Michigan Supreme Court Strikes Down And Severs Sentencing Guidelines As Unconstitutional In Part

On July 29, 2015, the Michigan Supreme Court struck down in part and severed in part the Michigan Sentencing Guidelines as unconstitutional because the scoring of the guidelines requires judicial fact-finding outside of a defendant's admissions at a plea hearing and outside of a jury's findings of fact at trial.

"Stated differently, to the extent that the floor of the guidelines range is increased by scoring offense variables (OVs) using facts that the court found by a preponderance of the evidence, rather than facts admitted by the defendant or necessarily found by the jury, the procedure violates the Sixth Amendment."

In People v Lockridge, Docket No. 149073, the Michigan Supreme Court addressed the issue of whether it is constitutional in a criminal case for a trial court judge to find facts outside of a plea hearing or a trial to increase a defendant's minimum sentence.

From the opinion's syllabus:

Rahim Omarkhan Lockridge was convicted of involuntary manslaughter for the death of his wife, MCL 750.321, following a jury trial in the Oakland Circuit Court. His minimum sentence range calculated under the sentencing guidelines, MCL 777.1 et seq., was 43 to 86 months. The court, Nanci J. Grant, J., concluded that there were factors not accounted for in scoring the guidelines, including a probation violation, killing his wife in front of their three children, leaving the children at home with their mother dead on the floor, and prior domestic violence. Citing these as substantial and compelling reasons to depart from the minimum sentence range, MCL 769.34(3), the court sentenced defendant to a term of 8 years (96 months) to 15 years (the statutory maximum sentence). Defendant appealed, challenging both the scoring of the guidelines and the trial court’s decision to exceed the guidelines minimum sentence range. While his case was pending in the Court of Appeals, the United States Supreme Court decided Alleyne v United States, 570 US ___; 133 S Ct 2151 (2013), which extended the rule of Apprendi v New Jersey, 530 US 466 (2000), and held that a fact that increases either end of a defendant’s sentencing range must have been admitted by the defendant or found by the jury beyond a reasonable doubt. After allowing defendant to file a supplemental brief challenging the guidelines scoring on Alleyne grounds, the Court of Appeals, BECKERING, P.J., and O’CONNELL and SHAPIRO, JJ., affirmed defendant’s sentence in three separate opinions and rejected the Alleyne challenge. Judge O’CONNELL stated in the lead opinion that the panel was bound by People v Herron, 303 Mich App 392 (2013), which had rejected the same argument based on Alleyne. Judge BECKERING stated in her concurring opinion that had she not been bound by Herron, she would have held that requiring judicial fact-finding to set the guidelines mandatory minimum sentence range violated Alleyne and that the guidelines should be made advisory to cure the constitutional problem. In his concurring opinion, Judge SHAPIRO stated that he would have held that Alleyne only bars requiring judicial fact-finding to set the bottom of the minimum sentence range under the guidelines, so only the bottom of the range needed to be made advisory to cure the constitutional flaw. 304 Mich App 278 (2014). Defendant sought leave to appeal, and the Supreme Court granted his application to address the constitutional question presented by defendant’s Alleyne challenge. 496 Mich 852 (2014).

In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices KELLY, VIVIANO, and BERNSTEIN, Supreme Court held:

The Apprendi rule, as extended by Alleyne, applies to Michigan’s sentencing guidelines and renders them unconstitutional to the extent that they require judicial fact-finding beyond facts admitted by the defendant or found by the jury beyond a reasonable doubt to score offense variables that increase the floor of the guidelines minimum sentence range. To remedy the constitutional violation, MCL 769.34(2) must be severed to the extent that it makes mandatory a minimum sentence range calculated on the basis of facts not admitted by the defendant or found by the jury. It was also necessary to strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable range must articulate a substantial and compelling reason for doing so. A guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only, but a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Appellate courts must review for reasonableness any sentences that depart from the guidelines range.

1. Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted by the defendant or submitted to a jury and proved beyond a reasonable doubt and that failing to do so violated a defendant’s constitutional rights to due process, notice, and trial by jury. Following Apprendi and its progeny, all of which addressed determinate sentencing schemes, the Michigan Supreme Court held in People v Drohan, 475 Mich 140 (2006), that the rule did not apply to Michigan’s indeterminate sentencing scheme, reasoning in part that the sentencing court’s power to impose a sentence always derives from the jury’s verdict because the jury’s verdict authorizes the maximum sentence set by statute. Alleyne, however, concluded that mandatory minimum sentences were equally subject to the Apprendi rule, holding that a fact that increases either end of the sentence range produces a new penalty and constitutes an ingredient of the offense.

