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 JUNE 13, 2006

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 128161

RAYMOND A. MCCULLER,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MEMORANDUM OPINION.

Defendant was convicted of assault with intent to do great bodily harm less

than murder, MCL 750.84, following a jury trial. The properly scored

recommended minimum sentence guidelines range for defendant’s offense

provided for a term of five to 28 months’ imprisonment, thus placing defendant in

a so-called “straddle cell.”1 The trial court sentenced defendant within the

1
When a defendant is placed in a “straddle cell,” the sentencing court has
the option of imposing an intermediate sanction or a prison term. 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
(continued…)
guidelines range to two to 15 years of imprisonment. On appeal, defendant argues

that because his prior record variable (PRV) score alone placed him in a

recommended minimum guidelines range of zero to 11 months, he is entitled to an

intermediate sanction.2 Defendant contends that the trial court violated Blakely v

Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), by engaging in

judicial fact-finding to score the offense variables (OVs), thereby allegedly

increasing his maximum sentence from an intermediate sanction to a prison term.

We reject defendant’s and the dissent’s contention and affirm defendant’s

sentence.

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

435 (2000), the United States 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

(…continued)
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.
2
When the upper limit of the guidelines range is 18 months or less, the
sentencing court must impose an intermediate sanction. MCL 769.34(4)(a). An
“intermediate sanction” can mean a number of things, but excludes a prison
(continued…)

2

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

such as Michigan’s, the Blakely Court reaffirmed that a sentencing court may

engage in judicial fact-finding in order to impose a minimum term within the

statutory range. See People v Drohan, 475 Mich ___; ___ NW2d ___ (2006)

(Docket No. 127489, decided June 13, 2006). The Blakely Court explained:

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. [Blakely, supra at 309 (emphasis in original).]

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.

In Michigan, when the high end of the recommended minimum guidelines

range is 18 months or less, MCL 769.34(4)(a) requires a sentencing court, absent

(…continued)

sentence. People v Stauffer, 465 Mich 633, 635; 640 NW2d 869 (2002); MCL

769.31(b).

3

articulation of substantial and compelling reasons, to impose an intermediate

sanction, which may include a jail term of no more than 12 months:

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.]

MCL 777.21 explicitly requires the court to consider the OVs, the PRVs, and the

offense class to determine a defendant’s recommended minimum guidelines

range.3 Under our statutory scheme, a defendant has no legal right to have the

3
MCL 777.21(1) provides:
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.

(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.

4

minimum sentence calculated using only a fraction of the statutorily enumerated

factors. Thus, under MCL 769.34(4)(a), a defendant is not legally entitled to an

intermediate sanction until after the OVs have been scored and those OVs, in

conjunction with the PRVs and the offense class, indicate that the upper limit of

the defendant’s guidelines range is 18 months or less. In other words, a

defendant’s legal right to an intermediate sanction arises from properly scored

guidelines, including the scoring of the OVs. A sentencing court does not violate

Blakely and its progeny by engaging in judicial fact-finding to score the OVs to

calculate the minimum recommended sentencing guidelines range, even when the

defendant’s PRV score alone would have placed the defendant in an intermediate

sanction cell.4

In this case, properly scored guidelines placed defendant in a recommended

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

a “straddle cell,” in which the trial court was permitted to choose between

imposing an intermediate sanction or a prison term. MCL 769.34(4)(c). Thus,

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

4
Contrary to the dissent’s contention, our holding is consistent with Ring v
Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002). In Ring the Court
held that Arizona’s sentencing scheme violated the defendant’s Sixth Amendment
rights where the sentencing court increased the defendant’s statutory maximum
sentence of life imprisonment to a death sentence on the basis of a judicial finding
of aggravating factors. This case does not involve an increase of defendant’s
statutory maximum sentence on the basis of judicial findings. Instead, the trial
court merely scored defendant’s OVs before imposing a sentence within the
statutory range.

5

conviction of assault with intent to do great bodily harm less than murder as a

second-offense habitual offender, MCL 750.84; MCL 769.10. Because the

properly scored guidelines range did not entitle defendant to an intermediate

sanction, the trial court did not violate Blakely by scoring the OVs before

imposing a prison sentence within the guidelines. Accordingly, we affirm

defendant’s sentence.

In all other respects, defendant’s application for leave to appeal is denied,

because we are not persuaded that this Court should review the remaining

questions presented.

