holding that
sentence of two years’ probation with 90 days in jail was void ab initio, where the statutory
maximum jail term was 90 days); People v Trice, unpublished per curiam opinion of the Court of
Appeals, issued September 23, 2004 (Docket No. 247537) (holding that sentence of two years’
probation for a defendant convicted of a 90-day misdemeanor was valid, where defendant spent
over 200 days in jail awaiting trial but jail was not a condition of his term of probation). Because
Bisogni is not binding and the decisions applying it have reached various outcomes, I decline to
rely on it as persuasive authority.
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his term of probation, the court could not impose additional punishment for the violation because
such additional punishment would exceed the statute. Id. at 246-247, citing People v Sturdivant,
412 Mich 92; 312 NW2d 622 (1981). This Court in Bisogni vacated the defendant’s sentence to
the extent it would impose a period of probation after the defendant completed serving the one
year of imprisonment. Bisogni, 132 Mich App at 247.
Beauchemin is differently situated than the defendant in Bisogni because, unlike that
defendant, the jail term in Beauchemin’s original sentence was not the statutory maximum. The
sentencing court sentenced Beauchemin to two years’ probation with 345 days in jail as a
condition. His jail term was 20 days short of the statutory maximum. In Bisogni, the trial court
had no authority to sanction the defendant for probation violations that occurred after his one-year
jail term. Bisogni, 132 Mich App at 246-247. Here, Beauchemin would still be subject to up to
20 days in jail for a potential future probation violation. Therefore, his sentence could not be void
until his total jail time reached 365 days. For this reason, Bisogni is distinguishable.
The majority appears to resolve this difference by relying on Beauchemin’s anticipated
good-time credit. Acknowledging that good-time credit for jail sentences is a determination left
to the sheriff or jailor, see MCL 51.282, I also acknowledge that Beauchemin could effectively
“bank” good-time credit that he had accumulated awaiting sentence, see People v Resler, 210 Mich
App 24; 532 NW2d 907 (1995); see also People v Tyrpin, 268 Mich App 368; 710 NW2d 260
(2005). The sentencing court would have to apply this banked good-time credit toward sanctions
for future misconduct. Resler, 210 Mich App at 27-28 (concluding that a defendant is entitled to
good-time credit when his or her probation is revoked). This means that Beauchemin’s sentence
of two years’ probation with 345 days in jail, though not immediately void under the principles in
Bisogni, would become void as soon as Beauchemin violated probation and his banked good-time
credit applied. In short, unlike the defendant in Bisogni, Beauchemin’s sentence was not void on
the day of sentencing, but it would become void once the court had to apply banked good-time
credit toward a future probation violation. The majority opinion appears to expand Bisogni’s
application to include this situation.
The problem is that the majority opinion requires the sentencing court to consider
anticipated good-time credit in fashioning its sentence, which is illegal. See Fleming, 428 Mich
at 424-427. The sentencing court could not have considered anticipated credit for good behavior
in fashioning its sentence even if at a defendant’s request. See id. It is unlawful for a sentencing
court to rely on the possibility of good-time credits, early release, or disciplinary credits as an
aggravating sentencing factor. See id.; see also People v Lundy, 145 Mich App 847; 378 NW2d
622 (1985) (holding that a sentencing judge may not consider the possibility of a prisoner’s early
release under the Prison Overcrowding Emergency Powers Act, 1980 PA 519; MCL 800.71, as a
factor enhancing a sentence); People v Humble, 146 Mich App 198; 379 NW2d 422 (1985) (same).
Here, Beauchemin had spent 339 days in custody at the time of his sentencing, 26 days short of
the statutory maximum jail term for larceny. Because he had not yet served the statutory
maximum, the original sentence was not invalid.
Acknowledging that Beauchemin requested—and apparently preferred—a jail sentence, a
jail sentence is still harsher than probation. See Bensch, 328 Mich App at 7 (noting that probation
is a matter of grace). The court cannot rely on anticipated credit for good behavior to impose a
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harsher sentence. To reach this conclusion, the trial court would have had to consider an
impermissible sentencing consideration, which it correctly refused to do. This was not an error.
Because of the differences between Beauchemin’s case and Bisogni, in order to fit
Beauchemin into the Bisogni framework, the sentencing court would have to have considered
anticipated good-time credit, which is unlawful. See Fleming, 428 Mich at 424-427. This creates
a Catch-22, where the sentencing court would have to choose between committing one of two
errors. The sentencing court could follow Fleming and not consider how good-time credit would
impact his sentence. This would likely eventually result in a sentence that is void under the Bisogni
principles once Beauchemin’s banked good-time credit kicked in. Or the sentencing court could
consider anticipated good-time credit in contravention of Fleming and long-established precedent
to avoid this result. In my view, it is unnecessary for us to resolve this potential paradox because
Beauchemin’s original and amended sentence were both unlawful under Bensch, 328 Mich App at
10-13.
