People v. McCuller

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 26, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128161

RAYMOND A. MCCULLER,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

This is one of three companion cases involving the application of Blakely v

Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), to Michigan’s

sentencing scheme. See also People v Harper, 479 Mich ___; ___ NW2d ___

(2007) (Docket Nos. 130988 and 131898, decided July 25, 2007). This case

returns to us following a remand from the United States Supreme Court. In our

previous opinion, we held that a sentencing court must score both the offense

variables (OVs) and the prior record variables (PRVs) to arrive at a defendant’s

minimum sentence range. We reasoned that a sentencing court does not violate
Blakely principles when it engages in judicial fact-finding to score the OVs in

order to calculate a defendant’s recommended minimum sentence range under the

sentencing guidelines, even if the defendant’s PRV score alone would place him in

an “intermediate sanction cell.”1 People v McCuller, 475 Mich 176; 715 NW2d

798 (2006) (McCuller I). The Supreme Court subsequently vacated our judgment

and remanded the case to us for further consideration in light of Cunningham v

California, 549 US ___; 127 S Ct 856; 166 L Ed 2d 856 (2007). McCuller v

Michigan, ___ US ___; 127 S Ct 1247 (2007) (McCuller II). Having now

considered Cunningham, we reaffirm our original decision for three reasons.2

First, Cunningham does not alter our view that Michigan’s statutory

scheme requires the sentencing court to score both the OVs and the PRVs before

determining the defendant’s minimum sentence. A defendant’s qualification for

an intermediate sanction is contingent on the sentencing court’s calculation and

application of these sentencing variables. A sentencing court’s fact-finding in

1
A defendant falling within an intermediate sanction cell must be
sentenced, absent a substantial and compelling reason for departure, to an
intermediate sanction that does not include a prison term. MCL 769.34(4)(a).
2
In reaffirming our original decision, we do not, as Justice Kelly’s dissent
contends, imply that the Supreme Court “simply did not understand Michigan’s
sentencing laws.” Post at 2. Justice Kelly seems to read something into the
Supreme Court’s order that is simply not there. Justice Kelly is incorrect that the
Supreme Court indicated in its order that “there is a Sixth Amendment problem
with Michigan’s sentencing guidelines.” Post at 60. We take the Supreme
Court’s order for exactly what it is: a remand for us to consider the matter further
in light of the Court’s holding in Cunningham. The order does not direct us to
decide the case differently from our previous decision.

2

scoring the OVs does not increase the defendant’s statutory maximum under

Blakely.3 Here, the proper scoring of both the OVs and the PRVs did not place

defendant in an intermediate sanction cell. Instead, defendant’s scores placed him

in a “straddle cell” with a maximum sentence of 15 years in prison. Defendant

was sentenced within this statutory maximum.

Second, as we explained in Harper, supra at ___, Michigan, unlike

California, has a true indeterminate sentencing scheme. A sentencing court scores

the OVs only to calculate the recommended range for the minimum portion of the

defendant’s sentence, not to arrive at the defendant’s maximum sentence, which is

set by statute. The conditional limit on incarceration contained in MCL

769.34(4)(a)—an intermediate sanction—does not establish the defendant’s

statutorily required maximum sentence authorized by the jury’s verdict or the

guilty plea, but is instead a matter of legislative leniency, giving a defendant the

opportunity to be incarcerated for a period that is less than that authorized by the

jury’s verdict or the guilty plea. Harper, supra at ___. Therefore, even if

defendant were to be sentenced on the basis of his PRV score alone, the

sentencing court would not violate Blakely by sentencing him to the statutory

maximum of 15 years in prison.

3
The Court of Appeals reached the same conclusion in People v Uphaus,
___ Mich App ___, ___; ___ NW2d ___ (2007) (Docket No. 267238, issued April
3, 2007), slip op at 5-6.

3

 Third, even if the sentencing court violated Blakely by sentencing

defendant to a term of imprisonment based on its scoring of the OVs, the error was

harmless under the plain error standard of People v Carines, 460 Mich 750, 763­

764; 597 NW2d 130 (1999). The factors underlying the scoring of the OVs were

uncontested and supported by overwhelming evidence. We are firmly convinced

that a jury would have reached precisely the same result.

I. FACTS AND PROCEDURAL HISTORY

Defendant apparently harbored some resentment toward the victim, Larry

Smith, because a woman who once lived with defendant had left him for Smith.

Smith and the woman were imbibing at a local bar when Smith was told that a

man outside in the parking lot was harassing Smith’s dog. When Smith went

outside, he heard someone behind him. He turned and saw defendant swinging a

blunt object that looked like a bat, a pipe, or a club at his head. The next thing

Smith remembered was regaining consciousness in the hospital. As a result of

defendant’s assault on Smith, he suffered a concussion, broken nose, broken cheek

bone, broken eye socket, fractured skull, and collapsed right inner ear wall. He

also lost teeth on the right side of his lower jawbone.

A jury convicted defendant of assault with intent to do great bodily harm

less than murder, MCL 750.84, which has a maximum penalty of 10 years in

prison. Because defendant was a second-offense habitual offender, however, the

sentencing court had the discretion to enhance defendant’s statutory maximum

4

sentence to 15 years. MCL 769.10(1)(a).4 In determining defendant’s minimum

sentence range, the sentencing court scored 10 points for OV 1 because the victim

had been “touched by any other type of weapon,” MCL 777.31(1)(c) (now MCL

777.31[1][d]); 1 point for OV 2 because defendant “possessed or used any other

potentially lethal weapon,” MCL 777.32(1)(d) (now MCL 777.32[1][e]); and 25

points for OV 3 because a “[l]ife threatening or permanent incapacitating injury

occurred to a victim,” MCL 777.33(1)(c). Defendant’s total PRV score was 2

points because he had one prior misdemeanor conviction. These scores placed

defendant in the B-IV cell for a class D offense. As a second-offense habitual

offender, defendant’s calculated minimum sentence range was 5 to 28 months,

4
MCL 769.10(1)(a) provides that a sentencing court may impose a
sentence that is 1½ times longer than the maximum sentence on a second-offense
habitual offender:
(1) If a person has been convicted of a felony or an attempt to
commit a felony, whether the conviction occurred in this state or
would have been for a felony or attempt to commit a felony in this
state if obtained in this state, and that person commits a subsequent
felony within this state, the person shall be punished upon
conviction of the subsequent felony and sentencing under section 13
of this chapter as follows:

(a) If the subsequent felony is punishable upon a first
conviction by imprisonment for a term less than life, the court,
except as otherwise provided in this section or section 1 of chapter
XI, may place the person on probation or sentence the person to
imprisonment for a maximum term that is not more than 1-1/2 times
the longest term prescribed for a first conviction of that offense or
for a lesser term.

5

which is in a straddle cell.5 Because the scoring of the OVs and the PRVs placed

defendant in a straddle cell, the sentencing court had the option of sentencing

defendant to either an intermediate sanction or a prison term with a minimum

sentence within the guidelines range. MCL 769.34(4)(c). The court chose to

sentence defendant within the guidelines range to a 2- to 15-year term of

imprisonment.

On appeal, defendant contended that he was entitled to resentencing under

Blakely because the jury had not found beyond a reasonable doubt the facts

underlying the sentencing court’s scoring of the OVs. Defendant argued that

absent the sentencing court’s scoring of the OVs, his minimum sentence range

would have been zero to 11 months, which would have placed him in an

intermediate sanction cell, entitling him to an intermediate sanction as a maximum

sentence. The Court of Appeals affirmed defendant’s conviction and sentence,

rejecting defendant’s argument because Blakely does not apply to Michigan’s

indeterminate sentencing system.

5
A defendant falls within a straddle cell when, after the sentencing
variables have been scored, the upper limit of the recommended minimum
sentence exceeds 18 months, but the lower limit of the recommended minimum
sentence is 12 months or less. MCL 769.34(4)(c).

6

 This Court also affirmed defendant’s sentence.6 We held that the

sentencing court had not violated Blakely by engaging in judicial fact-finding to

score the OVs necessary to calculate the recommended minimum sentence range.

We explained that a defendant cannot be sentenced to an intermediate sanction by

scoring the PRVs only—the OVs must also be scored. Thus, defendant was not

entitled to resentencing, because his maximum sentence was the statutory

maximum of 15 years, which the sentencing court had not exceeded. McCuller I,

supra at 181-183.

The Supreme Court thereafter vacated our judgment and remanded this case

to this Court “for further consideration in light of Cunningham v California, 549

U.S. ___; 127 S.Ct. 856; 166 L.Ed.2d 856 (2007).” McCuller II, supra, 127 S Ct

at 1247.

II. STANDARD OF REVIEW

This case involves questions of statutory interpretation and constitutional

questions, which are both reviewed de novo. People v Stewart, 472 Mich 624,

631; 698 NW2d 340 (2005); People v Drohan, 475 Mich 140, 146; 715 NW2d

6
On appeal, defendant raised issues other than the Blakely issue, but this
Court denied defendant’s application for leave to appeal with respect to those
issues. McCuller I, supra at 183.

7

778 (2006). An unpreserved claim of constitutional error is reviewed for plain

error affecting substantial rights. Carines, supra at 763-764.7

III. ANALYSIS

A. BACKGROUND

In Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d

435 (2000), the 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 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, the Blakely

Court stated:

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. [Id. at 309 (emphasis in original).]

7
Defendant agrees that his claim of constitutional error should be reviewed
under the plain error standard.

8

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.8

The constitutional rule of Apprendi, Blakely, and [United
States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621
(2005)] 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”; (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; and (3) a trial court may consider
facts and circumstances not proven beyond a reasonable doubt in
imposing a sentence within the statutory range. [Drohan, supra at
156 (citations omitted).]

8
In Harris v United States, 536 US 545, 566; 122 S Ct 2406; 153 L Ed 2d
524 (2002), Justice Kennedy stated:
The 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. Apprendi, supra, 530 US at 498 (Scalia, J.,
concurring). If the grand jury has alleged, and the trial jury has
found, all the facts necessary to impose the maximum, the barriers
between government and defendant fall. The judge may select any
sentence within the range, based on facts not alleged in the
indictment or proved to the jury—even if those facts are specified by
the legislature, and even if they persuade the judge to choose a much
higher sentence than he or she otherwise would have imposed. That
a fact affects the defendant’s sentence, even dramatically so, does
not by itself make it an element.

9

 In Drohan, supra at 160-161, this Court explained that Michigan has an

indeterminate sentencing scheme.9 “The maximum sentence is not determined by

the trial court, but rather is set by law.” Id. at 161. Michigan’s sentencing

guidelines create a range within which the sentencing court must set the minimum

sentence, but the sentencing court may not impose a sentence greater than the

statutory maximum. Id. “Thus, the trial court’s power to impose a sentence is

always derived from the jury’s verdict, because the ‘maximum-minimum’

sentence will always fall within the range authorized by the jury’s verdict.” Id. at

162. Therefore, Michigan’s indeterminate sentencing scheme is valid under

Blakely. Drohan, supra at 162-164; Harper, supra at ___.

B. SCORING THE OVS TO DETERMINE THE

MINIMUM SENTENCE

1. DISCUSSION

Despite our Drohan decision, defendant argues that one aspect of

Michigan’s indeterminate sentencing scheme nonetheless violates the Sixth

Amendment of the United States Constitution. Defendant claims that because his

9
The very limited number of offenses that require determinate sentences
includes first-degree murder, MCL 750.316 (life in prison without the possibility
of parole), and carrying or possessing a firearm when committing or attempting to
commit a felony, MCL 750.227b (two years in prison for the first conviction, five
years for the second conviction, and ten years for a third or subsequent
conviction). Drohan, supra at 161 n 12. When a defendant is sentenced for one
of these crimes, the guidelines are not scored to determine the defendant’s
minimum sentence. The Legislature has singled out these crimes as rare instances
in which the sentencing court retains no discretion in sentencing.

10

PRV score alone placed him in an intermediate sanction cell, he was entitled to a

maximum sentence that did not include prison time. Defendant contends that the

sentencing court violated Blakely by engaging in judicial fact-finding to score the

OVs, thereby allegedly increasing his maximum sentence from an intermediate

sanction to a term of imprisonment. We again reject defendant’s argument and

affirm defendant’s sentence.

Generally, when a defendant is sentenced in Michigan, “[t]he maximum

penalty provided by law shall be the maximum sentence . . . .” MCL 769.8(1).

Our sentencing guidelines set a range only for a defendant’s minimum sentence.

MCL 769.34(2). The sentencing court determines a defendant’s minimum

sentence range by considering together the OVs, the PRVs, and the offense class.

MCL 777.21(1).10 Generally, once the sentencing court calculates the defendant’s

10
MCL 777.21(1) provides:
Except as otherwise provided in this section, 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.

(continued…)

11

guidelines range, it must, absent substantial and compelling reasons, impose a

minimum sentence within that range. MCL 769.34(2). There are, however,

exceptions to this rule. One exception pertains when the upper limit of the

recommended minimum sentence range is 18 months or less. In such cases, the

court, unless it articulates substantial and compelling reasons, must impose an

intermediate sanction:

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 769.34(4)(a).]

MCL 769.31(b) defines “intermediate sanction” as “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”

several options, including up to one year in jail, probation with any conditions

(…continued)
(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.

12

authorized by law, probation with jail, and other options such as house arrest and

community service.11

We hold that Cunningham does not require us to modify our previous

decision. A sentencing court does not violate Blakely by engaging in judicial fact­

11
The nonexhaustive list of intermediate sanction options includes:
(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.

(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. [MCL 769.31(b).]