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

6

 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 provides the Court an opportunity to fully and carefully explore

the effects on Michigan’s sentencing guidelines1 of the United States Supreme

Court decision in Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d

403 (2004). It presents an important Blakely problem: whether judicial fact-

finding that increases a person’s sentence by moving it from an intermediate

sanction cell to a straddle cell violates the person’s Sixth Amendment2 right to trial

1
MCL 777.1 et seq.
2
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.]
by jury. I have concluded that it does. Hence, I would rule that Michigan’s

sentencing guidelines are unconstitutional as applied. Because a Blakely violation

occurred here, I would remand the case to the trial court so that defendant could be

resentenced.

PROCEDURAL FACTS

A jury found defendant Raymond McCuller guilty of assault with intent to

do great bodily harm less than murder. MCL 750.84. In arriving at its sentence,

the trial court followed these steps: Because defendant had previously been

convicted of a misdemeanor, the judge scored two points for the prior record

variables (PRVs). He also scored 36 points for the offense variables (OVs). He

did this by making certain findings of fact. He found that the victim had been

touched by a weapon, other than a gun or knife, and scored OV 1 at ten points.

MCL 777.31. He found that defendant had possessed a potentially lethal weapon

and scored OV 2 at one point. MCL 777.32. He found that the victim had

suffered a life threatening or permanent incapacitating injury, and scored OV 3 at

25 points. MCL 777.33.

The sentencing guidelines statutes make assault with intent to do great

bodily harm less than murder a class D offense. MCL 777.16d. In the guidelines

class D sentencing grid, a PRV level of two points and an OV level of 36 points

placed defendant in the B-IV cell. This cell provides a minimum sentence range

2

of five to 23 months. MCL 777.65.3 Because defendant had a prior conviction,

the judge increased the top number by 25 percent to 28 months. MCL

777.21(3)(a).4 The range for his minimum sentence became five to 28 months.

Accordingly, the judge sentenced defendant within this range to a minimum of

two years’ imprisonment.

After the sentencing and before defendant filed his claim of appeal, the

United States Supreme Court released its decision in Blakely. Defendant could not

have raised a Blakely issue at his sentencing. But he did raise the issue in his

3
This cell is what is often referred to as a “straddle cell.” See People v
Stauffer, 465 Mich 633, 636 n 8; 640 NW2d 869 (2002). Straddle cells are
addressed at 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.
4
MCL 777.21(3) provides, in relevant part:
If the offender is being sentenced under section 10, 11, or 12
of chapter IX, 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%.

3

appeal to the Court of Appeals. Unfortunately, that Court did not directly address

the issue. Instead, it relied on our dicta discussion of the subject contained in

People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). As a result, it

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

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, 472 Mich 881 (2005). Later, we scheduled oral argument for the purpose

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

pursuant to MCR 7.302(G)(1). We specifically ordered the parties to address the

effect of Blakely on defendant’s sentence. Unfortunately, in its opinion, the

majority fails to recognize the effects of Blakely on defendant’s sentence.

MICHIGAN’S SENTENCING SCHEME

MCL 769.8 lays out the basics of Michigan’s statutory sentencing scheme:

(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.

4

 Therefore, generally, a court’s initial attention when sentencing must be on

determining the minimum sentence. That sentence must be within the range set by

the sentencing guidelines unless substantial and compelling reasons to depart from

the range are shown. 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 defendant has habitual-

offender status, the sentencing court cannot exceed the maximum sentence

provided by statute.5

There are exceptions to the general rule that the court’s focus in sentencing

is only on the minimum sentence. With respect to certain offenses, the Legislature

has specified a determinate sentence.6 They require a specific sentence, not a

sentence that falls within a range. For instance, the offense of carrying or

possessing a firearm when committing or attempting to commit a felony (felony-

firearm) has a mandatory determinate sentence of two years. A second conviction

for felony-firearm requires a determinate five-year sentence. MCL 750.227b(1).

5
With respect to habitual offenders, MCL 769.10, MCL 769.11, and MCL
769.12 allow the maximum sentence to be increased. 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, the maximum possible sentence was 15 years. MCL
769.10(1)(a). Defendant received this maximum sentence.
6
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.

5

But, for purposes of this case, the most important exception to the general rule that

trial judges calculate a defendant’s minimum sentence involves intermediate

sanction cells.

INTERMEDIATE SANCTION CELLS

If the trial court had not entered a score for OVs 1, 2, and 3, defendant’s

OV level would have dropped to zero. This would have moved him to the B-I

cell. The B-I cell provides a sentencing range of zero to 11 months’ imprisonment

for a second-offense habitual offender. MCL 777.21(3)(a) and 777.65. Because

its upper limit is under 18 months, the B-I 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.

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 .

6

 (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.

