Order Michigan Supreme Court
Lansing, Michigan
January 25, 2008 Clifford W. Taylor,
Chief Justice
135066 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 135066
COA: 268152
Muskegon CC: 05-051910-FC
WILLIAM LEE LATHROP,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the August 21, 2007
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, we
VACATE the sentence of the Muskegon Circuit Court, and we REMAND this case to the
trial court for resentencing. Absent any indication in the record that the trial judge would
have departed upward to the same extent if the guidelines had been properly scored, the
prosecution’s admission that prior record variable 5, MCL 777.55, was improperly scored
establishes a plain error affecting the defendant’s substantial rights. Had prior record
variable 5 not been scored, the correct guidelines range was 108 to 180 months, rather
than the 126 to 210 months on which the decision to depart upward was based. The trial
court believed that it was departing upward by 30 months, when, in fact, the upward
departure was 60 months above the minimum sentence range under properly scored
sentence guidelines. Therefore, the defendant is entitled to relief under the rationale of
People v Francisco, 474 Mich 82 (2006), and People v Horan, 477 Mich 1062 (2007).
On remand, the trial court shall sentence the defendant within the appropriate sentencing
guidelines range, or articulate on the record a substantial and compelling reason for
departing from the sentencing guidelines range in accordance with People v Babcock,
469 Mich 247 (2003).
We do not retain jurisdiction.
WEAVER, J., concurs and states as follows:
2
I concur in the order remanding this case for resentencing because the sentencing
judge did not specifically state that, despite the scoring error, he would have imposed the
same upward sentencing departure.
For the reasons stated in my concurrence/dissent in People v Babcock, 469 Mich
247, 280 (2003), I continue to believe that Babcock, People v Reincke, 469 Mich 957
(2003) (Weaver, J., dissenting), and People v Francisco, 474 Mich 82, 93-95 (2006)
(Corrigan, J., dissenting, joined by Weaver, J.), were wrongly decided.
Further, I agree with and join the following portions of Justice Young’s
concurrence in this case:
I write to provide a suggestion to sentencing courts that will
hopefully curtail the cycle of appellate sentencing litigation that this
Court’s prior decisions have created. This Court has, through a series of
recent decisions, construed the statutory sentencing guidelines in such a
fashion that even modal defects necessitate resentencing. I do not believe
that the sentencing guidelines warrant such a construction or result.
In People v Babcock, this Court held that
“if the trial court articulates multiple reasons, and the Court of
Appeals . . . determines that some of these reasons are
substantial and compelling and some are not, and the Court of
Appeals is unable to determine whether the trial court would
have departed to the same degree on the basis of the
substantial and compelling reasons, the Court must remand
the case to the trial court for resentencing or rearticulation.”
I joined Justice Corrigan in her partial dissent in Babcock because I shared
her belief that the remand requirement stated therein was inconsistent with
the language of MCL 769.34(11). . . . I respectfully continue to believe that
most remands mandated by this Court’s holding in Babcock are
unnecessary and not mandated by the statutory guidelines.
In a similar vein, this Court, in People v Francisco, mandated a
remand for resentencing anytime an appellate court finds “‘an error in
scoring the sentencing guidelines,’” regardless [of] whether the original
sentence still falls within the appropriate sentencing guidelines range upon
rescoring. Again, I joined Justice Corrigan dissenting from the majority’s
decision because I believed the holding was contrary to the language of
MCL 769.34(10). I continue to believe that scoring errors should be
reviewed under our harmless error rule, MCR 2.613(A), and that most
remands mandated by this Court’s holding in Francisco are not required by
the statute.
3
The cumulative effect of remands mandated by Babcock and
Francisco has left this Court in a perpetual state of error correction . . . .
* * *
In an effort to provide some relief to sentencing courts that wish to
avoid resentencing orders that this Court’s previous decisions would
otherwise require, I am providing two sentencing instructions that I
recommend all trial court judges cut out and paste into their bench books
and use when they appropriately reflect the judge’s sentencing intent. First,
to avoid unnecessary remands for cases involving a sentencing departure, I
suggest that all judges read the following passage into the record when
appropriate:
“Having acknowledged the substantial and compelling
reasons justifying an upward/downward departure from the
recommended sentencing guidelines, I believe a ____
year/month sentence is sufficiently warranted by each of the
substantial and compelling reasons I have outlined.
