Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED DECEMBER 5, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 118373
WILLIAM ORVILLE HEGWOOD,
Defendant-Appellant.
________________________________
PER CURIAM
The defendant pleaded guilty to three drug offenses. At
sentencing, the circuit court chose to ignore the legislative
sentencing guidelines that it was required to consider,
erroneously stating that the Legislature had overstepped its
role. We disagree. Therefore, we remand this case to the
circuit court for resentencing.
I
The defendant was charged with sixteen counts of
obtaining controlled substances (Soma, Tylenol # 4, and Xanax)
by fraud. MCL 333.7407(1)(c). The offense is punishable by
a maximum term of four years in prison. The information
stated an offense date of “December 1998-March 2000" for all
counts. The defendant also was notified that he faced
enhanced sentencing as a fourth-time felony offender. MCL
769.12.
In May 2000, the defendant pleaded guilty to three counts
of obtaining drugs by fraud.1 The parties agreed that he
would be sentenced as a third-time offender, so that the
maximum term was raised from four years to eight years.
The presentence report explained that the defendant was
engaged in a lucrative business. Using a variety of names,
and visiting many doctors in the Thumb and surrounding
regions, he obtained large quantities of pain pills for an
alleged back condition. He then sold the pills to drug
dealers in Oakland County. His income from this scheme may
have reached $7,000 per week. Evidence seized at the time of
his arrest left little doubt about the carefully organized
nature of this undertaking.
At the defendant’s August 2000 sentencing, the parties
discussed the offense dates. Without mentioning that the
legislative sentencing guidelines2 took effect on January 1,
1
In exchange for the plea, the prosecuting attorney
dismissed the remaining counts in this case, and dismissed an
unrelated file.
2
MCL 777.1 et seq.
2
1999,3 defense counsel and the court agreed to a December 1999
offense date.4
The legislative sentencing guidelines provided a range of
zero to twenty-five months for the minimum sentence.5 The
presentence investigator recommended a one-year term in the
county jail. Defense counsel sought a term of probation, with
a requirement that the defendant participate in drug
treatment. The prosecuting attorney urged that the defendant
be sentenced to prison. In the alternative, he suggested that
jail time be combined with a “substantial period” of
probation.
At sentencing, the circuit court discussed the background
of the case, and asserted the court’s ability to employ
3
MCL 769.34(2) provides that, with certain exceptions
not pertinent to this case, "the minimum sentence imposed by
a court of this state for a felony enumerated in [MCL 777.11
through MCL 777.19] 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."
4
At sentencing, no one suggested that the judicial
sentencing guidelines, which preceded the legislative
sentencing guidelines, were applicable to this case. See MCL
769.34(1).
5
The current guidelines apply to persons, such as the
defendant, receiving enhanced sentences. MCL 777.21(3). The
former judicial guidelines did not. Michigan Sentencing
Guidelines, Second Edition (1988), page 6.
3
"common sense" in evaluating the facts.6 Following those
6
In this regard the Court stated:
[I]t has been claimed that the representations
made in the report, and the conclusions made by the
agent that the individual before the Court is a
drug dealer are inaccurate, and untrue.
That he doesn’t make a lot of money dealing
drugs. That those are false claims, or false
accusations made by an individual whose motivation
is vindictiveness, or whatever.
But, you know I can draw my own conclusions as
a Judge. I don’t throw my common sense out the
window when I get on the bench. And I mean I pick
my pickles and I come to work.
I can use my common sense when I arrive here,
and simply I understand the facts and circumstances
that have been presented to me, that if this
individual were consuming all of these drugs that
he was obtaining by this fraudulent method, I mean
prescription of over 200 pills, he’d be dead.
So I can draw the logical conclusion, I think
he was not only supporting his own addiction, and
apparently giving therapy to other individuals on
the weekends, but he was also in the business of
making a profit, and made a profit. That’s what
makes the difference here. That is the turning
point as to the potential disposition of this case.
* * *
There is no question in my mind that you have
considerable problems, and you’re supporting the
drug trafficking in the State of Michigan by coming
to our little sleepy community where the doctors, I
suspect, are not as vigilant, or are familiar as
they are in the big city.
That’s why you want to come up here. That’s
why you want to come to our friendly little people
in this friendly little town and sweet-talk them in
prescribing the drugs that you feel will make you
high, and maybe make you feel good. That’s why
you’re going to prison.