When one reads these statutes together, it becomes apparent that

intermediate sanction cells have a highly unusual role in Michigan’s sentencing

guidelines scheme. Once a defendant’s minimum sentencing range falls within

those cells, the guidelines no longer are concerned with the person’s minimum

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

sentence to which the defendant may be sentenced. That maximum is either the

upper limit of the range of the recommended minimum sentence or 12 months in

jail, whichever is shorter. The guidelines statutes do not permit a court to sentence

7

to prison a defendant fitting within the intermediate sanction cells. 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 defendant’s maximum sentence would have been 11

months in jail if the trial judge had not affixed a score to OVs 1, 2, and 3. By

scoring the OVs after making judicial findings of fact, the judge moved defendant

out of the intermediate sanction cell into a straddle cell. By that process, the judge

sentenced defendant to a higher maximum sentence than he would have been able

to on the basis of the jury verdict and defendant’s criminal history alone. And the

judge scored the OVs after making his own findings of fact, findings not made by

the jury. It is under this setting that I address the applicability of the United States

Supreme Court’s decision in Blakely.7

THE HIGH COURT’S PRECEDENT REGARDING THE “STATUTORY MAXIMUM”

The United States Supreme Court grappled over a long period with the

judicial modification of sentences using facts found by a judge after a jury’s

verdict. These facts are known as “sentencing factors.” In McMillan v

7
This Court considered the application of Blakely to standard sentencing
guideline cases in People v Drohan, 475 Mich ___; ___ NW2d ___ (Docket No.
127489, decided June 13, 2006). My statement here should be read in tandem
with my concurring/dissenting opinion in Drohan for a fuller discussion of the
applicability of Blakely to Michigan’s sentencing guidelines statutes.

8

Pennsylvania,8 the Court addressed the constitutionality of Pennsylvania's

mandatory minimum sentencing act, 42 Pa Cons Stat 9712 (1982). 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 v

Pennsylvania, 477 US 79, 81; 106 S Ct 2411; 91 L Ed 2d 67 (1986).

The 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. And it made another important point:

there are constitutional limitations on the degree to which a state may whittle away

the factual support needed to prove a criminal offense beyond a reasonable doubt.

It also 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,
supra at 87-88.]

The Supreme Court returned to the discussion of sentencing factors in

Jones v United States, 526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999). In

that case, the Court addressed whether the federal carjacking statute9 constituted

8
477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986).
9
18 USC 2119. At the time, the statute provided:
(continued…)

9

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 under constitutional law for requiring that all the “elements” be

proven to a jury beyond a reasonable doubt. 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 § 2119(2) (increasing the authorized penalty by two thirds, to
25 years), then death would presumably be nothing more 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.]

(…continued)
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.

10

The Supreme Court found the diminution of the jury’s role of great concern. 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 this issue of statutory

construction must be resolved in favor of avoiding such Sixth Amendment

questions. Id. at 251.

The next step in the Supreme Court’s discussion of sentencing factors came

in Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000).

Apprendi centered on a New Jersey hate-crime law. The statute allowed for an

increase in the defendant’s maximum sentence from ten to 20 years if the trial

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 judge could make the finding based on a preponderance of the

evidence. Apprendi, 530 US 468. In its analysis, the Supreme Court specifically

built on its holding in Jones. It concluded that the Fourteenth Amendment of the

United States Constitution commanded the same answer for state statutes. Id. at

476.

The Apprendi Court found that a legislature could not change the elements

of a crime simply by labeling some of them “sentencing factors.” It found that

such attempts run afoul of due process and violate a defendant’s Sixth Amendment

protections. Instead, the Court stated, a sentencing court could exercise its judicial

11

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. To that end, procedural practices must adhere to the

basic principles undergirding the requirement that the prosecution prove beyond a

reasonable doubt all facts necessary to constitute the statutory offense. 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.]

The Supreme Court went on to make a concise reiteration of its holding. In

doing so, it used the phrase “statutory maximum”:

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 252-253 (Stevens, J., concurring).]

12

 The Supreme Court continued its discussion of the “statutory maximum” in

Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002). That case

dealt with the Sixth Amendment implications of Arizona’s first-degree murder

statute. The statute stated that first-degree murder was punishable by death or life

in prison. It then referred to another statute that directed the trial judge to conduct

a separate sentencing hearing. The purpose of the hearing was to determine the

existence of specific circumstances (sentencing factors) in order to decide whether

a death sentence was appropriate. Id. at 592-593. The Supreme Court, relying on

its previous decisions in Jones and Apprendi, found that Arizona’s system violated

the defendant’s Sixth Amendment rights.

The Court reiterated:

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
602, quoting Apprendi, 530 US 482-483, 494 (citations omitted;
emphasis in Apprendi).]

