June 13, 2006
Michigan Supreme Court dodges application of Blakely
It has been a while since a state supreme court has provides any Blakely fireworks. But a helpful reader tonight sent me copies of two lengthy opinions released today from the Michigan Supreme Court in which the court dodges the application of Blakely in the state up north. Here are the basics:
People v. Drohan, No. 127489 (Mich. June 13, 2006) (available for download below):
We granted leave to appeal to consider whether Michigan's indeterminate sentencing scheme, which allows a trial court to set a defendant's minimum sentence on the basis of factors determined by a preponderance of the evidence, violates the Sixth Amendment of the United States Constitution. Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, and one count of fourth-degree criminal sexual conduct. Defendant also pleaded guilty to a charge of being a third-offense habitual offender. The trial court sentenced defendant to a term of 127 to 360 months of incarceration on the third-degree criminal sexual conduct conviction. This range was calculated by the trial court's assignment of points to defendant's "offense variable" and "prior record variable" scores under a "preponderance of the evidence" standard. Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court's decision in Blakely v Washington, 542 US 296 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt. The Court of Appeals affirmed the conviction, relying on this Court's decision in People v Claypool, 470 Mich 715, 730 n 14 (2004). Because we conclude that Michigan's sentencing scheme does not offend the Sixth Amendment, we affirm defendant's sentence.
People v. McCullen, No. 128161 (Mich. June 13, 2006) (available for download below):
Defendant was convicted of assault with intent to do great bodily harm less than murder 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." The trial court sentenced defendant within the 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. Defendant contends that the trial court violated Blakely v Washington, 542 US 296 (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.
June 13, 2006 at 10:30 PM | Permalink
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It is NOT a dodge, Professor, to fairly apply Supreme Court precedent. The MI Supreme Court seems right on the money.
Posted by: Tsk Tsk | Jun 14, 2006 3:26:14 AM
I am sorry if my use of the word "dodge" seems unduly pejorative. I suppose I should have said "avoids" or perhaps just "finds Blakely inapplicable." Sorry for a late night post having more of a nmegative connotation than I intended (especially before having a chance to read the full opinions).
Posted by: Doug B. | Jun 14, 2006 11:10:36 AM
I think there are several reasons why the Michigan Supreme Court ruled as it did in Drohan and McCuller. It didn't want to retreat from its Claypool decision from July 2004. Although Claypool was a prosecution appeal from a sentence imposing a downward departure below a statutorily required mandatory minimum, and therefore did not implicate Blakely issues at all, Claypool has been heavily relied upon by the Michigan Court of Appeals. Secondly, Michigan had many years of experience with court-drafted advisory sentencing guidelines, from which departures (especially upward departures) were not only permissible, but explicitly encouraged. A holding finding the legislatively-adoped mandatory guidelines unconstitutional under Blakely would have required a jury trial remedy. With Michigan's long prior history of advisory guidelines, even the Michigan Supreme Court could not have held, in imitation of the Booker remedy majority, that the legislature would have preferred advisory guidelines to mandatory ones. Thirdly, because Michigan is one of the relatively few jurisdictions still using indeterminate sentences in most felony cases, whereby the sentencing judge fixes the minimum the defendant must serve before becoming eligible for parole, but the legislature usually sets the maximum by statute, the Michigan courts have not perceived the guidelines as presenting the same problems as were implicated in the Washington and Federal guidelines in determinate-sentencing jurisdictions. The Michigan courts have not taken Justice Scalia's statement in Blakely, that the Sixth Amendment makes "the relevant 'statutory maximum' . . . the maximum he may impose without any additional findings," to apply to the minimum sentence in our indeterminate sentencing scheme. I still think otherwise, despite the decisions in Drohan and McCuller, but I'm just a criminal defense lawyer in a small county seat. Clearly, the next challenges to the Michigan sentencing guidelines will come in federal court.
Posted by: Greg Jones | Jun 14, 2006 3:57:00 PM
Based on the above post's description of the MI SC's opinions, it sure looks like "dodge" was an accurate term.
Posted by: Anon | Jun 14, 2006 8:33:40 PM
There's another problem with the Michigan Supreme Court's Blakely analysis in its decisions in Drohan and McCuller. Drohan was convicted as a third-felony offender. Therefore his maximum can be up to double the 15-year maximum fixed for first offenders, and the judge gets to fix the maximum at anything up to 30 years. The trial judge could have imposed a maximum of 20 years, or 23 years, or 25 years, for example (or even, in theory, a number less than the fixed 15-year minimum for first offenders, though such instances are extremely rare). Similarly, McCuller was convicted of an offense which carries a 10-year maximum for first offenders. A guideline range of 5-28 months says that McCuller was convicted and sentenced as a second felony offender, for which the maximum can be up to 50 percent more than the maximum for first offenders, or up to 15 years, which is the maximum the judge actually imposed. Therefore, in each of these cases, unlike convictions for first offenders, the judge got to fix the maximum, rather than having it fixed by the legislature. Since the legislature left the fixing of the longest possible sentence to the judge in each of these cases, I don't see a true Blakely issue in these cases at all. The remaining test will be for people convicted as first felony offenders, in the class of cases which carry a maximum penalty that is not life-or-any-term-of-years, so that the judge who imposes a prison sentence in those cases will be required to impose the legislatively-enacted maximum, and will fix only the minimum. I don't think the Michigan Supreme Court will have any problem in applying the rationale of Claypool, Drohan, and McCuller to those cases either, but that is the area in Michigan sentencing law which therefore implicates Justice Scalia's statement in Blakely as to the relevant maximum sentence for Sixth Amendment analysis.
Posted by: Greg Jones | Jun 17, 2006 9:48:08 AM
I'm a student, so forgive me if I seem to have no clue.
A side question comes up with McCuller.
If McCuller's sentencing guidelines had come to an intermediate sentence and the judge then exceeded the guidelines would the Supreme Court have ruled it unconstitutional?
I believe there is an inherent problem with allowing judges to use unproven information in determining punishment whether it be minimum or maximum.
When someone is accused of a crime often times many people come out of the woodwork crying me to simply in an attempt to gain from it when in reality no crime occured.
Posted by: Lee Strausberg | Jun 20, 2006 11:00:29 AM
Here is an interesting pending challenge to the Michigan Supreme Court regarding Blakely, Booker and Apprendi et al...
Posted by: Lee Strausberg | Jun 20, 2006 2:46:38 PM
That Renney challenge isn't interesting at all -- he isn't raising the right issue. If the properly scored guidelines entitles defendant to an intermediate sanction, the "interesting" question is NOT whether the judge articulated substantial and compelling reasons for the upward departure. The proper question that should have been raised by Renney was whether the upward departure violated Blakely because it utilized judicial fact finding to upwardly depart from the 12 month statutory maximum.
Posted by: lawgeek | Jun 29, 2006 11:14:43 PM
That issue is raised later. There are 5 appeals questions and they seem to be fashioned so that they could keep the issues separate.
Posted by: Lee Strausberg | Jul 18, 2006 4:16:42 PM
I am searching for help for my son. He was sentenced beyond guidelines for violation of MCL 257.9041C, Oper-Lic susp over 2nd/SB. The warden in Jackson notified the judge this was above the psi report. I have copy of this. My son did the time and is now out and I would like to see what can be done to correct this. The PSI was not right (describing me as an alcoholic when I have never been a drinker)and other errors. There is much more to this that I won't have room for. How do I handle this? Can anything be done. I will e-mail full details and copy of prison letter to anyone who can help resolve this and erase the record.
Posted by: Flora Lajman | Jul 2, 2008 12:18:21 PM