Moreover, I believe that the ____ year/month sentence I am
imposing today is proportionate to the seriousness of the
defendant’s conduct and record and produces a proportionate
criminal sentence, regardless of any potential errors in scoring
the sentencing guidelines that may affect the recommended
sentencing guidelines range.”
Second, to avoid unnecessary remands for cases where a sentencing
departure is not necessary, I suggest the following:
“I believe that the ____ year/month sentence I am
imposing today is proportionate to the seriousness of the
defendant’s conduct and record and produces a proportionate
criminal sentence, regardless of any potential errors in scoring
the sentencing guidelines that may affect the recommended
sentencing guidelines range.”
While I do not encourage the trial judges of this state to “game” the
statutory sentencing guidelines, I do encourage judges to include these
statements when a sentencing judge is convinced that the length of the
sentence imposed is appropriate, even if there may be some undetected
minor defect in the calculation of the recommended sentencing guidelines
range.
KELLY, J., concurs and states as follows:
I concur in the order reversing the Court of Appeals decision and remanding this
case to the trial court for resentencing. I write separately to express my concern about the
4
advice of Justices Weaver, Corrigan, and Young to sentencing judges to add an explicit
disclaimer to their judgments of sentence. I believe that this advice encourages judges to
disregard the law that requires them to consider accurate sentencing guidelines
recommendations when sentencing convicts.
Generally, a defendant’s minimum sentence must be within the appropriate
sentence range.1 However, MCL 769.34(3) allows a sentencing judge to “depart from the
appropriate sentence range . . . if the court has a substantial and compelling reason for
that departure . . . .” Importantly, this statute allows departure only from “the appropriate
sentence range.”
It follows that a sentence beyond the guidelines range that is based on an
inappropriate range is invalid. Therefore, when a trial judge departs from a sentence
range that is the product of incorrect scoring, the case must be remanded for resentencing.
Of course, the judge could impose the same sentence on remand if there is a substantial
and compelling reason justifying the particular departure from the sentence range
produced by the correctly scored guidelines. But there are no magic words that insulate
an otherwise improper sentence from challenge.
Justices Weaver, Corrigan, and Young express their displeasure with the current
state of sentencing law. Regardless of our personal opinions on whether a departure from
a sentence range based on incorrectly scored guidelines calls for resentencing, the
Legislature, rather than this Court, has spoken about this matter. It has given sentencing
judges the authority to depart from “the appropriate sentence range” only. A judge
exceeds the scope of this authority and issues an invalid sentence when he or she departs
from a sentence range that results from incorrect scoring. Harmless-error review is
inapplicable to an invalid sentence. Accordingly, our personal opinions aside, a remand
is necessary when a judge departs from a sentence range incorrectly scored. We should
not encourage judges to violate this statutory requirement by indicating that they would
render a sentence that exceeds the guidelines range regardless of whether the range is
accurate.
In footnote 19 of his concurrence, Justice Young purports to “highlight[] for
members of the judiciary what this Court has stated in its decisions concerning the
statutory guidelines.” The only overt suggestion this Court has ever offered sentencing
courts had to do with any substantial and compelling reason for an upward departure
about which a sentencing court may have doubts.2 This Court has never instructed
sentencing courts to ignore the appropriate sentencing guidelines.
1
MCL 769.34(2).
2
People v Babcock, 469 Mich 247, 260 n 15 (2003).
5
In People v Mutchie,3 we declined to interpret offense variable (OV) 11 because,
in departing upward, the sentencing court “clearly expressed its view that the sentences
imposed in this case were the proper sentences without regard to how OV 11 might be
scored.”4 We took into consideration the sentencing court’s clearly expressed intent in
Mutchie. But we did not advise sentencing courts that they should routinely state their
intent to depart upward to the same extent no matter how much the appropriate guidelines
range might change because of scoring errors.