Notwithstanding that the statute allowed for either life in prison or death, the

Supreme Court found that the “statutory maximum” was life imprisonment. This

is because the death sentence could be imposed only after additional factual

findings by a judge. The Supreme Court found nothing to distinguish this case

from Apprendi. Ring, 536 US 604-606. It reached this conclusion because

Arizona's enumerated aggravating factors were the functional equivalent of an

13

element of a greater offense. Therefore, the Sixth Amendment required that a jury

find these factors beyond a reasonable doubt. Id. at 609.

It was in Blakely that the Supreme Court fully explained the meaning of the

phrase “statutory maximum.” In that case, the defendant had pleaded guilty in the

state of Washington of second-degree kidnapping involving domestic violence and

the use of a firearm. The standard sentencing range for the offense was 49 to 53

months in prison. Blakely, 542 US 298-299. But, under Washington’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.

Aside from the elements of the crime, the defendant in Blakely admitted to

no other relevant facts. Id. However, after hearing the complainant’s version of

the kidnapping, the judge imposed an exceptional sentence of 90 months.10 He

based this departure on his finding that there had been deliberate cruelty, a

statutorily enumerated ground for departure in domestic violence cases. Id. at 300.

Washington argued that its system did not present a Sixth Amendment problem

because the highest possible sentence was a maximum of ten years’ imprisonment.

Therefore, in no instance could an exceptional sentence exceed ten years. Id. at

303. The Supreme Court rejected this argument.

10
Washington’s sentencing scheme provided for determinate sentences.
Blakely, 542 US 308.

14

 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).]

Therefore, for Sixth Amendment purposes, the maximum sentence was not ten

years. Instead, it was 53 months, the maximum sentence that could have been

imposed solely on the basis of facts defendant admitted when pleading guilty. Id.

at 304. The Supreme Court concluded that this determination alone properly

effectuated the people’s control of the judiciary that the Founding Fathers

intended:

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).]

15

 The final phase in the Supreme Court’s discussion of judicial modification

of statutory maximum sentences through “sentencing factors” came 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 Blakely to the federal sentencing

guidelines. Booker11 was charged with possession with intent to distribute at least

50 grams of cocaine base. The statute for this crime provided a maximum

possible sentence of life in prison. But on the basis of Booker’s criminal history

and the quantity of cocaine base that the jury found was involved, the guidelines

required a maximum sentence of 262 months’ imprisonment. Instead of imposing

that sentence on Booker, the trial court held a hearing during which it made

additional findings of fact. It found that Booker had possessed an additional 566

grams of cocaine base and that he had obstructed justice. Accordingly, using a

preponderance of the evidence test, the court increased the 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 statutes indistinguishable from the Washington

guidelines statutes 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

11
Booker involved consolidated cases that included another defendant,
Fanfan. For the sake of avoiding repetition, I will discuss defendant Booker only.

16

 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 305 (citation omitted).]

It again found irrelevant the fact that there existed an absolute maximum

sentence set by statute. The maximum sentence could not be applied in every

case. Instead, in cases like Booker’s, the jury’s verdict supports nothing other than

a lower maximum sentence. Booker, 543 US 234-235. In conclusion, the

Supreme Court reiterated its holding from Apprendi:

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 make the

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

BLAKELY AND MICHIGAN’S GENERAL SENTENCING SCHEME

As noted before, Michigan’s sentencing guidelines generally establish the

minimum sentence. Usually, judicial fact-finding does not alter a defendant’s

maximum sentence. Instead, in the typical case, the maximum sentence for

Blakely purposes is the sentence set by the statute. The defendant’s criminal

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

17

sentence the defendant to the maximum sentence allowed by law, without recourse

to judicial fact-finding. And the defendant’s Sixth Amendment rights are not

implicated because all the facts necessary to support the maximum sentence have

been proven to a jury beyond a reasonable doubt.

Such situations do not threaten the basic principles undergirding our jury-

driven legal system. This is because the 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 486, quoting McMillan, 447 US 88.

The typical application of the Michigan sentencing guidelines more readily

relates to McMillan. Scoring the OVs merely shifts a defendant’s sentence within

the maximum range. It does not move the defendant from one maximum sentence

to a higher one. 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 prescribed by law.

Because there is no notice problem in the application of the sentencing guidelines

in cases not involving intermediate sanction cells, there is no Sixth Amendment

issue either. All of this changes, however, when an intermediate sanction cell is

involved.

18

 BLAKELY AND MICHIGAN’S INTERMEDIATE SANCTION CELLS

When a defendant is entitled to a sentence within an intermediate sanction

cell, MCL 769.34(4)(a) sets the maximum sentence. That sentence is either the

upper limit of the recommended minimum sentence range or 12 months in jail,

whichever is shorter. Under the guidelines, the court must impose this maximum

sentence, unless it can state substantial and compelling reasons to depart upward.