13

finding to score the OVs to calculate a defendant’s recommended minimum

sentence range, even when the defendant’s PRV score alone would have placed

him in an intermediate sanction cell. Cunningham involved the Supreme Court’s

examination of California’s determinate sentencing law (DSL). In Harper, we

described the facts and holding in Cunningham:

In Cunningham, the defendant was tried and convicted of
continuous sexual abuse of a child under the age of 14. The statute
defining the offense prescribed three precise terms of
imprisonment—lower, middle, and upper term sentences of 6, 12,
and 16 years, respectively. The statute that controlled which term a
sentencing judge should impose provided that “‘the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.’” Circumstances in
aggravation or mitigation were to be determined by the court after
considering the trial record, the probation officer’s report, statements
submitted by the parties, the victim, or the victim’s family, and “any
further evidence introduced at the sentencing hearing.” The judge in
Cunningham sentenced the defendant to the 16-year upper term, on
the basis of the judge’s findings of aggravating facts including the
particular vulnerability of the victim and the defendant’s violent
conduct, which indicated a serious danger to the community.

The Cunningham Court concluded that the sentence violated
the defendant’s rights because

“an upper term sentence may be imposed only when the trial judge
finds an aggravating circumstance. . . . An element of the charged
offense, essential to a jury’s determination of guilt, or admitted in a
defendant’s guilty plea, does not qualify as such a circumstance. . . .
Instead, aggravating circumstances depend on facts found discretely
and solely by the judge. In accord with Blakely, therefore, the
middle term prescribed in California’s statutes, not the upper term, is
the relevant statutory maximum. 542 U.S., at 303, 124 S.Ct. 2531
(‘[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.’
(emphasis in original)). Because circumstances in aggravation are
found by the judge, not the jury, and need only be established by a

14

 preponderance of the evidence, not beyond a reasonable doubt, . . .
the DSL violates Apprendi’s bright-line rule: Except for 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.’ 530 U.S., at 490, 120 S.Ct.
2348.” [Harper, supra at ___, quoting Cunningham, supra, 127 S
Ct at 868.]

The Supreme Court reiterated its holding from Blakely that “‘[t]he 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.’” Cunningham, supra, 127 S Ct at 860, quoting Blakely,

supra at 303-304. After holding that California’s DSL violated Blakely, the Court

advised California that “[o]ther states have chosen to permit judges genuinely ‘to

exercise broad discretion . . . within a statutory range,’ which, ‘everyone agrees,’

encounters no Sixth Amendment shoal.” Cunningham, supra, 127 S Ct at 871,

quoting Booker, supra at 233. The Cunningham decision did not modify Blakely.

Although California’s DSL contains some language facially similar to

MCL 769.34(4)(a), further examination of the two sentencing schemes reveals

clear differences. Under California’s DSL, the defendant was legally entitled to a

maximum sentence of 12 years in prison. The DSL did not attach any conditions

to the defendant’s entitlement to the 12-year maximum sentence. The DSL

violated Blakely by allowing the sentencing court to exceed that 12-year maximum

sentence on the basis of facts not submitted to the jury and found beyond a

reasonable doubt.

15

 By contrast, Michigan’s sentencing scheme does not entitle defendant to a

maximum sentence of an intermediate sanction in the same way that the defendant

in Cunningham was entitled to a 12-year maximum sentence. In Michigan, a

defendant does not even qualify for an intermediate sanction until after the OVs

are scored. MCL 769.34(4)(a) plainly prescribes that a defendant qualifies for an

intermediate sanction only “[i]f the upper limit of the recommended minimum

sentence range for a defendant determined under the sentencing guidelines . . . is

18 months or less . . . .” (Emphasis added.) To determine a defendant’s minimum

sentence range under the guidelines, the sentencing court must first score the OVs

and the PRVs and consider the offense class. MCL 777.21. Thus, under MCL

769.34(4)(a), a defendant does not even qualify for an intermediate sanction until

after the court has scored all the sentencing variables, including the OVs, and

those variables indicate that the upper limit of the defendant’s minimum sentence

range is 18 months or less. In other words, a defendant’s qualification for an

intermediate sanction is contingent on the sentencing court’s calculation of all of

the defendant’s sentencing variables. A defendant has no legal right to have his

minimum sentence calculated using only a portion of the statutorily enumerated

factors.12

12
Further, a defendant in Michigan cannot expect to fall into an
intermediate sanction cell at the time he commits the offense because the
defendant can never be certain how the OVs will be scored. Indeed, an offender
may not even be aware of some facts attending the crime until he is brought before
(continued…)

16

 Upon conviction, a defendant is legally entitled only to the statutory

maximum sentence for the crime involved. A defendant has no legal right to

expect any lesser maximum sentence. As the Blakely Court stated, whether a

defendant has a legal right to a lesser sentence “makes all the difference insofar as

judicial impingement upon the traditional role of the jury is concerned.” Blakely,

supra at 309. Thus, a sentencing court does not violate Blakely principles by

engaging in judicial fact-finding to score the OVs to calculate the recommended

minimum sentence range, even when the scoring of the OVs places the defendant

in a straddle cell or a cell requiring a prison term instead of an intermediate

sanction cell. The sentencing court’s factual findings do not elevate the

defendant’s maximum sentence, but merely determine the defendant’s

recommended minimum sentence range, which may consequently qualify the

defendant for an intermediate sanction.

In this case, the properly scored guidelines gave defendant a recommended

minimum sentence range of 5 to 28 months in prison. This placed defendant in a

straddle cell, for which the sentencing court had the discretion to impose a

minimum sentence of either a prison term with a minimum term within the

(…continued)

a court. To provide just two examples, a defendant may not know the extent of

injury he ultimately caused a victim for purposes of OV 3, MCL 777.33, or the

full value of property he has stolen for purposes of OV 16, MCL 777.46.

17

guidelines range or an intermediate sanction. MCL 769.34(4)(c).13 Defendant

also faced a statutory maximum sentence of 15 years in prison for his conviction

of assault with intent to do great bodily harm less than murder as a second-offense

habitual offender, MCL 750.84; see MCL 769.10. Even if Michigan’s

intermediate sanction cells are characterized as setting maximum sentences for

Blakely purposes, defendant never gained a legal right to an intermediate sanction.

Therefore, the sentencing court did not violate Blakely by scoring the OVs and

imposing a prison sentence within the guidelines, rather than imposing an

intermediate sanction based on defendant’s PRV scores alone. Accordingly, we

affirm defendant’s sentence.

2. RESPONSE TO JUSTICE KELLY’S DISSENT14

In concluding that the trial court’s scoring of the OVs violated defendant’s

Sixth Amendment right to a trial by jury, Justice Kelly’s dissent ignores the

13
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
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.
14
Justice Kelly’s dissent discusses issues we address in detail in Harper.
Post at 32-53. Our response to her arguments regarding these issues can be found
in the Harper opinion.

18

statutory language and relies on the faulty premise that defendant’s jury verdict

entitled him to an intermediate sanction. Justice Kelly repeatedly recites

“Apprendi’s bright-line rule: Except for 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.’” Cunningham, supra,

127 S Ct at 868, quoting Apprendi, supra at 490 (emphasis added). Yet Justice

Kelly woefully misapplies this rule by interpreting it as follows:

Hence, a defendant is entitled to a sentence based solely on
(1) the defendant’s prior convictions and (2) any facts that he or she
admitted and any facts that were specifically found by the jury.

This requires a conclusion that, in order to determine a
defendant’s appropriate maximum sentence, a sentencing court
should score only the PRVs. [Post at 26.]

This interpretation disregards the integral part of the Apprendi rule that only facts

used to increase a sentence beyond the statutory maximum need be proved beyond

a reasonable doubt.

Justice Kelly’s position demonstrates a fundamental misunderstanding of

the function of the legislative sentencing guidelines and how intermediate

sanctions work within the overall sentencing scheme. Once the jury convicted

defendant of assault with intent to do great bodily harm less than murder and of

being a second-offense habitual offender, the jury’s verdict authorized a maximum

prison sentence of 15 years. At that point, the sentencing court, relying on

judicially found facts, had to score the various PRVs and OVs to determine the

recommended range for the minimum portion of defendant’s sentence. A

19

defendant is only eligible for an intermediate sanction if, on the basis of those

additional findings of fact, “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 . . . .” MCL 769.34(4)(a) (emphasis

added). In other words, whether a defendant is eligible for an intermediate

sanction is wholly determined by additional findings of fact undertaken by the

sentencing court in scoring the guidelines, including the OVs. Moreover, a

defendant’s entitlement to an intermediate sanction is itself conditioned on the

absence of other judicially found facts, i.e., facts that demonstrate a “substantial

and compelling reason to sentence the individual to the jurisdiction of the

department of corrections.” MCL 769.34(4)(a); see Harper, supra at ___.

Therefore, under Cunningham, an intermediate sanction does not constitute the

equivalent of the 12-year presumptive maximum sentence set forth in California’s

DSL, but operates instead in a manner similar to the 6-year lower term that a

California court may impose on the basis of its finding of certain mitigating facts

at sentencing. A court’s use of judicially found facts to determine whether to

impose a 6-year term or a 12-year term under California’s DSL does not run afoul

of Blakely because the court remains limited to imposing the maximum sentence

authorized by the jury’s verdict. Likewise, the use of judicially found facts to

score the OVs in order to determine whether a defendant is eligible for an

intermediate sanction does not run afoul of Blakely because a Michigan trial court

20

may never exceed the maximum sentence authorized by the jury’s verdict, i.e., the

statutory maximum. See Harper, supra at ___. Justice Kelly studiously ignores

the plain language of MCL 769.34(4)(a) and does not even attempt to explain why

the statute entitles a defendant to an intermediate sanction as a maximum sentence

before the OVs are scored. Under the plain statutory language, a defendant clearly

is not eligible for an intermediate sanction until the recommended minimum

sentence range under the sentencing guidelines has been determined by

considering all the appropriate factors, including the OVs. Before that, a

defendant can only expect the maximum sentence set by statute.15 Thus, although

Justice Kelly correctly asserts that a defendant is entitled to a statutory maximum

sentence on the basis of the jury’s verdict, the maximum sentence authorized by

the jury’s verdict in this case is 15 years.

15
Justice Kelly compares the instant case to Ring v Arizona, 536 US 584;
122 S Ct 2428; 153 L Ed 2d 556 (2002), in which the United States Supreme
Court rejected an Arizona sentencing law allowing a sentencing judge to conduct a
posttrial hearing to determine whether aggravating circumstances existed to allow
imposition of the death penalty, as opposed to life imprisonment. The instant case
is distinguishable from Ring, however, for the reasons we have discussed—the
jury’s verdict alone never qualified defendant for an intermediate sanction,
because an offender’s qualification for an intermediate sanction is contingent on
the scoring of the OVs. In Ring, on the other hand, the maximum sentence
allowed by the jury’s verdict—life imprisonment—was not subject to such
contingencies. Id. at 597. Further, as we discussed in Harper, supra at ___ n 25,
Michigan’s indeterminate sentencing scheme imposes only one maximum
sentence—the maximum sentence set forth in the statute applicable to the crime.

21

 C. MICHIGAN’S INTERMEDIATE SANCTION CELLS

Even if defendant may qualify for an intermediate sanction before the OVs

are scored, we nonetheless conclude that the sentencing court did not violate

Blakely by sentencing him to a term of imprisonment. If the sentencing court had

not scored the OVs and defendant had fallen into an intermediate sanction cell, he

would still not have been entitled to an intermediate sanction as a statutory

maximum sentence. As we held in Harper, supra at ___:

Under Michigan law, the maximum portion of a defendant’s
indeterminate sentence is prescribed by MCL 769.8, which requires
a sentencing judge to impose no less than the prescribed statutory
maximum sentence as the maximum sentence for every felony
conviction.[16] Michigan’s unique law requiring the imposition of an
intermediate sanction upon fulfillment of the conditions of MCL
769.34(4)(a) does not alter the maximum sentence that is required
upon conviction and authorized by either the jury’s verdict or the
guilty plea. Rather, the conditional limit on incarceration contained
in MCL 769.34(4)(a) is a matter of legislative leniency, giving a
defendant the opportunity to be incarcerated for a period of time that
is less than that authorized by the jury’s verdict or guilty plea, a
circumstance that does not implicate Blakely. [Emphasis in
original.]

Thus, even if defendant fell into an intermediate sanction cell, his statutory

maximum sentence would remain 15 years. The sentencing court did not violate

Blakely by engaging in judicial fact-finding to score the OVs and impose a

sentence within that statutory range.

D. HARMLESS ERROR

22

 Finally, even if the sentencing court violated Blakely by scoring the OVs

and sentencing defendant on the basis of those OV scores, the error was harmless.

As we explained in Harper, supra at ___, Blakely errors are not structural, but are

subject to harmless error analysis. See also Washington v Recuenco, ___ US ___;

126 S Ct 2546, 2551; 165 L Ed 2d 466 (2006).17 Here, defendant did not raise any

constitutional challenge during sentencing. Therefore, defendant must show plain

error affecting substantial rights. Carines, supra at 763-764; see also United

States v Trujillo-Terrazas, 405 F3d 814, 817-818 (CA 10, 2005) (applying the

same plain error standard to an unpreserved claim of a Blakely violation).

“Reversal is warranted only when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or when the error ‘“seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings.”’”

Carines, supra at 763, quoting United States v Olano, 507 US 725, 736; 113 S Ct

1770; 123 L Ed 2d 508 (1993). The important factor in this Blakely harmless error

analysis is whether the facts supporting the sentencing court’s OV scores were

(…continued)
16
As we explained in Harper, supra at ___ n 21, the habitual-offender
statutes are an exception to this rule.
17
For the reasons we explained in Harper, supra at ___ n 70, Justice
Kelly’s interpretation of Recuenco would improperly render Blakely errors
harmful per se. In short, any conclusion that the unavailability of a particular
procedure in the trial court renders all errors harmful would run directly counter to
the crux of the harmless error analysis that forms the basis of the United States
Supreme Court’s holding in Recuenco. See id.