B. DECLINING A PROBATIONARY SENTENCE
The trial court erred by imposing a probationary sentence because such a sentence was
barred once Beauchemin objected to probation and requested incarceration. See Bensch, 328 Mich
App at 13; MCL 771.4(1). MCL 771.4(1) states: “It is the intent of the legislature that the granting
of probation is a matter of grace requiring the agreement of the probationer to its granting and
continuance.” In People v Peterson, 62 Mich App 258, 264-265; 233 NW2d 250 (1975), this
Court examined an earlier version of MCL 771.4 to analyze whether a probationer may reject
certain conditions of probation. After considering that statute, and the fact that “a probationer is
no less deprived of all constitutional guarantees than the one incarcerated pursuant to sentence[,]”
id. at 266, the Peterson Court determined that “[p]robation is a matter of grace and rejectable, we
think, at the option of the probationer,” id. at 265.
In applying the 2019 version of MCL 771.4(1), which merely stated “the granting of
probation is a matter of grace conferring no vested right to its continuance[,]” this Court in Bensch
relied on Peterson to conclude that a defendant may reject probation. Bensch, 328 Mich App at 7.
When asked to abandon the rule iterated in Peterson regarding a defendant’s ability to reject
probation, this Court noted that “the rule that defendants may reject probation has been accepted
and relied on in subsequent cases in which a defendant agreed to probation but objected to a
particular condition.” Id. Accordingly, this Court “decline[d] to simply abandon that rule without
a compelling reason to do so.” Id. at 9. This Court reaffirmed Peterson, and expressly stated that
“a defendant may decline a sentence of probation and instead seek a sentence of incarceration.”
Id. at 13.
This Court’s determination in Bensch is consistent with People v Oswald, 208 Mich App
444, 445-446; 528 NW2d 782 (1995), where this Court analyzed whether a fine imposed as a
condition of probation was limited to the maximum fine authorized under the statute of which the
defendant was convicted. The Oswald Court determined that the trial court was not limited to the
maximum fine authorized by the applicable statute, and further determined “had [the] defendant
found the term of probation to be overly onerous, he could have declined the grant of probation, . . .
and submitted himself for sentencing directly under the . . . statute . . . .” Id. at 446.
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The prosecution argues that this Court should overrule Peterson and Bensch, but Peterson
is not binding on this Court, and this Court cannot overrule Bensch. Under MCR 7.215(J)(1), “A
panel of the Court of Appeals must follow the rule of law established by a prior published decision
of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this
rule.” Bensch was issued in 2019, our Supreme Court has not overruled Bensch, and there are no
conflicts in this Court regarding that decision. Accordingly, this Court is bound by Bensch. MCR
7.215(J)(1).
The prosecution also appears to argue that trial court could simply ignore Bensch if there
were a “compelling reason to do so.” I disagree. The prosecution’s argument relies on one
sentence that appears to be misread or taken out of context. The Court in Bensch explained its
reasoning for adopting a longstanding rule of law that was not binding on the Court, stating:
Unpublished decisions of this Court have also relied on the fact that a
defendant agrees to probation in resolving challenges to orders of probation. These
decisions are not binding precedent, MCR 7.215(C)(1), but it is clear that the rule
that a defendant can elect to reject probation has been used by this Court (and
others) to dispose of arguments made by defendants challenging the terms of their
probation. Under these circumstances, we decline to simply abandon that rule
without a compelling reason to do so. [Bensch, 328 Mich App at 9 (citations
omitted; emphasis added).]
Later, the Court stated that the prosecution’s arguments were “not compelling reasons to depart
from the longstanding interpretation of MCL 771.1 . . . .” Id. at 13. In these statements, the Court
was explaining the reasoning for affirming a rule of law in a published decision. It was not stating
that trial courts could ignore this rule if there was a “compelling reason.” See id. at 9, 13. The
sentencing court in this case could not just ignore Bensch.
Under MCL 771.4(1), which expressly requires a defendant to agree to a grant of probation,
Bensch, and Oswald, Beauchemin was permitted to reject probation and request incarceration. In
a motion for personal bond or for immediate sentencing, which Beauchemin filed after the
conclusion of his jury trial, Beauchemin explicitly requested that the trial court impose a sentence
of incarceration. Although in his sentencing memorandum, which was filed after the motion for
immediate sentencing, Beauchemin requested probation, he objected to probation at sentencing,
in his motion for resentencing, and at the hearing on that motion. Because he objected to probation
and requested incarceration, the trial court erred in imposing a term of probation on Beauchemin.
Bensch, 328 Mich App at 13.
III. CONCLUSION
With respect, I agree with the result reached in the majority opinion that Beauchemin’s
sentence should be vacated and the court should sentence him to a term of incarceration, but on
the basis that his objection to a probationary sentence and demand for a jail term barred the trial
court from sentencing him to a term of probation.
/s/ Noah P. Hood
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