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
FILES JUNE 14, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 126371
DARIN HENDRICK,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
In this case, we consider whether the legislative
sentencing guidelines apply to sentences imposed after a
probation violation and whether a defendant’s conduct while
on probation can be considered as a substantial and
compelling reason for departure from the legislative
sentencing guidelines.
The legislative sentencing guidelines apply to certain
enumerated felonies committed on or after January 1, 1999.
MCL 777.1 et seq.; MCL 769.34(2). The language of MCL
769.34(2) is very clear. It lists no exceptions. Thus,
the legislative guidelines would apply to defendant’s
sentence, even if the sentence follows the imposition and
revocation of probation.
Further, MCL 771.4 states that if probation is
revoked, the court may sentence the probationer to the same
penalty as if probation had never been granted, but does
not require that the same penalty be imposed. Thus, the
sentencing court is not precluded from considering events
surrounding the probation violation when sentencing the
defendant on the original offense.
The Court of Appeals1 correctly held that the
sentencing guidelines apply to sentences imposed after a
probation violation and that acts giving rise to the
probation violation may constitute substantial and
compelling reasons to depart from the guidelines. It
incorrectly held that the acts giving rise to the probation
violation in this case were already considered in
connection with the prior record variables and offense
variables. We thus affirm in part and reverse in part the
judgment of the Court of Appeals, vacate the sentence, and
remand this case to the trial court for resentencing.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
On March 20, 2000, defendant pleaded guilty to a
charge of attempted first-degree home invasion, MCL 750.92;
1
261 Mich App 673; 683 NW2d 218 (2004).
2
MCL 750.110a(2). Defendant was sentenced to a five-year
term of probation, with the first year to be served in
jail. On April 9, 2001, defendant pleaded guilty to a
charge of possession of a Molotov cocktail, MCL 750.211a.
The trial court again sentenced him to a five-year term of
probation, with the first year to be served in jail. On
July 23, 2001, defendant was arrested yet again for
violating the terms of his probation by possessing a
shotgun while walking on a public street.
On August 23, 2001, the trial court revoked
defendant’s two probationary sentences and sentenced him to
one to five years of imprisonment for the attempted home
invasion and ten to twenty years of imprisonment for
possession of a Molotov cocktail. The legislative
sentencing guidelines range for the Molotov cocktail
conviction was twelve to forty-eight months in prison, thus
making defendant’s ten-year minimum sentence a departure if
the guidelines applied. The trial court, however, did not
believe that the guidelines applied to sentences imposed
after probation violation. Accordingly, it did not apply
the guidelines in determining defendant’s sentence.
The Court of Appeals denied leave to appeal. In lieu
of granting leave to appeal, we remanded this case to the
Court of Appeals for consideration as on leave granted and
directed it to consider (1) whether the legislative
3
sentencing guidelines apply to sentences imposed after a
probation violation, and (2) if not, whether a sentencing
court may consider the principles of proportionality
discussed in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990).2
The Court of Appeals held that the legislative
sentencing guidelines were indeed applicable to sentences
imposed after probation revocation. The panel further
noted that in “exceptional cases,” the circumstances
causing the probation revocation could constitute a
“substantial and compelling” reason for an upward
departure. The Court of Appeals, however, remanded for
resentencing, concluding that the reasons articulated by
the trial court were not “substantial and compelling.”
The prosecutor sought leave to appeal, contending that
the legislative sentencing guidelines do not apply to
sentences imposed after a probation violation. In the
alternative, the prosecution argued that if the guidelines
were applicable, the conduct constituting the probation
violation provided an automatic substantial and compelling
reason for departure from the guidelines.
2
468 Mich 918 (2003).
4
We granted the prosecution’s application for leave to
appeal.3
II. STANDARD OF REVIEW
Whether the legislative sentencing guidelines apply to
sentences imposed after probation revocation is a question
of law that we review de novo. People v Rodriguez, 463 Mich
466, 471; 620 NW2d 13 (2000). Similarly, whether conduct
resulting in the revocation of probation may constitute a
“substantial and compelling” reason for an upward departure
from the legislative sentencing guidelines is also a
question of law subject to review de novo. Id.