4
remarks, the Court addressed the role of the Legislature in
enacting Michigan’s new sentencing guidelines:
I could care less what the legislature through
its rule making authority says as to the guidelines
that I could impose, or what kind of sentence I
would impose.
When the legislature and the senators take
over and start becoming judges in the State of
Michigan, they can impose the sentences.
But in the meantime we still have separate and
co-equal branches of government, wherein it’s my
position and my responsibility, my authority to fix
the sentence when someone is convicted of a felony.
And I’m an elected official, I hold this
office because the people of this county and this
state entrusted with me the power and the authority
to enforce the criminal laws of this state. You’re
a con. I believe you belong in prison.
The circuit court then sentenced the defendant to
concurrent, enhanced terms of four to eight years in prison.
After the Court of Appeals denied his delayed application
for leave to appeal,7 the defendant applied to this Court for
leave to appeal.
II
This case presents an issue concerning the proper
application of the statutory sentencing provisions, including
MCL 777.1 et seq. and 769.34. Therefore, we review this
This is not a probationable consideration.
Probation is a matter of grace, not a matter of
right.
7
Unpublished order entered December 27, 2000 (Docket No.
230843).
5
matter de novo. People v Thousand, 465 Mich 149, 156; 631
NW2d 694 (2001).
III
As the Court of Appeals explained in People v Babcock,
244 Mich App 64, 68; 624 NW2d 479 (2000), the ultimate
authority to provide for penalties for criminal offenses is
constitutionally vested in the Legislature. Const 1963, art
4, § 45.8 The authority to impose sentences and to administer
the sentencing statutes enacted by the Legislature lies with
the judiciary. See, e.g., MCL 769.1(1).9
It is, accordingly, the responsibility of a circuit judge
to impose a sentence, but only within the limits set by the
Legislature. People v Milbourn, 435 Mich 630, 651; 461 NW2d 1
(1990).10 For example, no matter how unusual the circumstances
8
The legislature may provide for indeterminate
sentences as punishment for crime and for the
detention and release of persons imprisoned or
detained under such sentences. [Const 1963, art 4,
§ 45.]
9
A judge of a court having jurisdiction may
pronounce judgment against and pass sentence upon a
person convicted of an offense in the court. The
sentence shall not exceed the sentence prescribed
by law. [MCL 769.1(1).]
10
We said in Milbourn that judicial sentencing discretion
should be exercised “within the legislatively prescribed
range.” That statement came in a discussion of the “principle
of proportionality.” 435 Mich 651. The Court of Appeals
indicated in Babcock that the principle of proportionality is
not part of the legislative guidelines, and that there will be
no appellate review of sentence length in cases in which there
6
of an offense or an offender, a judge is constrained by the
Legislature’s determination of the maximum penalty and, if
applicable, the minimum penalty. Thus, a judge cannot impose
a twenty-year maximum sentence on an especially depraved
individual convicted of unarmed robbery (a fifteen-year
offense).11 Nor can a judge impose a one-year sentence on a
previously upright citizen who has been convicted of felony
firearm (punishable with a flat two-year term for first-time
offenders).12
Sentencing guidelines in Michigan have existed through
two distinct eras. From 1983 though 1998, Michigan’s courts
employed guidelines crafted by this Court and promulgated by
administrative order.13 The effort reflected this Court’s
is a substantial and compelling reason to depart from the
recommended minimum stated in the legislative guidelines. 244
Mich App 77-78. In this regard, however, we observe that the
statute provides, “A court may depart from the appropriate
sentence range established under the [guidelines] if the court
has a substantial and compelling reason for that departure
. . . .” (Emphasis supplied.) MCL 769.34(3). In light of
such language, we do not believe that the Legislature
intended, in every case in which a minimal upward or downward
departure is justified by “substantial and compelling”
circumstances, to allow unreviewable discretion to depart as
far below or as far above the guideline range as the
sentencing court chooses. Rather, the “substantial and
compelling” circumstances articulated by the court must
justify the particular departure in a case, i.e., “that
departure.”
11
MCL 750.530.
12
MCL 750.227b(1).