23

“‘uncontested and supported by overwhelming evidence.’” Harper, supra at ___,

quoting Neder v United States, 527 US 1, 17; 119 S Ct 1827; 144 L Ed 2d 35

(1999).

At sentencing, the court scored 10 points for OV 1 because the victim was

touched by a weapon other than a firearm or a cutting or stabbing weapon and 1

point for OV 2 because defendant possessed a potentially lethal weapon other than

a cutting or stabbing weapon, a firearm, or an incendiary or explosive device.

Defendant has not shown that any error in the sentencing court’s scoring of these

OVs affected the outcome of the proceedings. Carines, supra at 763. The jury

found that defendant assaulted the victim with the intent to do great bodily harm

less than murder, and, although the elements of that crime do not include the

touching of a victim with a potentially lethal weapon, those facts were uncontested

and supported by overwhelming evidence at trial. In regard to OV 1, the

uncontroverted evidence showed that the victim was struck in the head with a bat,

pipe, or club.18 The type and severity of the victim’s injuries corroborated the

testimony that such a bludgeoning weapon was used. Defendant did not challenge

18
Justice Kelly’s dissent mischaracterizes the testimony by arguing that
defendant’s use of a weapon was contested by Gregory Thompson, a prosecution
witness. First, Thompson did not witness the assault, but was merely told about it
by defendant. Second, and more importantly, contrary to Justice Kelly’s
representation, Thompson did not testify that defendant did not use a weapon in
beating Smith. Rather, Thompson actually testified during cross-examination that
he assumed that defendant was armed because of the gestures defendant made
while describing the beating.

24

the testimony that he was armed or the evidence regarding the type of weapon

used in the assault. Rather, he claimed that he was misidentified as the

perpetrator. Thus, the uncontroverted and overwhelming evidence showed

beyond a reasonable doubt that the victim was touched by a weapon. In regard to

OV 2, the uncontested and overwhelming evidence regarding the magnitude of the

victim’s injuries demonstrated that the weapon used to injure him was potentially

lethal. The jury rejected defendant’s claim of mistaken identity and convicted

defendant as the perpetrator who inflicted the injuries. Therefore, the sentencing

court’s decision to score OVs 1 and 2 on the basis of its findings that defendant

possessed a potentially lethal weapon and touched the victim with that weapon, if

error at all, was harmless.

The sentencing court also scored 25 points for OV 3 because the victim

suffered life threatening or permanent incapacitating injury. The uncontroverted

evidence at trial showed that the victim was struck so violently that he

immediately lost consciousness. He suffered a concussion, broken nose, broken

cheek bone, broken eye socket, fractured skull, and collapsed right inner ear wall.

He also lost teeth on the right side of his lower jawbone. The severity of these

injuries required a ten-day hospital stay. Because the sentencing court’s finding

that the victim suffered a life threatening injury was based on uncontested factors

25

and was supported by overwhelming evidence, any error in sentencing based on

defendant’s OV 3 score was harmless.19

If the jury had been asked to score the OVs, it unquestionably would have

reached the same result as the sentencing court. Like the defendants in Harper,

supra at ___, and Neder, supra at 15, defendant does not suggest that he would

offer contrary evidence if given the opportunity to do so. Accordingly, even if the

court violated Blakely at sentencing, defendant would not be entitled to

resentencing because he has not shown that that the error “‘“seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings.”’” Carines,

supra at 763, quoting Olano, supra at 736.

IV. CONCLUSION

The sentencing court did not violate Blakely when it engaged in judicial

fact-finding to score the OVs and then determined defendant’s minimum sentence

on the basis of those scores. Because defendant’s OV score, PRV score, and

offense class did not place him in an intermediate sanction cell, he never qualified

for an intermediate sanction. Even if defendant were entitled to be sentenced

solely on the basis of the PRVs and the offense class, an intermediate sanction

19
Justice Kelly’s dissent incorrectly asserts that medical testimony was
necessary to prove that the victim suffered life-threatening injuries, especially
because defendant did not contest the prosecution’s evidence proving the victim’s
serious and extensive injuries. Contrary to Justice Kelly’s assertion, we do not
shift the burden of proof to the defendant, but merely note that the statute does not
(continued…)

26

does not constitute the statutory maximum sentence authorized by the jury’s

verdict or the guilty plea. See Harper, supra at ___. Finally, even if the trial court

violated Blakely in sentencing defendant to a prison term, any error was harmless

because it did not prejudice defendant.

Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman

(…continued)

require the prosecution to specifically present medical testimony to prove a “[l]ife

threatening or permanent incapacitating injury . . . .” MCL 777.33(1)(c).

27

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128161

RAYMOND A. MCCULLER,

Defendant-Appellant.

KELLY, J. (dissenting).

This case presents the majority with the opportunity to correct an error.

When the Court previously sat in judgment of this case, the majority found that no

Sixth Amendment1 violation had occurred at defendant’s sentencing. It sanctioned

the judge’s fact-finding that increased defendant’s sentence by moving it from an

intermediate sanction cell to a straddle cell. The United States Supreme Court

granted certiorari, vacated the decision, and remanded the case to this Court for

1
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.]
further consideration in light of its most recent Sixth Amendment precedent,

Cunningham v California, 549 US __; 127 S Ct 856; 166 L Ed 2d 856 (2007).

McCuller v Michigan, __ US __; 127 S Ct 1247 (2007). On remand, the majority

reaches the same decision as it did before, and it implies that the United States

Supreme Court, in remanding this case, simply did not understand Michigan’s

sentencing laws. Because I believe that the majority fails to explain why

Cunningham does not require a different result, I must once again dissent.

As I previously concluded, the judicial fact-finding occurring in this case

violated defendant’s Sixth Amendment right to a trial by jury.2 Michigan’s

sentencing guidelines3 are unconstitutional as applied.

I. PROCEDURAL FACTS

A jury convicted defendant of assault with intent to do great bodily harm

less than murder. MCL 750.84. In imposing sentence, the trial court attributed

scores to the prior record variables (PRVs) and the offense variables (OVs). The

court assessed 2 PRV points for defendant’s previous misdemeanor conviction. It

assessed a total of 36 OV points. But in order to arrive at the OV score, the court

had to make findings of fact, which it did using a preponderance of the evidence

standard. It assessed 10 points for OV 1 on the basis of its conclusion that a

2
See People v McCuller, 475 Mich 176, 183; 715 NW2d 798 (2006)
(Kelly, J., dissenting).
3
MCL 777.1 et seq.

2

weapon, other than a gun or knife, touched the victim. MCL 777.31. It assessed 1

point for OV 2 on the basis of the finding of fact that defendant possessed a

potentially lethal weapon. MCL 777.32. And it assessed 25 points for OV 3 on

the basis of the finding of fact that the victim suffered a life threatening or

permanent incapacitating injury. MCL 777.33. Defendant made no admissions at

sentencing that supported the points attributed to these OV factors.

Assault with intent to do great bodily harm less than murder is a class D

offense under MCL 777.16d. MCL 777.65 sets forth the class D sentencing grid.

On this grid, a defendant having a PRV level of 2 points and an OV level of 36

points is placed in cell B-IV. This cell provides a minimum sentence range of 5 to

23 months.4 MCL 777.65. Defendant had a prior felony conviction that was not

used in scoring the PRVs. Consequently, the trial court increased the top number

of the range by 25 percent, from 23 to 28 months in accordance with MCL

4
This cell is referred to as a “straddle cell” because the sentencing court
may impose either a prison sentence or an intermediate sanction. Straddle cells
are addressed by 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.

3

769.105 and MCL 777.21(3)(a).6 This set the minimum sentence range at 5 to 28

months. The court sentenced defendant within this range, imposing a minimum

sentence of 24 months’ and a maximum sentence of 15 years’ imprisonment.

After sentencing, but before defendant filed his claim of appeal, the United

States Supreme Court released its decision in Blakely v Washington, 542 US 296;

124 S Ct 2531; 159 L Ed 2d 403 (2004). Although defendant had been unable to

rely on Blakely at sentencing, he could, and did, raise it in the Court of Appeals.

Unfortunately, the Court of Appeals did not directly address the issue. Instead, it

relied on the dicta discussion of Blakely contained in this Court’s decision in

People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). On that

basis, it found that defendant was not entitled to resentencing. People v McCuller,

5
MCL 769.10, 769.11, and 769.12 deal with habitual offenders. They
allow the absolute maximum sentence for an offense to increase by a set
percentage. 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, his maximum possible
sentence increased from 10 to 15 years. MCL 750.84; MCL 769.10(1)(a).
6
MCL 777.21(3) provides, in relevant part:
If the offender is being sentenced under section 10, 11, or 12
of chapter IX [MCL 769.10, 769.11, and 769.12], 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%.

4

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, see 472 Mich 881 (2005). Later, oral argument was heard for the

purpose of determining whether to grant the application or take other peremptory

action pursuant to MCR 7.302(G)(1). The majority dispatched the case in a mere

memorandum opinion. It concluded that defendant was not entitled to an

intermediate sanction cell sentence and that the sentencing court properly made

judicial findings of fact in assessing OV points, regardless of Blakely. People v

McCuller, 475 Mich 176; 715 NW2d 798 (2006). I dissented, concluding that a

Sixth Amendment violation had occurred and that the entire sentencing guidelines

must be found unconstitutional when applied as they were in this case. Id. at 183.

Defendant sought leave to proceed in forma pauperis and petitioned for a

writ of certiorari in the United States Supreme Court. The Court granted both

motions. It then vacated this Court’s judgment, remanding the case for further

consideration and directing us to reconsider it in light of Cunningham. McCuller,

127 S Ct at 1247. This Court ordered that the case be argued with People v

Harper, (Docket No. 130988), and People v Burns, (Docket No. 131898). People

v McCuller, 477 Mich 1288 (2007). We heard oral argument in the three cases in

April 2007.

5

 II. MICHIGAN’S SENTENCING SCHEME

A review of Michigan’s sentencing statutes must begin with MCL 769.8,

which provides:

(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.

Under this statute, in a case not falling into an exception, a court must

initially determine the minimum sentence. That sentence must be within the range

set by the sentencing guidelines unless the sentencing judge finds that substantial

and compelling reasons exist to exceed the range. 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

6

defendant has past convictions, the sentencing court cannot exceed the maximum

sentence provided by statute.7

But MCL 769.8 makes clear that it is only the general rule. It makes this

apparent by noting that exceptions do exist. They are indicated by the phrases

“except as otherwise provided in this chapter” and “except as provided in this

chapter.” MCL 769.8(1).

One major exception to MCL 769.8 is a determinate sentence.8

Determinate sentences are specific, fixed sentences, in contrast to indeterminate

sentences, which fall within a range. The Legislature sets these fixed sentences by

statute. For instance, a first offense of carrying or possessing a firearm when

committing or attempting to commit a felony (felony-firearm) carries a mandatory

determinate sentence of two years. A second conviction of felony-firearm requires

a five-year sentence. MCL 750.227b(1). Given that these crimes require

determinate sentences, the guidelines do not apply to them. Instead, they fall into

the exceptions noted in MCL 769.8(1).

Another major exception to the focus on minimum sentences in MCL 769.8

involves sentences falling in an intermediate sanction cell. It is this exception that

is the centerpiece of this case. Under Michigan’s sentencing guidelines,

7
As noted above, MCL 769.10, 769.11, and 769.12 set new maximum
sentences for habitual offenders.

7

intermediate sanction cells shift the sentencing court’s attention from minimum

sentences to maximum sentences.

III. INTERMEDIATE SANCTION CELLS

MCL 769.34(4)(a) creates intermediate sanction cells. It 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.

(ii) Probation with any probation conditions required or
authorized by law.

(iii) Residential probation.

(iv) Probation with jail.

(v) Probation with special alternative incarceration.

(…continued)
8
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.

8

 (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

scheme. If a defendant’s minimum sentence range falls in an intermediate

sanction cell, the guidelines are no longer concerned with the defendant’s

minimum sentence. Instead, under MCL 769.34(4)(a), the guidelines set the

maximum sentence to which the court may sentence the defendant. That

maximum is a jail term of either the upper limit of the guidelines range for the

recommended minimum sentence or 12 months, whichever is shorter. The

guidelines statutes do not permit a court to sentence a defendant to prison when

his or her guidelines score falls within an intermediate sanction cell. 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).

9

 In this case, if the trial court had not entered a score for OVs 1, 2, and 3,

defendant’s OV score would have dropped to zero. This would have moved him

from the B-IV cell to the B-I cell. The B-I cell provides a minimum sentence

range for a second-offense habitual offender of zero to 11 months in jail. MCL

777.21(3)(a); MCL 777.65. Because its upper limit is less than 18 months, the B-I

cell is an intermediate sanction cell. Defendant’s maximum sentence would have

been 11 months in jail. MCL 769.34(4)(a).

But the trial court did not impose this maximum sentence. By making

judicial findings of fact, the judge moved defendant out of the intermediate

sanction cell and into a straddle cell. The judge then sentenced defendant to a

higher maximum sentence than would have been possible had the sentence been

based only on the jury’s verdict and the defendant’s criminal history. Because the

judge increased defendant’s OV score by making his own findings of fact,

findings not made by the jury, defendant’s sentence violated his Sixth Amendment

right to a trial by jury. And it contradicted the United States Supreme Court’s

holding in Blakely, which was most recently reinforced by Cunningham.