My colleagues caution judges to use their instructions only when appropriate. But
they also direct trial judges to state that the sentence imposed after an upward departure is
proportionate regardless of any scoring errors that may affect the recommended
sentencing guidelines range. This instruction has the potential of producing upward
departures much greater than the judge contemplated on the basis of the sentencing range
he or she believed to be applicable at sentencing. It precludes the judge from reviewing
the changed sentencing range and reconsidering the upward departure. What is worse, it
gives the judge a choice to consciously deny himself or herself such a review and
reconsideration. Because the Court has never sanctioned giving such an overt instruction
to sentencing courts, my colleagues’ instruction does not highlight anything that the
Court has stated in its decisions. This is notwithstanding Justice Young’s assertion to the
contrary.
In their second instruction regarding sentences without upward departures, my
colleagues again direct judges to state that the sentence is proportionate regardless of any
potential scoring errors that may affect the recommended guidelines range. This
instruction is contrary to the majority opinion in People v Francisco.5 Again, in
suggesting that instruction, my colleagues are not highlighting the position of the
majority of this Court. The instruction reflects the position of the dissent in Francisco, in
which my colleagues concurred,6 rather than the position of the majority.
YOUNG, J., concurs and states as follows:
I write to provide a suggestion to sentencing courts that will hopefully curtail the
cycle of appellate sentencing litigation that this Court’s prior decisions have created.
This Court has, through a series of recent decisions,7 construed the statutory sentencing
3
People v Mutchie, 468 Mich 50 (2003).
4
Id. at 52.
5
People v Francisco, 474 Mich 82, 91-92 (2006).
6
Id. at 93-95 (Corrigan, J., dissenting).
7
See People v Babcock, 469 Mich 247, 271 (2003); People v Francisco, 474 Mich 82, 91
(2006).
6
guidelines in such a fashion that even modal defects necessitate resentencing.8 I do not
believe that the sentencing guidelines warrant such a construction or result.
In People v Babcock, this Court held that
if the trial court articulates multiple reasons, and the Court of Appeals . . .
determines that some of these reasons are substantial and compelling and
some are not, and the Court of Appeals is unable to determine whether the
trial court would have departed to the same degree on the basis of the
substantial and compelling reasons, the Court must remand the case to the
trial court for resentencing or rearticulation.[9]
I joined Justice Corrigan in her partial dissent in Babcock because I shared her belief that
the remand requirement stated therein was inconsistent with the language of MCL
769.34(11).10 Although I am obligated to follow the law as established by this Court, I
respectfully continue to believe that most remands mandated by this Court’s holding in
Babcock are unnecessary and not mandated by the statutory guidelines.
In a similar vein, this Court, in People v Francisco, mandated a remand for
resentencing anytime an appellate court finds “‘an error in scoring the sentencing
guidelines,’”11 regardless whether the original sentence still falls within the appropriate
sentencing guidelines range upon rescoring.12 Again, I joined Justice Corrigan dissenting
from the majority’s decision because I believed that the holding was contrary to the
language of MCL 769.34(10). I continue to believe that scoring errors should be
reviewed under our harmless error rule, MCR 2.613(A), and that most remands mandated
by this Court’s holding in Francisco are not required by the statute.
The cumulative effect of the remands mandated by Babcock and Francisco has left
this Court in a perpetual state of error correction. Fortunately, the trial courts of this state
8
See, e.g., People v Reincke, 469 Mich 957, 957-958 (Young, J., dissenting) (explaining
that “[t]he nature and extent of the injuries suffered by the victim in this case epitomize
the type of objective and verifiable reasoning that ‘keenly or irresistibly’ grabs the
Court's attention,” but a remand was ordered because “a majority of this Court apparently
believes that the justification given by the trial court is insufficient”); People v Jackson,
474 Mich 996 (2006) (Corrigan, J., concurring) (explaining that this Court’s holding in
Babcock required an otherwise unnecessary remand because the trial court did not use the
“precise magic language necessary to sustain a departure”).
9
Babcock, supra at 271.
10
Id. at 275 (Corrigan, C.J., concurring in part and dissenting in part).
11
Francisco, supra at 88-91, quoting MCL 769.34(10).
12
Id. at 93 (Corrigan, J., dissenting).
