Michigan Court of Appeals Affirms Sentencing Guidelines Do Not Require Scoring For Each Conviction

On June 19th, 2014, the Michigan Court of Appeals affirmed in a criminal case the rule that a sentencing court does not commit legal error when it scores only the most serious conviction in a multiple-conviction situation.

In People v Lopez, Docket No. 314953, the Michigan Court of Appeals addressed an appeal in a criminal case where defendant argued on appeal that the sentencing court committed legal error when it failed to score defendant's less-serious felony convictions.  According to defendant, "the sentencing court erred when it sentenced him on all his felonies in accordance with the sentencing guidelines for the most serious conviction. He reasons that scoring and calculating the guidelines for the other convictions would have resulted in a lower guidelines range, which results in his imposed sentences being illegal because the court did not justify any upward departure."

The Court first recited the facts of the case.

"Following his jury trial, defendant was convicted of all five crimes charged: Count I— Armed Robbery, in violation of MCL 750.529; Count II—Assault with Intent to Rob while Armed, in violation of MCL 750.89; Count III—Possession of a Firearm During the Commission of a Felony (felony-firearm), in violation of MCL 750.227b; Count IV—Unlawful Possession of a Firearm by a Felon, in violation of MCL 750.224f; and Count V—Carrying a Concealed Weapon, in violation of MCL 750.227. The court sentenced defendant as a habitual offender, fourth offense, MCL 769.12, to concurrent terms of 35 to 55 years for Counts I, II, IV, and V, plus a consecutive term of two additional years for Count III. 

On appeal, defendant challenges the sentencing court’s failure to individually score and sentence defendant on each of his convictions . . ."

The Court's analysis of defendant's claim followed.

"Defendant argues that the sentencing court erred when it sentenced him on all his felonies in accordance with the sentencing guidelines for the most serious conviction. He reasons that scoring and calculating the guidelines for the other convictions would have resulted in a lower guidelines range, which results in his imposed sentences being illegal because the court did not justify any upward departure. We disagree . . .

Michigan’s sentencing guidelines calculations only affect a defendant’s minimum sentence, while a defendant’s maximum sentence is limited by statute. People v McCuller, 479 Mich 672, 677; 739 NW2d 563 (2007); People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006). The sentencing court must sentence a defendant to a minimum sentence within the guidelines range unless it decides to depart from the guidelines. MCL 769.34(3). If a trial court wishes to impose a minimum sentence outside the guidelines range, it must articulate substantial and compelling reasons for departing that are objective and verifiable, keenly attract the court’s attention, and are of considerable worth in deciding the terms of the sentence. Babcock, 469 Mich at 257. 

Defendant does not dispute that the court correctly scored and sentenced defendant as a III-F offender for armed robbery, which is a Class A felony, see MCL 777.16y, to incarceration for 35 to 55 years.  Rather, defendant argues that the trial court was required to sentence him on his felon-in-possession-of-a-firearm and carrying-a-concealed-weapon convictions, both of which are Class E felonies, see MCL 777.16m, using the sentencing guidelines for Class E felonies. We are bound by this Court’s decision in People v Mack, 265 Mich App 122; 695 NW2d 342 (2005), which addressed this exact issue. In Mack, we held that the trial court was not required to independently score and sentence the defendant on each of his concurrent convictions if the court properly scored and sentenced the defendant on the conviction with the highest crime classification.  Id. at 126-130. The Mack Court reasoned that, when sentencing on multiple concurrent convictions, the guidelines did not apply to those [']lesser['] crimes because MCL 771.14(2)(e) provides that presentence reports and guidelines calculations were only required [']for the highest crime class felony conviction.['] Id. at 127-128, citing MCL 771.14(2)(e). The rationale for such a legislative scheme is fairly clear because, except in possibly an extreme and tortured case, the guidelines calculations for any lesser classification offenses will be lower than the guidelines calculations for the highest class offense. Given that the sentences are to be served concurrently, the guidelines for any lesser class offenses would be subsumed by the guidelines of the higher class offense, and there would be no tangible reason or benefit in establishing guidelines ranges for these lesser classification crimes. Therefore, because the sentences for these lesser-class offenses were to be served concurrently with the highest class felony sentence, the Class E guidelines did not apply to the court’s scoring and sentencing decision on these lesser offenses, and there was no departure. 

Further, we also question, like the Mack Court did, [']whether a sentence for a conviction of the lesser class felony that is not scored under the guidelines pursuant to MCL 771.14(2)(e)(ii) and (iii) could permissibly exceed the sentence imposed on the highest crime class felony and remain proportional.['] Mack, 265 Mich App at 129. But because defendant’s sentences for his lesser class felonies did not exceed his highest crime class felonies, we need not decide on that question. See id."