Therefore, the process is no longer concerned with the defendant’s minimum

sentence. This alteration in focus changes the “statutory maximum” discussed in

Apprendi and Blakely.

The new maximum sentence set under MCL 769.34(4)(a) is the “statutory

maximum.” This is true because it is the highest sentence to which the court can

sentence a defendant solely on the basis of the defendant’s criminal record,

admissions, and the jury’s verdict. Booker, 543 US 244; Blakely, 542 US 301;

Apprendi, 530 US 490; Jones, 526 US 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 484. Any judicial fact-finding that shifts the defendant’s sentence above the

statutory maximum is unconstitutional and violates Jones and its progeny. By

scoring the OVs or stating substantial and compelling reasons to depart from the

sentencing guidelines range, a court engages in such judicial fact-finding.

19

 The question then becomes: Who is entitled to an intermediate sanction

cell? Again, the central holding of the pertinent cases is that

[a]ny 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.
[Booker, 543 US 244.]

In other words, a defendant is entitled to a sentence based solely on (1) the

defendant’s prior convictions and (2) any facts he or she admitted or any facts that

were specifically found by the jury. Id.

To determine an appropriate sentence in Michigan, the sentencing court

should score only the PRVs. This is true because these factors are based on the

defendant’s prior convictions and relations to the criminal justice system. To

determine whether a defendant’s sentence falls within an intermediate sanction

cell, the sentencing court should not score the OVs. This is because they are based

on factual determinations that are made by the trial court by a preponderance of

the evidence. Such judicial fact-finding was explicitly rejected in the Blakely line

of cases. Id. at 234-235. The only time the sentencing court should score an OV

is when the underlying fact was admitted by the defendant or found by the jury

beyond a reasonable doubt. But this occurs only in rare cases.

Therefore, it is safe to conclude that a Michigan defendant is entitled to an

intermediate sanction cell 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 a sentence within an

20

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

scheme and is subject to the 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.

The instant case is demonstrative of the distinction. Defendant did not

admit any fact necessary to score OVs 1, 2, and 3. And the jury made no specific

findings of fact regarding these OVs. Thus, defendant’s sentence should be based

solely on his PRV level. Defendant’s PRV level was two points, which placed

him in the B-I cell. The B-I cell provides a 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 sentence. As discussed above, this means a

maximum sentence of 11 months in jail.

But the trial court made judicial findings of fact using a preponderance of

the evidence to score OVs 1, 2, and 3. These judicial findings increased

defendant’s maximum sentence because they moved defendant into a straddle cell.

At that point, he was no longer entitled to an intermediate sanction sentence.

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

they violated defendant’s Sixth Amendment rights. Defendant suffered a greater

stigma through an increased sentence than the stigma he would have been

subjected to had his sentence been based solely on his PRV level. This increased

stigma undermines the basic concepts of the right to trial by jury and defeats the

21

intent of the Founding Fathers to ensure a publicly controlled judiciary. Apprendi,

530 US 483-484.

Just as in the Ring case, scoring the OVs here was the functional equivalent

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

convicted only of assault with intent to do great bodily harm less than murder, he

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

(1) in which the victim was touched by a weapon,12 (2) in which defendant

possessed a potentially lethal weapon,13 and (3) in which the victim suffered life

threatening or permanent incapacitating injury.14 Just as in Ring, the Sixth

Amendment requires that the jury find beyond a reasonable doubt the facts that

enhanced defendant’s guilt. Ring, 536 US 609.

Some may argue that the statutory maximum was the maximum sentence

allowed by law and not the intermediate sanction sentence of 11 months. The

argument is that all defendants in Michigan should assume that they will receive

the statutory maximum because they do not know how the judge will score the

OVs at sentencing. This reasoning is inaccurate and is directly contradicted by the

Blakely line of cases.

12
This was the finding under OV 1. MCL 777.31(1)(d).

13
This was the finding under OV 2. MCL 777.32(1)(e).

14
This was the finding under OV 3. MCL 777.33(1)(c).

22

 In fact, both Blakely and Booker make clear that it is not relevant that the

possibility exists for the judge to depart from the statutory maximum sentence in

some circumstances. It is not relevant that the maximum sentence could increase

with additional fact-finding by the judge. Booker, 543 US 234-235; Blakely, 542

US 304. 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
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).
[Id.]

In the instant case, had the judge sentenced defendant to a maximum of 15

years without scoring the OVs or making additional fact-finding, he would have

committed error requiring reversal. The same rule of law applies as in Ring,

Blakely, and Booker. Despite the fact that the statute permits a different maximum

23

in some situations, sentencing a defendant to that maximum on the basis of

judicial fact-finding constitutes a violation of the Sixth Amendment.