13
Administrative Order Nos. 1983-3, 417 Mich cxxi; 1984
1, 418 Mich lxxx; 1985-2, 420 Mich lxii; and 1988-4, 430 Mich
7
attempt to respond to unwarranted disparities in sentencing
practices between judges.14 Thus, the very premise of the
guidelines is that judicial discretion will be restricted to
a certain degree.
This Court’s sentencing guidelines were “mandatory” only
in the sense that the sentencing court was obliged to follow
the procedure of "scoring" a case on the basis of the
circumstances of the offense and the offender, and articulate
the basis for any departure from the recommended sentence
range yielded by this scoring. However, because the
recommended ranges found in the judicial guidelines were not
the product of legislative action, a sentencing judge was not
necessarily obliged to impose a sentence within those ranges.
Milbourn at 656-657; People v Raby, 456 Mich 487, 496-497; 572
NW2d 644 (1998).
Effective January 1, 1999, the state of Michigan embarked
on a different course. By formal enactment of the
Legislature, Michigan became subject to guidelines with
sentencing ranges that do require adherence. MCL 777.1 et
seq.
ci. See also Administrative Order Nos. 1998-2, 459 Mich
clxxii, and 1998-4, 459 Mich clxxv.
14
McComb, An overview of the second edition of the
Michigan Sentencing Guidelines, 67 Mich B J 863 (September,
1988).
8
At the time it enacted these guidelines, the Legislature
opted for a system with many features that were easily
recognizable by courts familiar with the format previously
employed in Michigan. The transition to the new guidelines
was facilitated by this choice since Michigan’s sentencing
judges were acquainted with, and fully understood, concepts
such as prior record variables, offense variables, and
sentencing ranges.
However, the similarity between the pre-1999 judicial
guidelines and the current legislative guidelines may have
misled some courts into believing that application of the
current guidelines is governed by previous principles. That
may have been the court's impression in the present case. Yet
it is apparent that the Legislature has provided new ground
rules. As one example, a decision such as Raby, holding that
a scoring error cannot form the basis of appellate relief, 456
Mich 496, now must give way to the requirement of MCL
769.34(10), which expressly permits sentence appeals on that
basis.
Because the new guidelines are the product of legislative
enactment, a judge's discretion to depart from the range
stated in the legislative guidelines is limited to those
circumstances in which such a departure is allowed by the
Legislature. The present language of MCL 769.34(3) states:
A court may depart from the appropriate
sentence range established under the sentencing
9
guidelines set forth in chapter XVII if the court
has a substantial and compelling reason for that
departure and states on the record the reasons for
departure.
By comparison, the more open-ended “departure policy” of the
judicial guidelines stated:
Whenever the judge determines that a minimum
sentence outside the recommended minimum range
should be imposed, the judge may do so.[15]
In the present case, the circuit court stated several
reasons for the sentence it imposed. The court characterized
the defendant as “a professional criminal” and described his
conduct as “inexcusable.” At no point, however, did the court
appear to recognize that it was permitted to depart from the
range prescribed by the Legislature only “if the court has a
substantial and compelling reason for that departure and
states on the record the reason for departure.”16 MCL
769.34(3). Instead, the court opined, "When the legislature
and the senators take over and start becoming judges in the
State of Michigan, they can impose the sentences." These
remarks demonstrate the court's misunderstanding in this case
of the respective roles of Michigan's separate branches of
government. Contrary to the circuit court’s view, the
15
Michigan Sentencing Guidelines, Second Edition (1988),
page 7.
16
In MCL 769.34(3), the Legislature states a rule that
makes no apparent distinctions between "upward departures"
that increase the sentence beyond the length stated in the
guidelines and "downward departures" that decrease the
sentence below the length stated in the guidelines.
10
Legislature may impose restrictions on a judge’s exercise of
discretion in imposing sentence.
For these reasons, we vacate the sentence in this case,
and remand it to the circuit court for resentencing consistent
with the law.17 MCR 7.302(F)(1).
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
17
The defendant asks that the resentencing occur before
a different judge. In this instance however, the court’s
error appears to be a function of its incorrect understanding
of the new sentencing structure that now exists in Michigan,
and not to any prejudices or improper attitudes regarding this
particular defendant. Therefore, we see no reason to assign
a different judge to conduct the sentencing. See People v
Evans, 156 Mich App 68, 71-72; 401 NW2d 312 (1986), and
following cases such as People v Pillar, 233 Mich App 267,
270-271; 590 NW2d 622 (1998).
11