Order Michigan Supreme Court
Lansing, Michigan
April 7, 2017 Stephen J. Markman,
Chief Justice
154680 Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano
Plaintiff-Appellee, Richard H. Bernstein
Joan L. Larsen,
v SC: 154680 Justices
COA: 334003
Allegan CC: 15-019249-FC
KEVIN SCOTT VANRHEE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 8, 2016
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, C.J. (concurring)
For the reasons set forth in my concurring statement in People v Keefe, 498 Mich
962 (2015), I believe the trial court erred by accepting a plea agreement between
defendant and the prosecutor that purported to allow the court to impose a minimum
sentence below the 25-year mandatory minimum sentence for a first-degree criminal
sexual conduct conviction “committed by an individual 17 years of age or older against
an individual less than 13 years of age . . . .” MCL 750.520b(2)(b). I continue to believe
that a “plea bargain cannot be allowed to supersede the Legislature’s determination that a
particular criminal offense is punishable by a mandatory minimum sentence.” Keefe, 498
Mich at 965. Because MCL 750.520b(2)(b) provides for a mandatory minimum sentence
of 25 years for the crime to which defendant pleaded guilty, the trial court did not possess
the discretion to impose a minimum sentence less than 25 years, and the trial court erred
by concluding that the parties’ plea agreement provided it that discretion. See
MCL 769.34(2)(a) (“If a statute mandates a minimum sentence for an individual
sentenced to the jurisdiction of the department of corrections, the court shall impose
sentence in accordance with that statute.”) (emphasis added). However, since the trial
court, albeit in an exercise of judicial discretion, decided that there were “substantial and
compelling” reasons to depart upwardly from the guidelines to sentence defendant to a
25-year minimum sentence, defendant ultimately received the sentence required by
MCL 750.520b(2)(b). Accordingly, the trial court’s error here was harmless and I concur
with the Court’s order denying leave to appeal.
I, Larry S. Royster, 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.
April 7, 2017
p0404
Clerk