Some also argue that the Blakely line of cases does not affect Michigan’s

sentencing guidelines because Michigan has an indeterminate sentencing scheme.

I would agree with this assessment in cases in which the defendant’s PRV level

places the defendant somewhere other than in an intermediate sanction cell. But I

disagree with respect to cases in which the indeterminate sentencing scheme sets

two possible maximums,15 which is exactly what occurs in cases involving

intermediate sanction cells. In these cases, the indeterminate sentencing scheme

resembles the determinate sentencing schemes discussed in the Blakely line of

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

15
Here, the two possible maximums were 15 years (set by MCL 750.84 and
MCL 769.10) and 11 months (set by the guidelines).

24

 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. [Id. at 308-309 (emphasis in original; citations omitted).]

Once this reasoning is applied to the instant case, the problem posed by

Michigan’s sentencing scheme becomes apparent. 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, there

would be no problem with judicial fact-finding that results in a sentence in the

range of zero to 15 years. But that is not the case. Some second-offense habitual

offenders convicted of assault with intent to do great bodily harm less than murder

face a maximum sentence of 11 months. They are offenders whose criminal

records do not support the scoring of the OVs.16 These offenders are entitled to a

sentence falling within an intermediate sanction cell. Id.

Given that there are two possible maximum sentences for the offense in

question, a defendant is entitled to whichever is supported by the conviction and

his or her admissions and criminal record alone. “[A]nd by reason of the Sixth

Amendment the [additional] facts bearing upon that entitlement must be found by

16
These would be the equivalent of Blakely’s “burglar who enters a home
unarmed.” Blakely, 542 US 309.

25

a jury.” Id. at 309. Therefore, if certain other facts are necessary to move the

defendant to the higher maximum sentence, they must be proven to the jury

beyond a reasonable doubt.17

In this case, the judge moved defendant from the 11-month maximum to

the 15-year maximum. He did this using facts that he determined to be true by a

mere preponderance of the evidence. The prosecution was not put to its proofs

regarding these facts, and defendant faced an increased sentence without the full

opportunity to challenge the facts the prosecution claims support it. This is

exactly the problem recognized by Blakely. And it constitutes a Sixth Amendment

violation.

The argument has also been made that no defendant is entitled to a sentence

in Michigan until after the OVs have been scored. See MCL 777.21. It is this

argument on which the majority bases its decision. This argument does not

survive even casual inspection, and the Blakely line of cases clearly contradicts it.

Essentially, it boils down to a claim that judicial fact-finding should occur to

determine if judicial fact-finding should occur. It is a claim that the court should

be able to make some judicial fact-finding. If, as a consequence, the guidelines

17
The majority ignores this unusual nature of intermediate sanction cells as
compared to a traditional indeterminate scheme. And it states that Michigan’s
sentencing scheme is indeterminate, period. But, because intermediate sanction
cells set maximum sentences, Michigan’s sentencing scheme in these cases is
distinct from the traditional indeterminate scheme and, for Sixth Amendment
purposes, is properly viewed as determinate.

26

place a defendant in an intermediate sanction cell, no more judicial fact-finding

would be appropriate. But, the claim continues, if initially the court’s fact-finding

moves the sentence beyond an intermediate sanction cell, more judicial fact-

finding would be acceptable.

I find this argument intellectually disingenuous and circular. Nowhere in

Blakely or in any of the other related cases does the Supreme Court indicate that

any initial judicial fact-finding is appropriate. In fact, all the cases specifically

contradict this contention:

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.
[Booker, 543 US 244.]

Any fact means any fact. Certain facts are not excepted, and no exception is made

for an initial round of fact-finding. The holding of the Blakely line of cases is

simple: Any facts, aside from past convictions, that increase a defendant’s

maximum sentence must be either admitted by the defendant or proven to a jury

beyond a reasonable doubt.

The majority ignores this central tenet of the Blakely line of cases. It is

irrelevant that a defendant would or could receive a higher sentence under the

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

maximum sentence authorized by the defendant’s past convictions and the facts

admitted or established during a guilty plea or by a jury verdict. Id. A defendant’s

27

sentence must not be based on facts later found by a judge using a preponderance

of the evidence standard.

MCL 777.21 does not change this central tenet. The statute is similar to the

statute in Ring. In Ring, the statute directed the judge to conduct a separate

sentencing hearing to determine the existence of specified circumstances in order

to decide whether to impose death or life imprisonment. Ring, 536 US 592.

The fact that it is possible to impose a higher sentence under the sentencing

scheme is not relevant. A defendant is entitled to a sentence based solely on the

jury 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.]

