Order Michigan Supreme Court
Lansing, Michigan
May 1, 2009 Marilyn Kelly,
Chief Justice
137652 Michael F. Cavanagh
Elizabeth A. Weaver
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman
v SC: 137652 Diane M. Hathaway,
COA: 275215 Justices
Washtenaw CC: 05-001189-FH
DAVID KIRCHER,
Defendant-Appellant.
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On April 8, 2009, the Court heard oral argument on the application for leave to
appeal the August 14, 2008 judgment of the Court of Appeals. On order of the Court, the
application is again considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I would grant leave to appeal to consider whether the sentencing guidelines apply
to MCL 324.3115(4). On the one hand, MCL 777.13c states that the guidelines apply to
specifically listed felonies, including the offense specified in MCL 324.3115(4), which
suggests that the guidelines are applicable and that a conviction under § 3115(4) carries a
five-year indeterminate maximum sentence. On the other hand, MCL 324.3115(4) states
that the trial court “shall” impose a five-year term of imprisonment, which apparently
communicates a determinate sentence, thereby rendering the guidelines inapplicable
pursuant to MCL 769.34(5). Moreover, whether MCL 324.3115(4) effectively imposes a
determinate sentence for purposes of MCL 769.34(5) is placed into issue by the
Legislature’s use of substantially more definite language in other criminal statutes
imposing determinate sentences, e.g., MCL 750.227b (possession of a firearm during the
commission of a felony) (the defendant “shall” be sentenced to a “mandatory term” that
“shall not be suspended” and the defendant is “not eligible for parole.”); MCL 750.316(1)
and MCL 791.234(6) (murder) (the defendant “shall be punished by imprisonment for
life” and is “not eligible for parole.”); MCL 750.543f(2) (terrorism) (the defendant
“shall” be punished by imprisonment for life “without eligibility for parole.”). Because
of the substantial consequences for defendant’s term of incarceration, I would grant leave
to appeal to address this issue.
KELLY, C.J., and CAVANAGH, J., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 1, 2009 _________________________________________
p0428 Clerk