IV. THE UNITED STATES SUPREME COURT’S

PRECEDENT REGARDING “STATUTORY MAXIMUMS”

A. MCMILLAN V PENNSYLVANIA

There is considerable precedent from the United States Supreme Court

regarding judicial modification of sentences using facts found by a judge after a

10

jury’s verdict. These judge-determined facts are referred to as “sentencing

factors.” In McMillan v Pennsylvania,9 the Court addressed the constitutionality

of Pennsylvania’s mandatory minimum sentencing act, 42 Pa Cons Stat 9712.

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.” McMillan,

477 US at 81.

The United States Supreme 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. It made another

important point in McMillan: There are constitutional limitations on how far a

state may go in reducing the factual support needed to prove a criminal offense

beyond a reasonable doubt. The Court 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,
477 US at 87-88.]

9
477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986).

11

 B. JONES V UNITED STATES

The Supreme Court next discussed sentencing factors in Jones v United

States, 526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999). It addressed whether

the federal carjacking statute10 constituted 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 for requiring that the state

must prove to a jury all the “elements” of a crime beyond a reasonable doubt.

They involve constitutional law. 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 [18 USC 2119(2)] (increasing the authorized penalty by two
thirds, to 25 years), then death would presumably be nothing more

10
18 USC 2119. At the time, the statute provided:
Whoever, possessing a firearm as defined in section 921 of
this title, takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15
years, or both,

(2) if serious bodily injury (as defined in section 1365 of this
title) results, be fined under this title or imprisoned not more than 25
years, or both, and

(3) if death results, be fined under this title or imprisoned for
any number of years up to life, or both.

12

 than a sentencing factor under subsection (3) (increasing the penalty
range to life). If a potential penalty might rise from 15 years to life
on a nonjury determination, the jury’s role would correspondingly
shrink from the significance usually carried by determinations of
guilt to the relative importance of low-level gatekeeping: in some
cases, a jury finding of fact necessary for a maximum 15-year
sentence would merely open the door to a judicial finding sufficient
for life imprisonment. [Id. at 243-244.]

The reduction of the role of the jury greatly troubled the Supreme Court.

In fact, it found the reduction inconsistent with the protections offered by the

United States Constitution. It indicated that removal from the jury of control over

the facts necessary for determining a statutory sentencing range would raise a

genuine Sixth Amendment issue. Id. at 248. The Court stated that any doubt on

the issue of statutory construction must be resolved in favor of avoiding such Sixth

Amendment questions. Id. at 251.

C. APPRENDI V NEW JERSEY

The next year, the Supreme Court took an important step forward in its

discussion of sentencing factors, in Apprendi v New Jersey, 530 US 466; 120 S Ct

2348; 147 L Ed 2d 435 (2000). Apprendi dealt with a New Jersey hate-crime law.

The statute allowed a defendant’s maximum sentence to be increased from 10 to

20 years if the sentencing court found that the defendant “‘acted with a purpose to

intimidate an individual or group of individuals because of race, color, gender,

handicap, religion, sexual orientation or ethnicity.’” Id. at 468-469, quoting NJ

Stat Ann 2C:44-3(e). The sentencing court could make the finding using a

preponderance of the evidence. Apprendi, 530 US at 468. In its analysis, the

13

Supreme Court specifically built on Jones. It concluded that the Fourteenth

Amendment of the United States Constitution commanded the same answer for

state statutes as the Fifth and Sixth amendments required in Jones. Id. at 476.

The Court found that a legislature could not change the elements of a crime

simply by labeling some of them “sentencing factors.” Such actions run afoul of

due process and violate a defendant’s Sixth Amendment protections. The Court

stated that a sentencing court could exercise its judicial discretion on sentencing

factors only as long as the sentence imposed fell within the appropriate statutory

limits. Id. at 481-482. The Court expressed concern that a defendant not be

deprived of his or her liberty or otherwise stigmatized by a conviction and

sentence not authorized by the jury’s verdict. For proper protection, the Court

required that procedural practices adhere to the basic principles undergirding the

requirement that the prosecution prove all facts constituting the statutory offense

beyond a reasonable doubt. Id. at 483-484. The Court reasoned that increasing

punishment beyond the statutory maximum violated those principles:

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. [Id. at 484.]

In reiterating its reasoning and holding in Apprendi, the Supreme Court

used the phrase “statutory maximum”:

14

 In sum, our reexamination of our cases in this area, and of the
history upon which they rely, confirms the opinion that we
expressed in Jones. Other 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. With that exception, we endorse the statement
of the rule set forth in the concurring opinions in that case: “[I]t is
unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of penalties to
which a criminal defendant is exposed. It is equally clear that such
facts must be established by proof beyond a reasonable doubt.” [Id.
at 490, quoting Jones, 526 US at 252-253 (Stevens, J., concurring).]

D. RING V ARIZONA

Two years later, the Supreme Court renewed its discussion of “statutory

maximums” in Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556

(2002). That case dealt with Arizona’s first-degree murder statute. The

punishment for violation of this statute was life imprisonment or death. The

statute referred to another statute that required a separate sentencing hearing. The

judge was charged with determining at the hearing whether specific circumstances

(sentencing factors) existed, allowing imposition of the death penalty. Id. at 592­

593. The Supreme Court built on its decisions in Jones and Apprendi to conclude

that a sentence of death violated a defendant’s Sixth Amendment rights under

these statutes:

The dispositive question, we said, “is one not of form, but of
effect.” If a State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact—no matter
how the State labels it—must be found by a jury beyond a
reasonable doubt. A defendant may not be “expose[d] . . . to a
penalty exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.” [Id. at

15

 602, quoting Apprendi, 530 US at 483, 494 (citations omitted;
emphasis in Apprendi).]

On the basis of this reasoning, the Court found that the “statutory

maximum” sentence was life in prison, despite the fact that the statute allowed

imposition of a sentence of death. This is because, in order to impose the death

penalty, the judge had to make factual findings in addition to those reflected by the

jury’s verdict. The Supreme Court found nothing to distinguish the case from

Apprendi. Ring, 536 US at 604-606. It reached this conclusion because Arizona’s

enumerated aggravating factors were the functional equivalent of an element of a

greater offense. Therefore, the Sixth Amendment required that a jury find those

factors beyond a reasonable doubt. Id. at 609.

E. BLAKELY V WASHINGTON

The Supreme Court took its biggest step in defining the expression

“statutory maximum” in Blakely. In that case, the defendant pleaded guilty of

second-degree kidnapping involving domestic violence and the use of a firearm.

The standard sentencing range for the offense was four years and one month to

four years and five months in prison. Blakely, 542 US at 298-299. But under

Washington State’s sentencing guidelines, a court could impose a sentence above

the standard range if it found substantial and compelling reasons to justify an

“exceptional sentence.” Id. at 299. The defendant had admitted no relevant facts

other than having committed acts in violation of the elements of the crime. Id.

16

But the sentencing court imposed an exceptional sentence of 7 1/2 years11 after

hearing the complainant’s version of the kidnapping. The sentencing court based

this departure on a finding that the defendant had exhibited deliberate cruelty.

This was a statutorily enumerated ground for departure in domestic violence cases

in Washington. Id. at 300.

Washington argued that its system did not present a Sixth Amendment

problem because state law provided an absolute maximum sentence of ten years’

imprisonment and in no instance could an exceptional sentence exceed this length.

Id. at 303. Washington contended that ten years was the true “statutory

maximum” for purposes of Sixth Amendment review.

But the Supreme Court rejected this argument. Instead, it defined the

“statutory maximum” as the maximum sentence that can be imposed without

judicial fact-finding:

Our precedents make clear, however, 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. 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. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has
not found all the facts “which the law makes essential to the
punishment,” and the judge exceeds his proper authority. [Id. at
303-304 (emphasis in original; citations omitted).]

11
Washington’s sentencing scheme provided for determinate sentences.
Blakely, 542 US at 308.

17

Hence, for Sixth Amendment purposes, the maximum sentence was not ten years.

It was four years and five months. This was because that sentence was the

maximum the court could have imposed solely on the basis of the facts the

defendant admitted when pleading guilty. Id. at 304. The Supreme Court

concluded that its determination was the only one that would properly effectuate

the people’s control of the judiciary as intended by the Framers of the United

States Constitution:

Ultimately, our decision cannot turn on whether or to what
degree trial by jury impairs the efficiency or fairness of criminal
justice. One can certainly argue that both these values would be
better served by leaving justice entirely in the hands of
professionals; many nations of the world, particularly those
following civil-law traditions, take just that course. There is not one
shred of doubt, however, about the Framers’ paradigm for criminal
justice: not the civil-law ideal of administrative perfection, but the
common-law ideal of limited state power accomplished by strict
division of authority between judge and jury. As Apprendi held,
every defendant has the right to insist that the prosecutor prove to a
jury all facts legally essential to the punishment. [Id. at 313
(emphasis in original).]

F. UNITED STATES V BOOKER

The Supreme Court next discussed “statutory maximums” and “sentencing

factors” in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621

(2005). In that case, the Court addressed the applicability of the preceding line of

cases to the federal sentencing guidelines. The prosecution charged Booker12 with

12
Booker involved consolidated cases that included another defendant,
Fanfan. In the interest of brevity, I will discuss only defendant Booker.

18

possession with intent to distribute at least 50 grams of cocaine base. The federal

statute for this crime provided a maximum sentence of life in prison. But because

of Booker’s criminal history and the quantity of cocaine base that the jury found

was involved, the guidelines required a maximum sentence of 21 years and 10

months’ imprisonment. Instead of imposing that sentence, the trial court held a

hearing during which it made additional findings of fact. It concluded that Booker

had possessed another 566 grams of cocaine base and that he had obstructed

justice. Accordingly, using a preponderance of the evidence standard, the court

increased his maximum sentence to 30 years in prison. Id. at 227.

After a discussion of Jones, Apprendi, Ring, and Blakely, the Supreme

Court found the federal guidelines indistinguishable from the Washington

guidelines that were at issue in Blakely:

Booker’s actual sentence, however, was 360 months, almost
10 years longer than the Guidelines range supported by the jury
verdict alone. To reach this sentence, the judge found facts beyond
those found by the jury: namely, that Booker possessed 566 grams
of crack in addition to the 92.5 grams in his duffel bag. The jury
never heard any evidence of the additional drug quantity, and the
judge found it true by a preponderance of the evidence. Thus, 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. at 235, quoting Blakely, 542 US at 305 (citation
omitted).]

Again, the Supreme Court found it irrelevant that a statute existed setting

an absolute maximum sentence. The sentencing court could not impose the

19

absolute maximum sentence in every case. Instead, in cases like Booker’s, the

jury’s verdict supported only a lower maximum sentence. Booker, 543 US at 234­

235. The Supreme Court concluded:

Accordingly, we reaffirm our 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. [Id. at
244.]

On this basis, the Supreme Court invalidated the statutory provisions that made the

federal sentencing guidelines mandatory. Id. at 226-227.

G. CUNNINGHAM V CALIFORNIA

The final link in the “sentencing factor”/“statutory maximum” chain is

Cunningham. Cunningham was convicted of “continuous sexual abuse of a child

under the age of 14.” Cunningham, 127 S Ct at 860. California’s determinate

sentencing law (DSL) created a three-tiered sentencing system for most crimes.

The statute defining a defendant’s offense provided a lower, a middle, and an

upper sentence. Cal Penal Code 1170 mandated that the trial court impose the

middle term, unless circumstances in mitigation or aggravation existed. The trial

court made factual findings under a preponderance of the evidence standard

regarding whether aggravating circumstances existed. Cunningham, 127 S Ct at

861-863.

In Cunningham’s case, the DSL provided for sentences of 6, 12, or 16

years. The sentencing court found by a preponderance of the evidence the

20

existence of one mitigating factor and six aggravating factors. It found that the

aggravating factors outweighed the mitigating factor and imposed the 16-year

sentence. Id. at 860-861. As in the cases preceding Cunningham, the United

States Supreme Court found that the judicial fact-finding that increased the

maximum sentence violated the Sixth Amendment.

Despite California’s arguments to the contrary, the Supreme Court found

nothing to distinguish the DSL from the sentencing that occurred in Blakely and

Booker:

California’s DSL, we note in this context, resembles pre-
Booker federal sentencing in the same ways Washington’s
sentencing system did: The key California Penal Code provision
states that the sentencing court “shall order imposition of the middle
term” absent “circumstances in aggravation or mitigation of the
crime,” [Cal Penal Code] 1170(b) (emphasis added), and any move
to the upper or lower term must be justified by “a concise statement
of the ultimate facts” on which the departure rests, [Cal Ct R]
4.420(e) (emphasis added). [Cunnigham, 127 S Ct at 866 n 10
(emphasis in original).]

Quite simply, the Supreme Court viewed Cunningham as a continuation of

its earlier precedent. It broke no new ground. But for the first time, the Supreme

Court characterized its often-repeated holding as a bright-line rule:

Under California’s DSL, an upper term sentence may be
imposed only when the trial judge finds an aggravating
circumstance. An element of the charged offense, essential to a
jury’s determination of guilt, or admitted in a defendant’s guilty
plea, does not qualify as such a circumstance. Instead, aggravating
circumstances depend on facts found discretely and solely by the
judge. In accord with Blakely, therefore, the middle term prescribed
in California’s statutes, not the upper term, is the relevant statutory
maximum. 542 U.S., at 303, 124 S.Ct. 2531 (“The ‘statutory

21

 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 in original)).
Because circumstances in aggravation are found by the judge, not
the jury, and need only be established by a preponderance of the
evidence, not beyond a reasonable doubt, the DSL violates
Apprendi’s bright-line rule: Except for 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.” [Cunningham, 127 S Ct at 868, quoting
Apprendi, 530 US at 490 (citations omitted; second emphasis
added).]