Defendant in this case was exposed to a greater punishment than was authorized

by the jury’s verdict. This was a violation of the Sixth Amendment. Id. at 609.

THE CURE FOR THE CONSTITUTIONAL VIOLATION

The fact that intermediate sanction cells exist does not necessarily render

Michigan’s sentencing guidelines statutes unconstitutional. There are legally valid

28

applications of this portion of the guidelines. Also, legally valid applications can

be made of the nonintermediate sanction cells. For instance, a defendant’s PRV

level alone could place the defendant in a straddle cell or a cell requiring a prison

sentence without further judicial fact-finding.

A problem of constitutional magnitude arises, however, when someone is

moved out of an intermediate sanction cell into a straddle cell or beyond by

judicial fact-finding. In such situations, the application of the guidelines violates

the defendant’s Sixth Amendment right to have all the facts that increase the

sentence proven to a jury beyond a reasonable doubt. The only exceptions are the

defendant’s criminal record and facts admitted by the defendant.

The question becomes: How can this constitutional problem be eliminated?

The Court could declare the offending portions of the guidelines unconstitutional

and simply sever them from the statutes. I believe this is not feasible. A

significant portion of the guidelines involves intermediate sanction cells. The

sentences for all class G and H felonies fall in an intermediate sanction cell

without consideration of the OVs. MCL 777.68 and MCL 777.69. All class F

felonies fall in an intermediate sanction cell if the defendant has fewer than 50

PRV points. MCL 777.67. All class E felonies fall in an intermediate sanction

cell if the defendant has fewer than 25 PRV points. MCL 777.66. All class D

felonies fall in an intermediate sanction cell if the defendant has fewer than 50

PRV points. MCL 777.65. All class C felonies fall in an intermediate sanction

cell if the defendant has fewer than ten PRV points. MCL 777.64. The sentences

29

of class B felons having zero PRV points fall in an intermediate sanction cell.

MCL 777.63. And the sentence of no class M2 or A felon could fall in an

intermediate sanction cell. MCL 777.61 and 777.62.

Given these facts, the magnitude of the problem becomes apparent. Nearly

every felony could present a Blakely problem if the defendant has a certain

number of PRV points. The comprehensive nature of the problem raises a serious

question whether severance is possible. The Legislature encourages saving

statutes and acts through severance:

In the construction of the statutes of this state the following
rules shall be observed, unless such construction would be
inconsistent with the manifest intent of the legislature, that is to say:

If any portion of an act or the application thereof to any
person or circumstances shall be found to be invalid by a court, such
invalidity shall not affect the remaining portions or applications of
the act which can be given effect without the invalid portion or
application, provided such remaining portions are not determined by
the court to be inoperable, and to this end acts are declared to be
severable. [MCL 8.5.]

To determine whether severance is appropriate, this Court must consider

whether the portion of the act remaining after the unconstitutional portion has been

severed is capable of functioning alone. Blank v Dep’t of Corrections, 462 Mich

103, 123; 611 NW2d 530 (2000), quoting Maki v East Tawas, 385 Mich 151, 159;

188 NW2d 593 (1971). The Court must also focus on the intent of the Legislature;

if the Legislature would not have enacted the act without the severed provisions,

the Court cannot sever them. People v McMurchy, 249 Mich 147, 157-159; 228

30

NW 723 (1930), quoting 1 Cooley, Constitutional Limitations (8th ed), pp 359-

363.

I believe that the portions of the guidelines that are unconstitutional are so

entangled with the others that they cannot be removed without adversely affecting

the guidelines as a whole. The judicial fact-finding required by the sentencing

guidelines would be inappropriate with respect to most crimes. An attempt to save

the rest of the guidelines would engender confusion in the courts. Defendants,

lawyers, and judges would be left guessing at the start of trial which sentencing

method will be appropriate and whether judicial fact-finding will later be required

or permitted. The prosecution will not be certain about all the facts it will have to

prove to the jury. These inconsistencies and uncertainties mitigate against

severance. Instead, the act as a whole would have to be found invalid. Blank, 462

Mich 123.

In addition, the judge would find it difficult to identify the offending

sections of the sentencing guidelines statutes. For one defendant convicted of a

crime, it would be appropriate to score the OVs. For another convicted of the

same crime, it would not be permissible to score the OVs because the defendant’s

PRV level would place that defendant’s sentence in an intermediate sanction cell.

The same statutory scheme could apply differently depending on the situation.

This is a classic example of entanglement, and it signals that severance is simply

not possible. Id.