III. ANALYSIS
A. The legislative sentencing guidelines apply to sentences
imposed after probation revocation.
The legislative sentencing guidelines apply to certain
enumerated felonies committed on or after January 1, 1999.
MCL 777.1 et seq.; MCL 769.34(2).4 It is undisputed that
the guidelines apply to the felonies defendant committed in
this case—possession of a Molotov cocktail and attempted
3
471 Mich 914 (2004).
4
MCL 769.34(2) provides, in relevant part, that “the
minimum sentence imposed by a court of this state for a
felony enumerated in part 2 of chapter XVII committed on or
after January 1, 1999 shall be within the appropriate
sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed.”
5
home invasion. It is also undisputed that defendant’s
underlying crimes were committed after January 1, 1999.
Thus, the legislative sentencing guidelines apply, even if
the sentence follows the imposition and revocation of
probation, because the language of MCL 769.34(2) is clear
and lists no exceptions. We therefore agree with the Court
of Appeals that the guidelines apply to all enumerated
felonies committed on or after the effective date, whether
or not the sentence is imposed after probation revocation.5
B. The act giving rise to the probation violation may
provide a substantial and compelling reason to depart from
the legislative sentencing guidelines.
MCL 771.4, which governs probation and revocation of
probation, states:
It is the intent of the legislature that the
granting of probation is a matter of grace
conferring no vested right to its continuance. If
during the probation period the sentencing court
determines that the probationer is likely again
to engage in an offensive or criminal course of
conduct or that the public good requires
revocation of probation, the court may revoke
probation. All probation orders are revocable in
any manner the court that imposed probation
considers applicable either for a violation or
attempted violation of a probation condition or
for any other type of antisocial conduct or
action on the probationer's part for which the
court determines that revocation is proper in the
public interest. Hearings on the revocation shall
be summary and informal and not subject to the
5
The judicially created sentencing guidelines,
however, do not apply to probation revocation cases.
6
rules of evidence or of pleadings applicable in
criminal trials. In its probation order or by
general rule, the court may provide for the
apprehension, detention, and confinement of a
probationer accused of violating a probation
condition or conduct inconsistent with the public
good. The method of hearing and presentation of
charges are within the court's discretion, except
that the probationer is entitled to a written
copy of the charges constituting the claim that
he or she violated probation and to a probation
revocation hearing. The court may investigate and
enter a disposition of the probationer as the
court determines best serves the public interest.
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. This
section does not apply to a juvenile placed on
probation and committed under section 1(3) or (4)
of chapter IX to an institution or agency
described in the youth rehabilitation services
act, 1974 PA 150, MCL 803.301 to 803.309.
[Emphasis added.]
The sentence at issue in MCL 771.4 is clearly
permissive, not mandatory. It states that “if” probation is
revoked, the court “may” sentence the defendant as if
probation had never been granted. While the sentencing
court may sentence the probationer in the same manner and
to the same penalty, nothing in the statute requires it to
do so. In fact, the statute places an affirmative
obligation on the trial court to take only two actions—to
provide the probationer with a written copy of the charges
constituting the probation violation and to conduct a
probation revocation hearing.
7
Thus, the court may continue, extend, or revoke
probation. In the event that the court revokes a
defendant’s probation, it may sentence the defendant “in
the same manner and to the same penalty as the court might
have done if the probation order had never been made.” A
judge, however, is not required to sentence the defendant
“in the same manner.”6
Further, the Legislature did not alter our
jurisprudence on probation in the statutory codification of
sentencing guidelines.7 That is, a probation violation does
“not constitute a separate felony . . . .” Id. at 482.
Rather, “revocation of probation simply clears the way for
a resentencing on the original offense.”8 Defendant here is
thus being sentenced on the original offense—possession of
a Molotov cocktail. Without a mandate to impose a sentence
6
MCL 771.7(1), which deals with revocation of
probation for a juvenile following certain convictions,
specifically requires a trial court to “order the juvenile
committed to the department of corrections for a term of
years that does not exceed the penalty that could have been
imposed for the offense for which the juvenile was
originally convicted and placed on probation.” (Emphasis
added.) The Legislature could have incorporated similar
language in MCL 771.4 if it intended to preclude the trial
court from sentencing adult probationers to a term of years
that exceeds the penalty that could have originally been
imposed, but it did not do so.