Again, it was irrelevant that there existed the possibility of an absolute maximum

sentence of 16 years. The Supreme Court stressed that the only concern was

whether the bright-line rule laid down in Apprendi, Blakely, and Booker was

violated. The Court expressed frustration at the state’s inability or unwillingness

to follow this precedent. Id. at 869-870. The Supreme Court left to California

how to eliminate the constitutional violation. Id. at 871.

In summary, the Supreme Court established a consistent precedent from

McMillan to Cunningham. The bright-line rule established was the same before

and after Cunningham. And the Court’s decision to remand this case must be

considered in light of this fact.

V. THE BRIGHT-LINE RULE AND MICHIGAN’S GENERAL SENTENCING SCHEME

As discussed earlier, Michigan’s sentencing guidelines generally focus on a

defendant’s minimum sentence. The average defendant’s criminal history, the

admitted facts, and the jury’s verdict alone would allow the sentencing court,

without recourse to judicial fact-finding, to impose the maximum sentence

22

provided by law. Because of this, the judicial fact-finding necessary to score the

OVs moves the typical defendant within a predetermined range of possible

sentences. And the defendant’s Sixth Amendment rights are not implicated,

because all the facts necessary to support the maximum sentence have been proved

to a jury beyond a reasonable doubt.

Such situations do not threaten the basic principles undergirding this

country’s jury-driven legal system. A defendant knows what maximum sentence

he or she is facing regardless of judicial fact-finding. Apprendi noted that judicial

fact-finding is acceptable when it does not increase the maximum penalty for a

crime or create a separate offense calling for a separate penalty. “‘[Judicial fact­

finding] operates solely to limit the sentencing court’s discretion in selecting a

penalty within the range already available to it without the special

finding[s] . . . . ’” Apprendi, 530 US at 486, quoting McMillan, 447 US at 88.

Because the right to a trial by jury is completely protected in such situations, there

are no Sixth Amendment concerns.

The typical application of the Michigan sentencing guidelines more readily

relates to McMillan. The score given to the OVs merely shifts a defendant’s

sentence within the minimum sentence range under the guidelines. It does not

increase the defendant’s maximum sentence. A defendant whose criminal history

and jury verdict do not place him or her in an intermediate sanction cell always

knows what the potential maximum sentence will be: it is the maximum penalty

23

prescribed by Michigan law. All of this changes, however, when an intermediate

sanction cell is involved.

VI. THE BRIGHT-LINE RULE AND MICHIGAN’S INTERMEDIATE SANCTION CELLS

When a defendant is entitled to a sentence that is within the range specified

in an intermediate sanction cell, MCL 769.34(4)(a) sets his or her maximum

sentence. That maximum sentence is a jail term of either the upper limit of the

recommended minimum sentence range or 12 months, whichever is shorter.

Under the guidelines, the court must impose this maximum sentence, unless it can

state substantial and compelling reasons to increase the sentence. Therefore, the

process is no longer concerned with the defendant’s minimum sentence. Under

the Supreme Court’s bright-line rule, this alteration in focus changes the

defendant’s “statutory maximum.”

The new maximum sentence set under MCL 769.34(4)(a) becomes the

defendant’s “statutory maximum.” This is true because it is the longest sentence

the court can give a defendant solely on the basis of the defendant’s criminal

record and admissions and the jury’s verdict. Cunningham, 127 S Ct at 868;

Booker, 543 US at 244; Blakely, 542 US at 301; Apprendi, 530 US at 490; Jones,

526 US at 251-252. And if the court makes findings of fact moving the sentence

to a higher statutory maximum, the defendant faces either (1) a different criminal

charge or (2) the increased stigma of an extended sentence. This is specifically

what the Supreme Court sought to avoid. Apprendi, 530 US at 484.

24

 Any judicial fact-finding that shifts a defendant’s sentence above the

statutory maximum is unconstitutional and violates Jones and its progeny. A court

engages in judicial fact-finding by scoring the OVs or stating substantial and

compelling reasons to depart from the sentencing guidelines range. The

sentencing court makes its own findings of fact by a preponderance of the

evidence. These findings are separate and distinct from the findings establishing

the elements of the crime, which must be proved to a jury beyond a reasonable

doubt. Such sentencing mirrors the sentencing in Cunningham, in which the

Supreme Court held:

Because circumstances in aggravation are found by the judge,
not the jury, and need only be established by a preponderance of the
evidence, not beyond a reasonable doubt, . . . [this] violates
Apprendi’s bright-line rule: Except for 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.” [Cunningham, 127 S Ct at 868, quoting
Apprendi, 530 US at 490 (emphasis added).]

As in Cunningham, any judicial fact-finding that increases a defendant’s

maximum sentence crosses the Supreme Court’s bright line. And in doing so, it

violates the constitution.

To fully analyze Michigan’s sentencing system, it must be determined who

is entitled to an intermediate sanction cell sentence. The Supreme Court’s bright­

line rule provides the answer to this question. “Except for 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.’”

25

Cunningham, 127 S Ct at 868, quoting Apprendi, 530 US at 490. Hence, a

defendant is entitled to a sentence based solely on (1) the defendant’s prior

convictions and (2) any facts that he or she admitted and any facts that were

specifically found by the jury.

This requires a conclusion that, in order to determine a defendant’s

appropriate maximum sentence, a sentencing court should score only the PRVs.

They reflect the defendant’s prior convictions and relations to the criminal justice

system. The sentencing court is free to score these because they fall under one of

the exceptions noted in the bright-line rule: the defendant’s prior convictions.

Scoring the OVs, on the other hand, requires factual determinations that are

made by the trial court using a preponderance of the evidence standard. They are

judicial determinations that occur only after the jury’s verdict. Such findings of

fact fall directly in line with the Cunningham decision. “Because [OVs] are

found by the judge, not the jury, and need only be established by a preponderance

of the evidence, not beyond a reasonable doubt, . . . [scoring them] violates

Apprendi’s bright-line rule[.]” Cunningham, 127 S Ct at 868.13 The only time the

13
The majority accuses me of ignoring the language of MCL 769.34(4)(a).
Even a casual review of this opinion will show that the accusation is untrue. The
majority asks why I would not require the OVs to be scored along with the PRVs.
The answer is simple: The Sixth Amendment entitles a defendant to a sentence
based solely on (1) the defendant’s prior convictions, (2) any facts he or she has
admitted, and (3) any facts that were specifically found by the jury. Cunningham,
127 S Ct at 868. The statutory language must bow to the requirements of the
United States Constitution.

26

court should score an OV is when the defendant admitted the fact justifying the

score or a jury found its existence beyond a reasonable doubt. This occurs only in

rare cases, and it did not occur in this case.

Under the bright-line rule, a Michigan defendant is entitled to an

intermediate sanction as a sentence when his or her PRV level alone supports such

a sentence. On the other hand, a defendant whose PRV level is too high to place

him or her in an intermediate sanction cell is not entitled to an intermediate

sanction cell sentence. The latter defendant falls under the general sentencing

scheme and is subject to the absolute maximum sentence set by law. In that case,

the trial court is free to make the judicial findings of fact necessary to score the

OVs.

27

 A. HOW THE TRIAL COURT CALCULATED DEFENDANT’S SENTENCE

The case before us demonstrates the distinction. Defendant did not admit

the facts necessary to attribute a score to OVs 1, 2, and 3. And the jury made no

specific findings of fact regarding these OVs. Thus, defendant’s sentence was

based on judicial fact-finding, in violation of the bright-line rule. His sentence

should have been based solely on his PRV level. Defendant’s PRV level was 2

points, which placed him in the B-I cell. The B-I cell provides a minimum

sentence range of zero to 11 months for a second-offense habitual offender. MCL

777.65; MCL 777.21(3)(a). This is an intermediate sanction cell. MCL

769.34(4)(a). Therefore, defendant was entitled to an intermediate sanction cell

sentence. As discussed earlier, his maximum sentence was supposed to be 11

months in jail. The court could not properly impose a maximum sentence

exceeding 11 months without using facts that defendant had not admitted or that

were not proved to a jury beyond a reasonable doubt.

But the trial judge made such findings of fact to score OVs 1, 2, and 3.

These judicial findings increased defendant’s maximum sentence because they

moved him into a straddle cell. At that point, he was no longer entitled to an

intermediate sanction cell sentence that would be capped at 11 months in jail.

Because the judge’s findings of fact increased defendant’s maximum sentence,

they violated defendant’s Sixth Amendment rights under Apprendi. Defendant

suffered greater stigma through an increased sentence than the stigma he would

28

have faced had his sentence been based solely on his PRV level. This increased

stigma and punishment undermine the basic concepts of the right to a trial by jury

and defeat the intent of the Framers to ensure a publicly controlled judiciary.

Apprendi, 530 US at 483-484.

Scoring the OVs in this case was the functional equivalent of convicting

defendant of a different criminal offense. Although he had been convicted of

assault with intent to do great bodily harm less than murder, the trial court

sentenced defendant for an assault with intent to do great bodily harm less than

murder (1) in which the victim was touched by a weapon,14 (2) in which the

defendant possessed a potentially lethal weapon,15 and (3) in which the victim

suffered life threatening or permanent incapacitating injury.16 Just as in Ring, the

Sixth Amendment requires that the jury find the facts that enhanced defendant’s

sentence beyond a reasonable doubt. Ring, 536 US at 609. Because this did not

occur, defendant’s Sixth Amendment rights were violated by the sentence

imposed.

14
This was the finding under OV 1. MCL 777.31(1)(c), now MCL
777.31(1)(d).
15
This was the finding under OV 2. MCL 777.32(1)(d), now MCL
777.32(1)(e).
16
This was the finding under OV 3. MCL 777.33(1)(c).

29

 B. AT WHAT POINT MAY THE OVS BE SCORED?

The majority relies on MCL 777.21 to argue that no defendant is entitled to

a sentence in Michigan until after the sentencing court scores the OVs. This

argument withers when examined in light of the Blakely line of cases. The

holding there is easily recited: Any facts, aside from past convictions, that

increase a defendant’s maximum sentence must either be admitted by the

defendant or proved to a jury beyond a reasonable doubt. Booker, 543 US at 244.

The majority avoids directly applying this central tenet. Its insistence that a

defendant would or could have received a longer sentence under the traditional

application of the sentencing scheme is irrelevant. A defendant is entitled to the

maximum sentence authorized by his or her past convictions, the facts he or she

admitted, and the facts established by the jury’s verdict. See id. A defendant’s

sentence cannot properly be based on facts that the judge later found using a

preponderance of the evidence standard. Hence, if the judge determines the facts

used to score the OVs, the OVs must be scored after it is determined whether a

defendant falls into an intermediate sanction cell.

The majority’s reliance on MCL 777.21 does not obviate this central tenet.

This statute is similar to the statute in Ring. There, the judge was directed to

conduct a separate sentencing hearing to determine the existence of specified

circumstances in order to decide whether to impose the death penalty or life

imprisonment. Ring, 536 US at 592. The fact that it is possible to impose a longer

30

sentence under the sentencing scheme is not relevant. A defendant is entitled to a

sentence based solely on the jury’s verdict and the defendant’s admissions and

criminal history. The Supreme Court explained:

In an effort to reconcile its capital sentencing system with the
Sixth Amendment as interpreted by Apprendi, Arizona first restates
the Apprendi majority’s portrayal of Arizona’s system: Ring was
convicted of first-degree murder, for which Arizona law specifies
“death or life imprisonment” as the only sentencing options, see
Ariz. Rev. Stat. Ann. § 13-1105(C) (West 2001); Ring was therefore
sentenced within the range of punishment authorized by the jury
verdict. See Brief for Respondent 9-19. This argument overlooks
Apprendi’s instruction that “the relevant inquiry is one not of form,
but of effect.” 530 U.S., at 494. In effect, “the required finding [of
an aggravated circumstance] expose[d] [Ring] to a greater
punishment than that authorized by the jury’s guilty verdict.” [Id.
at 603-604.]

The same is true of the Michigan sentencing guidelines. It does not matter

that, as in defendant’s case, there are two possible maximum sentences for the

offense of which defendant was convicted. Defendant must receive the maximum

sentence that is supported by the jury’s verdict, his prior record, and his

admissions alone.17 Id. But that did not occur in this case. Instead, he was given

17
The same analysis applies to another of the majority’s contentions: that a
defendant is not entitled to an intermediate sanction until after the sentencing court
decides whether substantial and compelling reasons exist to exceed the guidelines
range. That the statute provides for judicial fact-finding is irrelevant. The Sixth
Amendment requires that all that may be considered are the defendant’s
admissions, his or her prior record, and the jury’s verdict. A defendant is entitled
to whatever maximum sentence these warrant without any judicial fact-finding
whatsoever.

31

a longer sentence than was authorized by the jury’s verdict.18 For that reason, the

sentence violated the Sixth Amendment. Id. at 609.

VII. A MAXIMUM BY ANY OTHER NAME

Here and in People v Harper,19 the majority strives to convince the reader

that the maximum sentence that MCL 769.34(4)(a) sets for intermediate sanction

cells is really a minimum sentence. To arrive at this conclusion, it takes the reader

through what might be mistaken for a shell game of statutory language. But a

reading of the pertinent statutes as they are written undermines the central support

18
In People v Harper, 479 Mich ___, ___ n 25; ___ NW2d ___ (2007)
(Docket Nos. 130988 and 1319898, decided July 26, 2007), the majority attempts
to distinguish Ring by focusing on the fact that the death sentence in that case
could be imposed only if a judge found aggravating circumstances. It concludes
that the situation in Ring is distinct from the situation in Michigan because only
one maximum sentence exists in Michigan. As explained above, this is simply not
accurate. The instant case illuminates the reason why. Here, just as in Ring,
defendant faced one maximum sentence (11 months in jail) until the court made
findings of fact to move him out of an intermediate sanction cell. Whether this is
called identifying “aggravating circumstances” or “scoring of the OVs,” the fact
remains the same: The trial court increased the defendant’s sentence by making
findings not supported by the jury’s verdict, the defendant’s admissions, and the
defendant’s past record. In so doing, it violated Blakely’s bright-line rule.

