Order Michigan Supreme Court
Lansing, Michigan
June 30, 2006 Clifford W. Taylor,
Chief Justice
130490 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 130490
COA: 266592
Wayne CC: 05-001679-01
JANIS LEE FERWORN,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 3, 2006 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
CAVANAGH, J., would grant leave to appeal.
KELLY, J., dissents and states as follows:
This case presents an important issue regarding the application of Blakely v
Washington1 to the Michigan sentencing guidelines, MCL 777.1 et seq.2 Although this
Court recently decided two cases3 concerning the applicability of Blakely, they do not
control this appeal.
Defendant pleaded nolo contendere to a charge of embezzlement by an agent or
trustee of more than $20,000. MCL 750.174(5)(a). The sentencing guidelines make this
a class D offense. MCL 777.16i. The trial court scored defendant’s prior record variable
level at zero points and her offense variable level at ten points. In the class D sentencing
grid of the guidelines, a PRV level of zero points and an OV level of ten points placed
1
542 US 296 (2004).
2
For a full discussion of Blakely’s impact on the sentencing guidelines, please review my
dissenting opinion in People v McCuller, 475 Mich ___ (2006).
3
McCuller and People v Drohan, 475 Mich ___ (2006).
2
defendant in the A-II cell. This cell provides a minimum sentence range of zero to nine
months. MCL 777.65. Because its upper limit is under 18 months, the A-II cell is
referred to as an “intermediate sanction cell.” MCL 769.34(4)(a) provides:
If the upper limit of the recommended minimum sentence range for a
defendant determined under the sentencing guidelines set forth in chapter
XVII is 18 months or less, the court shall impose an intermediate sanction
unless the court states on the record a substantial and compelling reason to
sentence the individual to the jurisdiction of the department of corrections.
An intermediate sanction may include a jail term that does not exceed the
upper limit of the recommended minimum sentence range or 12 months,
whichever is less.
Under MCL 769.34(4)(a), the guidelines set the maximum sentence to which the
defendant may be sentenced. The guidelines statutes do not permit a court to sentence to
prison a defendant who 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).
In this case, the trial court departed from the sentencing guidelines
recommendation on the basis of several factors that it found to be substantial and
compelling. At the time of sentencing, the facts underlying the reasons for departure had
not been admitted by defendant or proven to a jury beyond a reasonable doubt. Instead,
they were found by the trial court using a preponderance of the evidence standard.
This process raises serious Sixth Amendment concerns. In Blakely, the United
States Supreme Court stated:
Our precedents make clear . . . that the “statutory maximum” for
Apprendi[4] 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. [Blakely, 542 US
303-304 (emphasis in original; citations omitted).]
In this case, the trial judge rendered a sentence not allowed by defendant’s criminal
history or her admissions. Instead, he imposed the sentence after making additional fact-
4
Apprendi v New Jersey, 530 US 466 (2000).
3
finding. This exceeded his constitutional authority. Id. Therefore, defendant’s sentence
is clearly called into question by Blakely.
This constitutional problem must be resolved. Under McCuller, a defendant is
legally entitled to an intermediate sanction if, after the OVs and the PRVs have been
scored, the guidelines’ maximum sentence is 18 months or less. McCuller, 475 Mich
___; slip op, p 5. McCuller was not entitled to the statutory maximum sentence set by the
intermediate sanction cell because his score was outside the intermediate sanction cell
after the OVs were scored. But, in this case, defendant’s score was not outside the
intermediate sanction cell after the OVs were scored. Therefore, following the majority’s
reasoning in McCuller, she was legally entitled to an intermediate sanction.
The majority refuses to examine the ramifications of this legal entitlement to an
intermediate sanction cell sentence in light of Blakely. Instead, it ignores the issue and
denies leave to appeal. I believe that defendant should have a full review of the serious
constitutional issue raised by her sentence. Accordingly, I would grant leave to appeal. I
call on the majority to explain why it would not.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 30, 2006 _________________________________________
d0627 Clerk