7
People v Kaczmarek, 464 Mich 478, 482; 628 NW2d 484
(2001).
8
Id. at 483.
8
on the probationer in the same manner and to the same
penalty that could have been imposed if the probation order
had never been made, it is perfectly acceptable to consider
postprobation factors in determining whether substantial
and compelling reasons exist to warrant an upward departure
from the legislative sentencing guidelines.9
Of course, not every probation violation and
revocation warrants an upward departure. A trial court has
broad latitude in deciding whether to revoke probation. It
has less latitude in imposing a sentence in excess of the
guidelines. The sentencing court must always follow the
requirements set forth in MCL 769.34, as interpreted in
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).
MCL 769.34(3) permits a court to “depart from the
appropriate sentence range established under the sentencing
guidelines . . . if the court has a substantial and
compelling reason for that departure and states on the
record the reasons for departure.” Babcock defines a
“substantial and compelling” reason as requiring an
9
We recognize that in Kaczmarek, supra at 483, we
noted that “‘[i]f a judge finds that a probationer violated
his probation by committing an offense, the probationer is
neither burdened with a new conviction nor exposed to
punishment other than that to which he was already exposed
. . . .’” (Citation omitted.) The issue in Kaczmarek,
however, was whether a probation violation is a “crime”; it
was not, as it is in this case, how a defendant should be
sentenced after violating probation.
9
objective and verifiable reason that “keenly” or
"irresistibly" grabs the court’s attention and is of
"considerable worth." Moreover, Babcock requires that the
“substantial and compelling” reasons articulated by the
trial court justify that particular departure. The Court
of Appeals held that the trial court’s reasons for
departing from the sentencing guidelines were not
substantial and compelling because they were already
considered when scoring the prior record variables and
offense variables.
C. Application of Babcock to defendant’s postprobation
violation sentence.
Although the trial court considered several reasons
for its upward departure, it did not sufficiently
articulate its reasons on the record, because it believed
that Babcock did not apply to sentences imposed after
revocation of probation. Some of the trial court’s reasons
were already considered in scoring the prior record
variables and offense variables.10 Some of the trial
10
The trial court referred to defendant’s prior
criminal history and recidivist history as factors to
support defendant’s sentence. These factors, however, were
included in the scoring of the prior record variables and
offense variables and, thus, were insufficient to support
an upward departure absent a finding by the trial court
that the factors were given inadequate weight when scored.
MCL 769.34(3)(b). The trial court did not believe the
Footnotes continued on following page.
10
court’s reasons, however, were not considered in connection
with the prior record variables and offense variables, such
as defendant’s intent to explode the Molotov cocktail in
order to harm his sister. Further, the trial court did not
consider the circumstances surrounding defendant’s
probation violation–defendant’s possession of a shotgun
while walking down the street near his sister’s home–in
scoring the variables.
The Court of Appeals erroneously implied that all of
defendant’s conduct noted by the trial court was considered
in scoring the prior record variables and offense
variables. Because of this erroneous conclusion and
because the trial court did not apply the legislative
sentencing guidelines in imposing defendant’s sentence, we
remand this case to the trial court for resentencing. Upon
resentencing, the trial court may consider whether the
conduct underlying defendant’s probation violation
constitutes a substantial and compelling reason to depart
from the legislative sentencing guidelines.
legislative sentencing guidelines applied to sentences
imposed after revocation of probation and, thus, did not
deem it necessary to state that the above factors were
given inadequate weight. To the extent that the trial
court failed to apply the guidelines when imposing
defendant’s sentence, it erred.
11
IV. CONCLUSION
The legislative sentencing guidelines apply to
sentences imposed after probation revocation. Thus,
defendant is entitled to be resentenced under the
legislative sentencing guidelines. Further, a defendant’s
conduct while on probation can be considered as a
substantial and compelling reason for departure from the
legislative sentencing guidelines. Defendant’s sentence is
thus vacated and this matter is remanded to the trial court
for further proceedings consistent with this opinion.
Maura D. Corrigan
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Robert P. Young, Jr.
Stephen J. Markman
12