The argument that there is only one maximum sentence is the argument
made unsuccessfully by Arizona in Ring. Just as the argument failed in Ring, it
must fail in this case. That an absolute maximum sentence exists is irrelevant if
judicial fact-finding not supported by his admissions or prior conviction or the
jury’s verdict prevented defendant from receiving a lower statutory maximum
sentence.
19
Id. at ___.

32

for the majority’s decision to affirm defendant’s sentence despite the Supreme

Court’s remand. For example, 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. [Emphasis added.]

The language of this statute is not ambiguous. It mandates that the

sentencing court impose an intermediate sanction when a defendant falls into an

appropriate cell, unless the court makes judicial findings of fact to support a

departure. MCL 769.34(4)(a). It also defines the outer limit of an intermediate

sanction: 12 months in jail. Because this is the highest sentence a defendant may

face, it is a maximum sentence. Without judicial fact-finding, the trial judge is not

authorized to impose so much as a 13-month sentence.20

Even the majority seems to concede that, considering only the language of

MCL 769.34(4)(a), 12 months is the maximum sentence. But it believes that this

20
The majority claims that a Michigan defendant is liable to serve the
absolute maximum sentence in every case. See Harper, 479 Mich at ___ n 25.
MCL 769.34(4)(a) shows the fallacy of this point. Some Michigan defendants
face no higher maximum than 12 months in jail, even though a second, higher
statutory maximum sentence exists for their crime. This undeniable fact destroys
the majority’s premise that Michigan has only one maximum sentence for each
crime.

33

conclusion changes when MCL 769.34(4)(a) is viewed in light of other sentencing

statutes. The majority first relies on MCL 769.8(1), which provides:

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. [Emphasis added.]

The majority focuses on the language “[t]he maximum penalty provided by

law shall be the maximum sentence in all cases . . . .” But it dismisses as

inapplicable the fact that this phrase is modified by “except as provided in this

chapter . . . .” The Legislature twice makes clear that there are exceptions to the

general rule stated in the statute. MCL 769.8(1). By treating these clauses as

irrelevant, the majority ignores language chosen by the Legislature and rewrites

the statute.

The majority concludes that the clauses must not refer to intermediate

sanction cells. It reasons that the provisions creating intermediate sanction cells

were enacted after the language contained in MCL 769.8(1) and that the clauses

must refer only to preexisting exceptions. Not only does this defy logic, it is

unsupported by any authority whatsoever.

The majority’s new rule of statutory construction would render it nearly

impossible to read statutes together. Someone reading two statutes that seem to

discuss the same subject would be obliged to review the date of enactment of each

34

statute to see which came first. If the language in the earlier statute made the two

relate to one another, that language would have to be ignored. Hence, any attempt

to read two statutes together must be accompanied by a history lesson. Such an

odd requirement seems ill-advised.

Not only does the majority’s new rule create confusion, it contradicts the

majority’s supposed “plain language” approach to statutory interpretation. The

majority effectively rewrites MCL 769.8(1) to read:

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 (but only if this
exception predates this statute). The maximum penalty provided by
law shall be the maximum sentence in all cases except as provided in
this chapter (but not if that exception was enacted after 1927) and
shall be stated by the judge in imposing the sentence.

This Court has repeatedly admonished that a court must not read into a statute

something that the Legislature did not put there. AFSCME v Detroit, 468 Mich

388, 412; 662 NW2d 695 (2003).21 But the majority has done just that in this

case. Does the majority now abandon this classic rule of statutory interpretation?

21
This principle has often been repeated by those comprising the majority
here. See People v Williams, 475 Mich 245, 259; 716 NW2d 208 (2006),
Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129 (2004), People v Phillips,
469 Mich 390, 395; 666 NW2d 657 (2003), People v Davis, 468 Mich 77, 79; 658
NW2d 800 (2003), Lesner v Liquid Disposal, Inc, 466 Mich 95, 101; 643 NW2d
553 (2002), and Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d
663 (2002).

35

 The majority notes that, under MCL 769.8(1), there are cases in which the

sentencing court will not fix the minimum sentence and in which the absolute

maximum sentence will not apply. It notes that other provisions in the chapter of

the Code of Criminal Procedure in which MCL 769.8(1) appears state the

exceptions to the general rule. MCL 769.34 is in that chapter of the code. And

MCL 769.34(4)(a) provides that the sentencing court will set the maximum

sentence rather than the minimum in cases involving intermediate sanction cells.

Therefore, far from indicating that intermediate sanction cells set minimum

sentences, when read together, these statutes demonstrate a legislative intent that

intermediate sanction cells serve as an exception to the general rule. The

Legislature intended intermediate sanction cells to dictate a maximum sentence.

MCL 769.34(4)(a); MCL 769.8(1).

The majority also turns to MCL 769.9, which provides:

(1) The provisions of this chapter relative to indeterminate
sentences shall not apply to a person convicted for the commission
of an offense for which the only punishment prescribed by law is
imprisonment for life.

(2) In all cases where the maximum sentence in the discretion
of the court may be imprisonment for life or any number or term of
years, the court may impose a sentence for life or may impose a
sentence for any term of years. If the sentence imposed by the court
is for any term of years, the court shall fix both the minimum and the
maximum of that sentence in terms of years or fraction thereof, and
sentences so imposed shall be considered indeterminate sentences.
The court shall not impose a sentence in which the maximum
penalty is life imprisonment with a minimum for a term of years
included in the same sentence.

36

 (3) In cases involving a major controlled substance offense
for which the court is directed by law to impose a sentence which
cannot be less than a specified term of years nor more than a
specified term of years, the court in imposing the sentence shall fix
the length of both the minimum and maximum sentence within those
specified limits, in terms of years or fraction thereof, and the
sentence so imposed shall be considered an indeterminate sentence.

The majority argues that, because this statute contains nothing to indicate

that the sanctions are determinate, it supports a reading of intermediate sanction

cell sentences as minimum sentences. But a reference to MCL 769.9 shows the

fallacy of this reasoning. MCL 769.9(1) limits the courts’ ability to impose

intermediate sanction cell sentences. It provides that intermediate sanctions may

not be used for offenses for which “the only punishment prescribed by law is

imprisonment for life.” It makes no other limitation, and no other should be read

into it.

The majority claims that nowhere does the Legislature state that

intermediate sanctions are an exception to the Michigan scheme of indeterminate

sentencing. But it is more accurate to assert that nowhere does the Legislature

indicate this except in the statutes creating intermediate sanctions. MCL

769.34(4)(a) makes clear that the maximum sentence possible, absent substantial

and compelling reasons to exceed it, is 12 months in jail. MCL 769.31(b) also

specifically allows for jail sentences. The Legislature wrote determinate sentences

into these statutes. There would be no point in endeavoring to do it more clearly.

And there was no need to do it anywhere else.

37

 In the final analysis, the point is irrelevant. What matters is not whether the

statute establishes intermediate sanction cell sentences as indeterminate or

determinate sentences. What is crucial is whether a defendant’s maximum

sentence can be increased as a result of judicial fact-finding. Cunningham, 127 S

Ct at 868. It is not significant that defendant’s sentence in this case was zero to 11

months in jail or simply 11 months in jail. In either case, the Sixth Amendment

would be violated by judicial fact-finding that increases the maximum sentence

above the 11-month mark. Id.

A. MICHIGAN’S MIXED DETERMINATE-INDETERMINATE
SENTENCING SCHEME

It seems that the preceding argument is a component of the majority’s

contention that Michigan has a true indeterminate sentencing scheme. I would

agree that Michigan generally has an indeterminate scheme in cases in which a

defendant’s PRV level places him or her somewhere other than in an intermediate

sanction cell.22 But I disagree with respect to cases in which the sentencing

scheme sets two possible maximums,23 which is exactly what occurs in cases

involving intermediate sanction cells. In such cases, the sentencing scheme

resembles the determinate sentencing schemes discussed in the Blakely line of

22
As has been noted, exceptions exist with respect to the crimes of first­
degree murder and felony-firearm.
23
Here the two possible maximums were 15 years (set by MCL 750.84 and
MCL 769.10) and 11 months (set by the guidelines).

38

cases. Blakely itself contains a discussion of the difference between indeterminate

and determinate schemes:

Justice O’Connor argues that, because determinate sentencing
schemes involving judicial factfinding entail less judicial discretion
than indeterminate schemes, the constitutionality of the latter implies
the constitutionality of the former. This argument is flawed on a
number of levels. First, the 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 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 10-year 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. [Blakely, 542 US at 308-309 (emphasis in original;
citation omitted).]

Once this reasoning is applied to the case at hand, it becomes apparent that

Michigan’s sentencing scheme is not a traditional indeterminate sentencing

scheme. It would be one thing if every second-offense habitual offender convicted

of assault with intent to do great bodily harm less than murder faced the same 15­

year maximum. Then, no problem would arise if judicial fact-finding resulted in a

sentence within the range of zero to 15 years. But that is not the case. Some

39

second-offense habitual offenders convicted of assault with intent to do great

bodily harm less than murder face a maximum sentence of 11 months in jail. They

are offenders whose criminal records and admissions, together with the jury’s

verdict, do not support an OV score.24 These offenders are entitled to a sentence

that is an intermediate sanction. Id.

Given that there are two possible maximum sentences for the offense in

question, a defendant is entitled to whichever is supported by the defendant’s

conviction, admissions, and criminal record alone. “[A]nd by reason of the Sixth

Amendment the [additional] facts bearing upon that entitlement must be found by

a jury.” Id. at 309. Therefore, if certain other facts are necessary to move the

defendant to the higher maximum sentence, they must be proved to the jury

beyond a reasonable doubt.

The majority ignores this unusual nature of Michigan’s intermediate

sanction cells as compared with a traditional indeterminate sentencing scheme.

Because intermediate sanction cells set maximum sentences, Michigan’s

sentencing scheme is distinct from the traditional indeterminate scheme. For Sixth

Amendment purposes, it is properly viewed as a mixture of determinate and

indeterminate sentencing schemes. This is because, as discussed in Blakely, a

traditional indeterminate scheme can have only one maximum sentence. Id. at

24
These would be the equivalent of Blakely’s “burglar who enters a home
unarmed . . . .” Blakely, 542 US at 309.

40

308-309. The fact that Michigan’s indeterminate scheme is different in this way

mandates that it be treated differently. The majority fails to honor this distinction.

The majority’s argument seems at least partially grounded in the argument

raised by the Prosecuting Attorneys Association of Michigan and the Attorney

General in their amici curiae brief. They assert that Michigan’s sentencing system

involves too much judicial discretion to violate the Sixth Amendment. They argue

that the amount of discretion involved in sentencing in Michigan makes our

system equivalent to traditional indeterminate systems. Cunningham specifically

rejected this argument:

The [California Supreme Court’s] conclusion that the upper
term, and not the middle term, qualifies as the relevant statutory
maximum, rested on several considerations. First, the court
reasoned that, given the ample discretion afforded trial judges to
identify aggravating facts warranting an upper term sentence, the
DSL

“does not represent a legislative effort to shift the proof of particular
facts from elements of a crime (to be proved to a jury) to sentencing
factors (to be decided by a judge) . . . . Instead, it afforded the
sentencing judge the discretion to decide, with the guidance of rules
and statutes, whether the facts of the case and the history of the
defendant justify the higher sentence. Such a system does not
diminish the traditional power of the jury.” [People v Black, 34 Cal
4th 1238, 1256; 29 Cal Rptr 3d 750; 113 P3d 534 (2005)] (footnote
omitted).

We cautioned in Blakely, however, that broad discretion to
decide what facts may support an enhanced sentence, or to
determine whether an enhanced sentence is warranted in any
particular case, does not shield a sentencing system from the force of
our decisions. If the jury’s verdict alone does not authorize the
sentence, if, instead, the judge must find an additional fact to impose
the longer term, the Sixth Amendment requirement is not satisfied.

41

 Blakely, 542 U.S., at 305, and n. 8, 124 S.Ct. 2531. [Cunningham,
127 S Ct at 868-869.]

The amount of discretion involved does not matter. What matters is what sentence

a defendant would have received solely on the basis of the jury’s verdict, his or

her prior record, and any admissions he or she made. Whatever sentence a

defendant would face as a maximum considering only these factors is the statutory

maximum. Any fact-finding that changes this maximum violates the Sixth

Amendment, regardless of how much discretion the trial court has in finding those

facts. Id.

Both Blakely and Booker make clear that it is irrelevant that the possibility

exists for the judge to depart from the statutory maximum sentence in some

circumstances. Under Blakely, the statutory maximum in this case remains the 11­

month intermediate sanction sentence, even though the judge was empowered to

increase it after additional fact-finding. Blakely succinctly explained the Supreme

Court’s reasoning on this point:

The judge in this case could not have imposed the exceptional
90-month sentence solely on the basis of the facts admitted in the
guilty plea. Those facts alone were insufficient because, as the
Washington Supreme Court has explained, “[a] reason offered to
justify an exceptional sentence can be considered only if it takes into
account factors other than those which are used in computing the
standard range sentence for the offense,” [State v] Gore, [143 Wash
2d 288, 315-316; 21 P3d 262 (2001)], which in this case included
the elements of second-degree kidnapping and the use of a firearm,
see [Wash Rev Code] 9.94A.320, 9.94A.310(3)(b). Had the judge
imposed the 90-month sentence solely on the basis of the plea, he
would have been reversed. See [Wash Rev Code] 9.94A.210(4).
The “maximum sentence” is no more 10 years here than it was 20

42

 years in Apprendi (because that is what the judge could have
imposed upon finding a hate crime) or death in Ring (because that is
what the judge could have imposed upon finding an aggravator).
[Blakely, 542 US at 304.]