31

 It is also unlikely that the Legislature would have passed only part of the

sentencing guidelines. It intended the guidelines to be comprehensive. People v

Garza, 469 Mich 431, 434-435; 670 NW2d 662 (2003). Some of its specific goals

were to eliminate sentencing disparity and to ensure that certain crimes that do not

warrant prison time result in appropriate sentences. Id. at 435. Severing the

portions pertaining to intermediate sanction cells would work against both of these

goals. Most importantly, it would directly thwart the Legislature’s intent to enact

a comprehensive system of sentencing. Everything considered, severance is not

appropriate. McMurchy, 249 Mich 157-159.

Given that conclusion, this Court must find that Michigan’s sentencing

guidelines statutes are no longer valid as applied. The question then becomes how

sentencing should occur in the future. There have been three options presented to

this Court. First, the Court could find the guidelines merely advisory. This is the

solution reached by the United States Supreme Court in Booker. Booker, 543 US

227. But I believe it is inappropriate in this case.

From 1983 to 1998, Michigan’s sentencing guidelines were not furnished

by the Legislature but by the Court, through administrative orders. They were not

mandatory. Judges rendering sentences were obliged to use the guidelines to

calculate a sentencing range in each case. But they were not required to sentence

convicted parties within those guidelines ranges. People v Hegwood, 465 Mich

432, 438; 636 NW2d 127 (2001). The Legislature’s guidelines replaced the

merely advisory judicial guidelines and mandated that judges sentence within the

32

statutory guidelines with few exceptions. To render the statutory guidelines

advisory would be directly contrary to the Legislature’s intent.

The second possible solution is to strike down the guidelines as

unconstitutional. This would allow the judges wide discretion in sentencing

defendants. The only limitation would be the absolute maximum sentence

provided by law. Although this is a better option than the first, it too has serious

flaws. Primarily, allowing such discretion would defeat the intent of the

Legislature to eliminate sentence disparity. Garza, 469 Mich 435. More than

likely, this solution would ensure sentence disparity.

I believe a third option is the most appropriate and the most consistent with

the Legislature’s intent regarding sentencing. The third option is to find the

sentencing guidelines statutes unconstitutional as applied, but specify how they

could operate so as to pass constitutional scrutiny. This would require replacing

judicial fact-finding with jury determinations. After a guilty verdict, the

prosecution would be required to list the specific OVs that it wished the jury to

score. Then, in a bifurcated hearing, the prosecutor would present to the jury

evidence regarding each variable. The defense could respond, as in a trial. The

jury would then deliberate and make specific findings regarding the OVs. It

would indicate which the prosecution proved beyond a reasonable doubt. Because

the jury would make the determinations, there would be no constitutional

impediment to increasing a defendant’s sentence from an intermediate sanction

cell to a straddle cell sentence.

33

 This solution would ensure that the Legislature’s intent in enacting the

guidelines would be fulfilled. Sentence disparity would be diminished. At the

same time, defendants would be afforded full Sixth Amendment protection

because the prosecution would be put to its proofs. Given the benefits of this

solution, I find it to be the best option available. Therefore, I would require all

future sentencing to employ the bifurcated jury procedure where appropriate.

CONCLUSION

Today, unfortunately, the majority fails to recognize the effects on

Michigan’s sentencing guidelines statutes of the United States Supreme Court

rulings in the Blakely line of cases. This case illustrates that a grave constitutional

problem arises in this state when Blakely is correctly applied. Specifically, the

judicial fact-finding that moved defendant McCuller’s sentence from an

intermediate sanction cell to a straddle cell violated McCuller’s Sixth Amendment

right to trial by jury. Given that a large portion of Michigan’s sentencing

guidelines involves intermediate sanction cells that intertwine with the rest of the

guidelines, the unconstitutional sections cannot be severed. Hence, 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 and necessary for scoring the OVs to a jury for

resolution beyond a reasonable doubt. These changes would effectuate the

34

Legislature’s intent in passing the sentencing guidelines statutes and would best

protect defendants’ constitutional rights in this state.

The case should be remanded to the trial court for resentencing.

Marilyn Kelly

35

 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 rationale and proposed result of Justice Kelly’s dissent

concluding that in this intermediate sanction cell case, Michigan’s sentencing

guidelines are unconstitutional as applied. But I disagree with Justice Kelly with

respect to the proposed cure for the constitutional violation. In my view, a

bifurcated system in these types of cases would be overly taxing on the judiciary

and the jury. Instead, I believe the sounder approach would be for the prosecution

to charge the aggravating factors in the information and request a special verdict

from the jury if the prosecution wants offense variable points assessed in these

types of cases. And, if the prosecution fails to abide by this process, the trial court

must give the intermediate sanction. Accordingly, this cure would be less

burdensome on the criminal justice system, as well as ensure that a defendant’s

constitutional rights are protected.

Michael F. Cavanagh