7
are not hopelessly subject to endless review by this Court when imposing a criminal
sentence. In Babcock, this Court made the remand requirement contingent on the
appellate court’s ability to “determine the trial court’s intentions.”13 This Court even
suggested that if a trial court suspects that one of its reasons for departure may not be
“substantial and compelling” to the appellate courts, the judge may avoid the requisite
remand by stating: “I would impose the same sentence regardless of this reason.”14 In
addition, in People v Mutchie,15 this Court held that the remand that is required by
Francisco is not required when the trial court “clearly expressed its view that the
sentences imposed in [that] case were the proper sentences without regard to [a potential
scoring error].”16 Thus, it is imperative that sentencing judges do a more precise job in
articulating their sentencing decisions when they believe that they have imposed a fair
sentence.
In the present case, defendant’s original recommended sentencing guidelines range
was 126 to 210 months. The trial court departed upward from the original guidelines and
sentenced defendant to a minimum sentence of 240 months in prison. The parties do not
dispute that the trial court gave substantial and compelling reasons for the departure.17
The prosecutor concedes, however, that prior record variable 518 was incorrectly scored
and that the recommended guideline range should have been 108 to 180 months.
However, the trial court did not expressly state that it would impose the same sentence
regardless of any scoring errors that may change the guidelines range; thus, defendant is
entitled to resentencing under Francisco.
In an effort to provide some relief to sentencing courts that wish to avoid
resentencing orders that this Court’s previous decisions would otherwise require, I am
13
Babcock, supra at 260.
14
Id. at 260 n 15.
15
468 Mich 50, 52 (2003).
16
See also Francisco, supra at 89 n 8 (stating that “[r]esentencing is also not required
where the trial court has clearly indicated that it would have imposed the same sentence
regardless of the scoring error and the sentence falls within the appropriate guidelines
range,” and citing Mutchie).
17
The court gave three reasons: (1) defendant assaulted the victim, his wife, in front of
their young children; (2) “the testimony in this case that once—with one of the thrusts
into your wife’s abdomen you then moved the knife. In other words you dragged it
through here [sic, her] in a way that it seems like a hunter might do when he was trying to
kill his prey”; and (3) after his arrest, defendant attempted to manipulate his children and
turn them against their mother, blaming her for his actions.
18
MCL 777.55.
8
providing two sentencing instructions that I recommend all trial court judges cut out and
paste into their bench books and use when they appropriately reflect the judge’s
sentencing intent. First, to avoid unnecessary remands for cases involving a sentencing
departure, I suggest that all judges read the following passage into the record when
appropriate:
Having acknowledged the substantial and compelling reasons
justifying an upward/downward departure from the recommended
sentencing guidelines, I believe a ____ year/month sentence is sufficiently
warranted by each of the substantial and compelling reasons I have
outlined. Moreover, I believe that the ____ year/month sentence I am
imposing today is proportionate to the seriousness of the defendant’s
conduct and record and produces a proportionate criminal sentence,
regardless of any potential errors in scoring the sentencing guidelines that
may affect the recommended sentencing guidelines range.
Second, to avoid unnecessary remands for cases in which a sentencing departure is not
necessary, I suggest the following:
I believe that the ____ year/month sentence I am imposing today is
proportionate to the seriousness of the defendant’s conduct and record and
produces a proportionate criminal sentence, regardless of any potential
errors in scoring the sentencing guidelines that may affect the
recommended sentencing guidelines range.
While I do not encourage the trial judges of this state to “game” the statutory
sentencing guidelines, I do encourage judges to include these statements when a
sentencing judge is convinced that the length of the sentence imposed is appropriate, even
if there may be some undetected minor defect in the calculation of the recommended
sentencing guidelines range.19
CORRIGAN, J., joins the statement of YOUNG, J.
19
In her concurrence, Justice Kelly chastises me for highlighting for members of the
judiciary what this Court has stated in its decisions concerning the statutory guidelines.
If the Court no longer subscribes to the positions it has taken, the Court ought overrule
the portions of those decisions on which I rely to provide counsel to the Michigan trial
bench on sentencing questions.
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.
January 25, 2008 _________________________________________
p0122 Clerk