2. Defendant argued that because Alleyne extended the Apprendi rule from statutory maximum sentences to mandatory minimum sentences, the rule applied to Michigan’s sentencing guidelines. A scheme of mandatory minimum sentencing violates the Sixth Amendment if it constrains the discretion of the sentencing court by compelling an increase in the mandatory minimum sentence beyond that authorized by the jury’s verdict alone. Michigan’s sentencing guidelines do so to the extent that the floor of the guidelines range compels a court to impose a mandatory minimum sentence beyond that authorized by the jury’s verdict. Stated differently, to the extent that the floor of the guidelines range is increased by scoring offense variables (OVs) using facts that the court found by a preponderance of the evidence, rather than facts admitted by the defendant or necessarily found by the jury, the procedure violates the Sixth Amendment. Because Herron held to the contrary, it must be overruled.

3. Remedying the violation requires that the sentencing guidelines be advisory only. Accordingly, MCL 769.34(2) must be severed to the extent that it makes mandatory the minimum sentence range as scored on the basis of facts beyond those admitted by the defendant or found by the jury. The requirement in MCL 769.34(3) of a substantial and compelling reason to depart from that range must also be struck down. When OVs have been scored on the basis of facts not admitted by the defendant or found beyond a reasonable doubt by the jury, the sentencing court may depart from the resulting minimum sentence range without articulating substantial and compelling reasons for doing so. An appellate court must review for reasonableness a sentence that departs from the applicable range, and resentencing will be required when a sentence is determined to be unreasonable. Sentencing courts must continue to consult the applicable guidelines range, however, and take it into account when imposing a sentence. Further, sentencing courts must justify the sentence imposed in order to facilitate appellate review.

4. Because defendant did not object to the scoring of the OVs at sentencing on Apprendi/Alleyne grounds, the appropriate review in his case was for plain error affecting substantial rights. Defendant received a minimum sentence that was an upward departure that did not rely on the minimum sentence range from the improperly scored guidelines, and the sentencing court stated on the record its reasons for departure, as it was required to do. Therefore, defendant could not show prejudice from any error in scoring the OVs in violation of Alleyne. Defendant’s guidelines minimum sentence range was irrelevant to the upward departure sentence he ultimately received. Accordingly, he could not show the prejudice necessary to establish plain error and was not entitled to resentencing.

5. With respect to the cases held in abeyance for this case, for those in which (1) facts admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum number of OV points necessary for the defendant’s guidelines score to fall in the cell of the sentencing grid under which he or she was sentenced, that defendant suffered no prejudice from any error. Accordingly, no plain error occurred in those cases, and no further inquiry will be required.

6. For cases held in abeyance in which facts admitted by the defendant or found by the jury’s verdict were insufficient to assess the minimum number of OV points necessary for the defendant’s guidelines score to fall in the cell of the sentencing grid under which he or she was sentenced, an unconstitutional constraint impaired that defendant’s Sixth Amendment right. Those defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient to warrant a remand to the sentencing court for further inquiry. United States v Crosby, 397 F3d 103 (CA 2, 2005), set forth an analysis under which it was generally appropriate to remand cases on direct review for the limited purpose of permitting the sentencing court to determine whether to resentence under the new sentencing regime and, if so, to resentence. Essentially, a sentence imposed under a mistaken perception of the requirements of law will satisfy plain-error analysis if the sentence imposed under a correct understanding would have been materially different. Accordingly, cases in which the defendant’s minimum sentence was established by applying Michigan’s sentencing guidelines in violation of the Sixth Amendment should be remanded to the sentencing court for it to determine whether it would have imposed a materially different sentence but for the constitutional error and resentencing if the court so concluded.

7. Crosby remands are warranted only in cases involving sentences imposed on or before July 29, 2015, the date of the decision in this case. For defendants sentenced after this decision, traditional plain-error review will apply if the error was unpreserved. On a Crosby remand, the sentencing court should first allow the defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the circumstances existing at the time of the original sentence.

Defendant’s sentence affirmed; Michigan sentencing guidelines statutes struck down in part as unconstitutional and severed in part.