In this case, the statutory maximum was 11 months in jail. Only the

judicial fact-finding necessary to score the OV factors allowed the judge to impose

the higher maximum sentence. Had the judge sentenced defendant to a maximum

of 15 years without scoring the OVs or making additional fact-finding, he would

have committed an error requiring reversal. The same rule of law applies as in

Ring, Blakely, Booker, and Cunningham. Therefore, there is a Sixth Amendment

violation in this case, regardless of the fact that the trial judge exercised the

discretion that the sentencing guidelines allowed.

B. THE COURT’S COMPANION DECISION IN HARPER

In its decision in Harper, the majority relies heavily on the fact that

probation is one of the possible intermediate sanctions provided for in MCL

769.31(b). It believes that this fact presents a strong indication that intermediate

sanction cell sentences are not really maximum sentences, despite the language of

MCL 769.34(4)(a). It is true, as the majority contends, that probation is a matter

of grace. MCL 771.4. It may be revoked without a jury trial or proof beyond a

reasonable doubt. United States v Knights, 534 US 112, 120; 122 S Ct 587; 151 L

Ed 2d 497 (2001). But, again, this consideration is simply irrelevant to the

question at hand.

43

 It is not relevant that a court may revoke probation without violating the

Sixth Amendment. What matters is what the court may do after it revokes

probation. “If a probation order is revoked, the court may sentence the

probationer in the same manner and to the same penalty as the court might have

done if the probation order had never been made.” MCL 771.4. This does not

require the court to impose the same sentence it could have imposed at the initial

sentencing. But after a probation violation, the court still is required to follow the

sentencing guidelines. People v Hendrick, 472 Mich 555, 560; 697 NW2d 511

(2005). Therefore, the sentencing court is in the same position before and after a

probation violation.

A sentencing court is not free to impose any sentence it may wish after a

probation violation. Instead, it must comply with the same guidelines as before

probation. And just as before probation, it can impose a sentence departing from

the sentencing guidelines range only if it makes judicial findings of fact that

substantial and compelling reasons exist to depart. The sentencing court may

consider the defendant’s postprobation conduct when determining if substantial

and compelling reasons exist. But the fact that probation was violated does not

automatically constitute a substantial and compelling reason. See id. at 562-563.

The trial court still can depart from the guidelines range only if it makes findings

of fact at sentencing justifying the departure. Because of this, a probation

violation changes nothing for purposes of the Sixth Amendment analysis.

44

 Although the trial court did not impose probation in this case, the facts of

this case can be used for demonstration purposes. If only the PRVs had been

scored, defendant’s minimum sentence range would have been zero to 11 months.

MCL 777.21(3)(a); MCL 777.65. Because the cell involved is an intermediate

sanction cell, MCL 769.34(4)(a) provides that defendant’s maximum sentence

would have been 11 months in jail. The sentencing court could have imposed

probation rather than a jail term. MCL 769.31(b). If, later, defendant had violated

that probation, the court could have revoked the probation and resentenced

defendant. But when it did so, it still would have had to comply with the

guidelines. Hendrick, 472 Mich at 560. Defendant again would have fallen into

the zero- to 11-month guidelines range. Again, his maximum sentence would

have been 11 months in jail, absent substantial and compelling reasons to exceed

the maximum. MCL 769.34(4)(a). Because a maximum sentence is involved, the

Blakely bright-line rule would apply. “Except for 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.’”

Cunningham, 127 S Ct at 868, quoting Apprendi, 530 US at 490.

Increasing a defendant’s maximum sentence solely on the basis of judicial

fact-finding violates the Sixth Amendment just as much after a probation

revocation as it does before. A defendant who has violated probation could be

sentenced to no more than the original maximum sentence that was based on the

45

jury’s verdict. The court has no right to impose a new maximum simply because

of the violation. Cunningham, 127 S Ct at 868.

In Harper, the majority relies heavily on United States v Ray25 to support

its argument that Blakely’s bright-line rule does not apply to resentencing after

probation. Ray is highly distinguishable. Unlike the Michigan probation system,

the federal system at issue in Ray did not mandate resentencing under the federal

sentencing guidelines. It imposed a completely new sentence based on the

violation.

The federal criminal sentencing system has a process called supervised

release. Federal supervised release differs from probation in that it is imposed in

addition to imprisonment, rather than instead of it. Samson v California, __ US

__; 126 S Ct 2193, 2198; 165 L Ed 2d 250 (2006), quoting United States v Reyes,

283 F3d 446, 461 (CA 2, 2002). 18 USC 3583 allows a federal court at

sentencing to impose a term of supervised release distinct from the time for

incarceration set by the federal sentencing guidelines. That same statute

authorizes a new maximum sentence that can be imposed after revocation of

supervised release. 18 USC 3583(e)(3).

Therefore, a federal court imposing sentence after a revocation of

supervised release does not return to the sentencing guidelines to impose a

sentence. It turns to the new sentence allowed by 18 USC 3583. Given that the

46

federal system allows supervised release in addition to incarceration, a defendant

faces this possible sentence from the beginning. It is not a judicially created

increase in the defendant’s statutory maximum sentence. It is a sentence created

by the Legislature and faced by a defendant from the time that he or she commits

the crime.

C. MICHIGAN’S PROBATION SYSTEM

This differs from Michigan’s probation system. Michigan has no statute

equivalent to 18 USC 3583. Rather than facing a new sentence set by statute

specifically for the probation violation, a Michigan defendant is merely

resentenced under the guidelines. Hendrick, 472 Mich at 560. Therefore, a

Michigan defendant does not face an increased maximum in every case. A

Michigan court can move a defendant out of an intermediate sanction cell after

probation only by making judicial findings of fact using a preponderance of the

evidence standard. Again, because these findings of fact increase the defendant’s

statutory maximum sentence, they violate Blakely’s bright-line rule. Cunningham,

127 S Ct at 868.

A Michigan court imposing prison after a probation violation in an

intermediate sanction cell case equates to a federal court imposing a sentence

exceeding that allowed by 18 USC 3583 for revocation of supervised release. In

(…continued)
25
484 F3d 1168 (CA 9, 2007).

47

both cases, the sentencing court is limited to the maximum sentence set by the

Legislature. And in both instances, the imposition of a longer sentence violates

the Sixth Amendment.

A similar distinction exists between the federal probation system and the

Michigan probation system. Unlike a Michigan probationer, a federal probationer

who violates the conditions of probation is not resentenced under the federal

sentencing guidelines. Rather, the court must refer to a nonbinding policy

statement released by the United States Sentencing Commission. United States v

Goffi, 446 F3d 319, 322 (CA 2, 2006). The Court of Appeals for the Second

Circuit explained why Blakely does not apply to sentencing after a federal

probation violation:

The statutory scheme thus requires a sentencing court to
consider a variety of factors, including the non-binding policy
statements applicable to probation violations, in determining an
appropriate sentence. Nowhere, however, does it require a court to
sentence within the Guidelines range for the underlying conviction
in determining punishment for separate and distinct malfeasance by
the defendant—violation of probation. . . . United States v. Pena,
125 F.3d 285, 287 (5th Cir.1997) (“Because there are no guidelines
for sentencing on revocation of probation, and because the district
court was not limited to the sentencing range available at the time of
the initial sentence, we find no error in the trial court’s failure to
employ the analysis normally required in departure case[s].”) . . . .
[Id. at 322-323 (emphasis added).]

The exact opposite is true in Michigan. The guidelines continue to apply to

a Michigan defendant. Hendrick, 472 Mich at 560. The sentencing court is

limited to the sentence range available at the time of the initial sentence. And the

48

probation violation is not treated as a separate malfeasance in Michigan. People v

Kaczmarek, 464 Mich 478, 483-484; 628 NW2d 484 (2001).

These fundamental differences between Michigan’s system and the federal

system mandate different results in applying Blakely’s bright-line rule. Because

none of the factors relied on by the federal courts exists in Michigan, Blakely

continues to apply after probation revocation in Michigan. This completely

undermines the majority’s argument that, because of the possibility of probation as

an intermediate sanction, intermediate sanction cells produce a minimum rather

than a maximum sentence.26

Further undermining the majority’s theory is the fact that, in practice,

Michigan treats intermediate sanction cell sentences as maximum sentences.

When a defendant receives an intermediate sanction that includes only a jail

sentence, he or she faces that sentence and nothing more. A defendant who

receives an 11-month jail sentence is released from supervision at the end of 11

months. The court does not review the case after 11 months to determine if more

26
The majority simply disregards the reasoning of Goffi and Pena. And, in
doing so, it disregards the distinctions between the two systems. See Harper, 479
Mich ___ at n 51. In fact, the two systems differ greatly. In the federal system, a
court no longer sentences under the guidelines, probation is viewed as a distinct
malfeasance, and the former statutory maximum no longer applies. Goffi, 446 F3d
at 322-323; Pena, 125 F3d at 287. In Michigan, probation is not a separate
offense. The guidelines still apply, and the defendant remains subject to the
statutory maximum sentence created by MCL 769.34(4)(a). Therefore, unlike the
federal system, the Michigan system is still subject to the Blakely bright-line rule
after a defendant violates probation.

49

incarceration is warranted. Simply, the defendant finishes the sentence and is

released from jail. Therefore, an intermediate sanction cell sentence that includes

a jail term is treated just like any other maximum sentence.

In Harper, the majority further argues that intermediate sanctions must be

minimum sentences because a defendant subject to them can be given a sentence

of probation with jail. It argues that recognizing that intermediate sanction cell

sentences are statutory maximum sentences will limit the effectiveness of

imposing such sentences. Although it is true that MCL 769.31(b)(iv) allows for

intermediate sanction cell sentences that include both probation and jail, the

majority’s reliance on this point is irrelevant.

The Legislature has determined that a sentence of 12 months in jail is an

appropriate statutory maximum sentence for defendants who merit an intermediate

sanction.27 Our constitution vests the Legislature with the ultimate authority to set

criminal penalties. Const 1963, art 4, § 45; People v Hegwood, 465 Mich 432,

436; 636 NW2d 127 (2001). The Legislature inserted the 12-month limit on jail

sentences in MCL 769.34(4)(a). Only the Legislature, not this Court, may

increase this limit. Someone who believes that the 12-month cap is insufficient

can petition the Legislature to amend the statute. But the Court cannot ignore the

27
“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 769.34(4)(a).

50

statutory maximum sentence and a defendant’s Sixth Amendment rights with

regard to it because the Court finds the statutory penalty insufficient.

For example, those who believe that 12 months is insufficient incarceration

to punish probation violators could petition the Legislature to change Michigan’s

probation system to mimic the federal system. The Legislature could follow the

lead of Goffi and treat a probation violation as a separate malfeasance. It could

make probation violation subject, not to the guidelines for the underlying offense,

but to independent punishment. See Goffi, 446 F3d at 322-323; Pena, 125 F3d at

287. If the Legislature effected such a change, it could eliminate the Sixth

Amendment violation now lurking in the Michigan system. But, again, this

decision must be left to the Legislature.

Ultimately, and most importantly, the majority cannot disregard the Sixth

Amendment simply because it is convenient for purposes of the status quo or

because it comports with legislative intent. Blakely specifically rejected any such

approach:

Ultimately, our decision cannot turn on whether or to what
degree trial by jury impairs the efficiency or fairness of criminal
justice. One can certainly argue that both these values would be
better served by leaving justice entirely in the hands of
professionals; many nations of the world, particularly those
following civil-law traditions, take just that course. There is not one
shred of doubt, however, about the Framers’ paradigm for criminal
justice: not the civil-law ideal of administrative perfection, but the
common-law ideal of limited state power accomplished by strict
division of authority between judge and jury. As Apprendi held,
every defendant has the right to insist that the prosecutor prove to a

51

 jury all facts legally essential to the punishment. [Blakely, 542 US at
313 (emphasis in original).]

It might be easier to continue the current modus operandi: to punish

probation violators by allowing judges to increase their statutory maximum

sentence by using findings of fact not supported by the violator’s prior record or

admissions or a jury’s verdict. But the Sixth Amendment does not allow courts to

disregard defendants’ rights just because making a correction would require the

judicial system to undergo change. Id.

The majority is also incorrect in relying on its belief that the Legislature

intended that probation violators be punished with more than 12 months in jail.

Even if the Legislature intended that punishment, it is irrelevant. This fact was

made obvious by the decision in Ring. The Arizona legislature intended that a

sentence of death should be imposed in first-degree murder cases in which

aggravating factors existed. Ring, 536 US at 592-593. But the Supreme Court

found that this intent could not be effectuated in light of the Sixth Amendment.

Notwithstanding the Arizona legislature’s intent, the judicial fact-finding that

increased Ring’s maximum sentence to the death penalty violated Blakely’s bright­

line rule: “If a State makes an increase in a defendant’s authorized punishment

contingent on the finding of a fact, that fact—no matter how the State labels it—

must be found by a jury beyond a reasonable doubt.” Id. at 602.

Moreover, the proper application of the Sixth Amendment to Michigan’s

intermediate sanction cells need not weaken an intermediate sanction cell sentence

52

of probation with jail. The system easily could be made to comply with Blakely.

For example, this Court could amend our court rules to provide for a jury to be

impaneled after a court finds a probation violation. If the jury then found beyond

a reasonable doubt the facts necessary to move the defendant from an intermediate

sanction cell, there would be no Sixth Amendment violation. Therefore, Michigan

could both retain its current probation system and protect a defendant’s

constitutional rights.

In sum, intermediate sanction cells require a sentence that contains all the

attributes of, and is in fact, a maximum sentence. This maximum sentence can be

increased only by using judicial fact-finding occurring after the jury’s verdict.

This makes the intermediate sanction cell sentence equivalent to the middle term

sentence under California’s sentencing scheme. Cunningham, 127 S Ct at 868.

Both sentences amount to the statutory maximum for Apprendi purposes. And a

court violates the Sixth Amendment when it sentences a defendant to a sentence

longer than this statutory maximum using judicial fact-finding. Id. at 870.

VIII. HARMLESS ERROR

The majority concludes that, even if defendant’s sentence violated Blakely,

the error was harmless. I disagree. While it is true that Blakely violations are

subject to harmless error review, I believe that the error in this case was not

harmless beyond a reasonable doubt.

53

 The Supreme Court concluded that Blakely errors are not structural errors

requiring automatic reversal. Washington v Recuenco, __ US __; 126 S Ct 2546,

2553; 165 L Ed 2d 466 (2006). The Court reasoned that sentencing factors are the

equivalent of the elements of the crime, which must be proved to a jury beyond a

reasonable doubt. Id. at 2552. “‘[A]n instruction that omits an element of the

offense does not necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.’” Id. at 2551, quoting Neder

v United States, 527 US 1, 9; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (emphasis in

original). Given that the failure to present a sentencing factor to a jury is the

equivalent of the failure to submit an element of the offense, it cannot be a

structural error. Recuenco, 126 S Ct at 2552.

The majority reviews this issue under a plain error standard because

defendant did not raise a constitutional challenge at sentencing. But the trial court

sentenced defendant before the United States Supreme Court decided Blakely.

Given that Blakely was a seminal case and significantly clarified Sixth

Amendment rights, I believe that it is excusable for defendant not to have raised

the issue before Blakely was decided. The appropriate standard of review is

whether the omission of an element of the offense is harmless beyond a reasonable

doubt. Neder, 527 US at 18-19.

Of course, safeguarding the jury guarantee will often require
that a reviewing court conduct a thorough examination of the record.
If, at the end of that examination, the court cannot conclude beyond
a reasonable doubt that the jury verdict would have been the same

54

 absent the error—for example, where the defendant contested the
omitted element and raised evidence sufficient to support a contrary
finding—it should not find the error harmless. [Id. at 19.]

This case involves three specific findings of fact. For OV 1, the court

found that a weapon, other than a gun or knife, touched the victim. For OV 2, it

found that defendant possessed a potentially lethal weapon. And for OV 3, it

found that the victim suffered a life threatening or permanent incapacitating injury.

None of these findings is an element of the charged offense of assault with

intent to do great bodily harm less than murder. MCL 750.84. Therefore, the jury

would have had to make special findings of fact to support an increase in the

maximum sentence in this case. Michigan has no procedure for criminal juries to

use to make such special findings.28 See MCR 6.420.29 This procedural

28
In Harper, 479 Mich at ___ n 70, the majority mistakenly states that this
Court has left open the question of special verdicts in criminal cases. The majority
actually relies on a proposition in Justice Levin’s dissenting opinion in People v
Ramsey, 422 Mich 500; 375 NW2d 297 (1985), to reach this conclusion. In fact,
this Court specifically rejected special findings by a jury in a criminal case as long
ago as 1874. In People v Marion, 29 Mich 31, 40 (1874), the Court rejected the
defendant’s claim that a statute allowing special findings in civil trials should
apply to criminal trials as well:
The only remaining question relates to the refusal of the court
to direct the jury to find specially upon certain particular points of
fact. The statute which provides for this practice is found in a
chapter relating to the “Trial of issues of fact” (chap. 103, R. S.; ch.
189, C. L., 1871), the general purpose of which is to regulate the trial
of civil causes, and many of its provisions are not only inapplicable
but repugnant to the rules in criminal cases. There is a separate
chapter devoted to “Trials in criminal cases” (ch. 165, R. S.; ch. 261,
Comp. L., 1871), covering the same ground for them that is covered
by the other chapter in regard to civil cases.
(continued…)

55

deficiency is significant. The United States Supreme Court has stated that the lack

of a procedure enabling a jury to make a finding suggests that a defendant will

succeed in demonstrating the Blakely violation was not harmless. Recuenco, 126

(…continued)
Unless an intention to the contrary is apparent, it would create
much difficulty and confusion to blend the two sets of regulations,
and presumptively the chapters must be confined to their respective
purposes.

In fact, the Court stated that allowing special findings in criminal cases would be
revolutionary. Id. at 41; see also People v Roat, 117 Mich 578, 583; 76 NW 91
(1898). Until today, this Court has never questioned the holding of these cases.

The Court of Appeals cases cited by the majority also do not support the
majority’s contention that special findings are permissible in criminal trials. Both
cases mentioned “special verdict forms” merely in passing. And both of these
references were directed at forms that would allow the court to distinguish
multiple charges for the same offense. Neither case dealt with special findings
made by a jury beyond a general verdict for the individual offense. People v
Kiczenski, 118 Mich App 341, 345; 324 NW2d 614 (1982); People v Matuszak,
263 Mich App 42, 51; 687 NW2d 342 (2004). Neither case can fairly be
characterized as creating the “revolution” cautioned against in Marion and Roat.
And, contrary to the majority’s contention, this area of law appears well settled.
29
In Harper, the majority also argues that special findings are permissible
in criminal trials because the court rules allow for the application of the rules of
civil procedure to criminal proceedings in certain circumstances. First, this is
essentially the same argument that this Court rejected in Marion, 29 Mich at 40.
Second, MCR 6.001(D)(2) specifically limits the application of the rules of civil
procedure “when it clearly appears that they apply to civil actions only[.]” Given
that this Court rejected the availability of special findings to criminal trials, it is
clear that MCR 2.514 applies only to civil actions. Third, MCR 6.001(D)(3)
indicates that the civil rules do not apply when a “court rule provides a like or
different procedure.” MCR 6.420 provides a similar but different standard for the
returning of jury verdicts in criminal cases. Hence, this standard, which does not
include special findings, takes precedence over the procedures allowed in MCR
2.514.

56

S Ct at 2550. In this case, the lack of a procedure renders more difficult the

prosecution’s burden of showing that the error was harmless.30

Both OV 1 and OV 2 deal with possession of a weapon. The majority

argues that the evidence that defendant possessed a weapon was overwhelming

and uncontested. But this argument is unfair. At trial, defendant had no

opportunity or reason to contest the evidence regarding the weapon. It was not an

element of the offense or relevant to defendant’s defense strategy. For defendant

to have objected to the existence of a weapon would have been distracting,

irrelevant, and potentially confusing to the jury. Given that there was no reason or

opportunity to present evidence on this point, defendant can hardly be faulted for

not doing so.

Moreover, the evidence regarding the use of a weapon was in fact

contested. One key prosecution witness, Gregory Thompson, testified that

defendant did not use a weapon but beat the complainant with his fists.31 And no

30
The majority accuses me of effectively finding all Blakely errors
“harmful per se.” Ante at 23 n 17. This is inaccurate. I acknowledge that the
Blakely error in Recuenco was not harmful per se. But when I apply the words of
the United States Supreme Court, it is not clear to me that Blakely errors in
Michigan may be harmless beyond a reasonable doubt. This is because, as the
Supreme Court advises, the lack of a procedure will increase the difficulty of the
prosecution’s burden to prove any error harmless beyond a reasonable doubt. And
Michigan lacks a procedure. If the jury has no means of making the finding, how
can a reviewing court presume that the jury would have made that finding
regardless of the prohibition against it?
31
I have not mischaracterized Thompson’s testimony, as the majority
claims. During initial questioning, Thompson stated that defendant indicated that
(continued…)

57

weapon was ever found at the scene of the offense. This evidence contradicts the

conclusion that a weapon was involved. Because of this, the prosecution cannot

demonstrate beyond a reasonable doubt that a jury would have made the findings

of fact necessary to score OV 1 and OV 2.

OV 3 deals with the injury suffered by the complainant. To warrant 25

points under OV 3, there must be a “[l]ife threatening or permanent incapacitating

injury . . . .” MCL 777.33(1)(c). While there was evidence that the complainant’s

injuries were significant, there was no specific evidence that they were life

threatening or permanently incapacitating. This lack of evidence precludes a

conclusion that the error was harmless.

No medical expert testified at trial. And defendant’s medical records were

not submitted to the jury. Again, this is because neither defendant nor the

prosecution had any reason to argue these issues at trial. Without some medical

evidence of permanent incapacitation or that the injuries were life threatening, a

jury could not have made such a determination beyond a reasonable doubt.32

(…continued)

defendant beat the complainant with his fists. During cross-examination,

Thompson stated that it was possible that defendant used a weapon.

32
An argument can be made that the evidence presented at trial supports a
finding that the complainant suffered bodily injury requiring medical treatment.
This evidence, it could be argued, would justify 10 points under OV 3. MCL
777.33(1)(d). But given that the prosecution never made this argument on appeal,
it is not properly before the Court.
(continued…)

58

Hence, the prosecution cannot carry its burden to prove that the Blakely error

occurring in this case was harmless beyond a reasonable doubt. Neder, 527 US at

18-19.33

There is insufficient evidence that the jury would have made the findings of

fact necessary to score the OVs. This is especially true in light of the fact that

there are no procedures in place for a jury to make special findings in a criminal

trial in Michigan. Therefore, the prosecution did not carry its burden. Id.;

Recuenco, 126 S Ct at 2550. Defendant must be resentenced in a manner

consistent with the Sixth Amendment.

(…continued)
Even if the prosecution had made this argument, however, it would not
have rendered the error in defendant’s sentence harmless beyond a reasonable
doubt. A score of 10 points would have given defendant a PRV score of 2 and an
OV score of 10. This would have placed him in the B-II cell of the class D grid.
MCL 777.65. The B-II cell sets a range of zero to 13 months for a second-offense
habitual offender. MCL 777.65; MCL 777.21(3)(a). This is still an intermediate
sanction cell. Defendant’s statutory maximum sentence would have increased
from 11 months to 12 months in jail. MCL 769.34(4)(a). Hence, imposition of a
15-year maximum sentence would still have violated Blakely’s bright-line rule.
33
The majority summarily concludes that no medical evidence was
necessary in this case. Its conclusion is contrary to the statute, which requires
proof of “[l]ife threatening or permanent incapacitating injury . . . .” MCL
777.33(1)(c). The majority also inappropriately shifts to defendant the burden to
disprove the nature of the injuries. This is inconsistent with harmless error review,
which is required here. Moreover, it is inconsistent with the very nature of
criminal trials, which mandates that the prosecution, not the defense, prove the
elements of the crime charged beyond a reasonable doubt.

59

 IX. CONCLUSION

Although it concedes that Cunningham presented nothing new and that it

must follow the precedent of the Blakely line of cases, the majority reaffirms its

previous decision in this case. In essence, the majority states today that the United

States Supreme Court did not comprehend the majority’s previous decision and

misunderstood Michigan law.

The maximum sentence resulting from an intermediate sanction cell is a

true statutory maximum for purposes of Cunningham. A court cannot increase

this maximum sentence by scoring the OVs without violating the Sixth

Amendment. Finally, the sentencing error in this case was not harmless, because

the OVs were scored using facts that were not supported by overwhelming

evidence.

I take the Supreme Court’s order for what it is: an indication that there is a

Sixth Amendment problem with Michigan’s sentencing guidelines. This case

illustrates that a grave constitutional violation occurs in this state when Blakely is

correctly applied. Specifically, the judicial fact-finding that moved defendant

from an intermediate sanction cell to a straddle cell violated his Sixth Amendment

right to trial by jury.

60

 Defendant’s sentence should be vacated, and the case should be remanded

to the trial court for resentencing. The Michigan sentencing guidelines statutes

should be held unconstitutional as applied in this case.34

Marilyn Kelly

34
Because this is a remand from the United States Supreme Court, I believe
that it is not necessary to address here the cure for the constitutional violation. I
continue to believe what I articulated in my prior dissenting opinion. Given that a
large portion of Michigan’s sentencing guidelines involve intermediate sanction
cells that intertwine with the rest of the guidelines, the unconstitutional sections
cannot be severed. Therefore, the entire guidelines must be found unconstitutional
when applied as they were in this case. In future cases, Michigan trial judges
should implement a bifurcated hearing system. And the prosecution should be
required, after a guilty verdict, to submit the facts not admitted but necessary for
scoring the OVs to a jury for resolution beyond a reasonable doubt. For a more
thorough discussion of this issue, I refer the reader to my previous dissent.
McCuller, 475 Mich at 208-213 (Kelly, J., dissenting).

61

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128161

RAYMOND A. MCCULLER,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

I agree with the result advocated by Justice Kelly in her dissent because it

comports with my position in this case the first time it was before this Court. See

People v McCuller, 475 Mich 176, 214; 715 NW2d 798 (2006) (Cavanagh, J.,

dissenting). When dealing with intermediate sanctions, I believe that the

requirements set forth by the United States Supreme Court in Blakely v

Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), and further

applied in Cunningham v California, ___ US ___; 127 S Ct 856; 166 L Ed 2d 856

(2007), must be followed. Thus, the trial court improperly engaged in judicial

fact-finding, and this case should be remanded for resentencing.

Michael F. Cavanagh