1.8Intermediate Sanctions

A.Statutory Authority and Impact of Lockridge

Two types of differentiated sentencing grid cells, intermediate sanction cells (governed by MCL 769.34(4)(a)-(b)) and straddle cells (governed by MCL 769.34(4)(c)),¹ generally provide for the imposition of intermediate sanctions.

MCL 769.34(4) provides:

“Intermediate sanctions must be imposed under this chapter as follows:

(a) If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines . . . is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record reasonable grounds to sentence the individual to incarceration in a county jail for not more than 12 months or to the jurisdiction of the department of corrections for any sentence over 12 months.

(b) If an attempt to commit a felony designated in offense class H . . . is punishable by imprisonment for more than 1 year, the court shall impose an intermediate sanction upon conviction of that offense absent a departure.

(c) 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 with or without a term of jail incarceration of not more than 12 months.”

MCL 769.34(4) reads as mandatory; however, after Lockridge,² trial courts are not required to impose an intermediate sanction under MCL 769.34(4). See People v Lockridge, 498 Mich 358, 365 n 1 (2015); People v Schrauben, 314 Mich App 181, 194 (2016), overruled in part on other grounds by People v Posey, 512 Mich 317, 326 (2023).³ Schrauben specifically applied the reasoning of Lockridge to MCL 769.34(4)(a), explaining “[i]n accordance with the broad language of Lockridge, [498 Mich at 365 n 1, 391,] under [MCL 769.34(4)(a)], a trial court may, but is no longer required to, impose an intermediate sanction if the upper limit of the recommended minimum sentence range is 18 months or less.” Schrauben, 314 Mich App at 194-195 (holding, “[c]onsistently with the remedy explained in Lockridge,” that “the word ‘shall’ in MCL 769.34(4)(a) [is replaced] with the word ‘may’”). Moreover, “because, under Lockridge, an intermediate sanction is no longer mandated,” a trial court does not violate Alleyne v United States, 570 US 99 (2013), by declining to impose an intermediate sanction under MCL 769.34(4)(a). Schrauben, 314 Mich App at 195. See Section 1.4 for discussion of Lockridge and Alleyne.

B.Examples of Intermediate Sanctions

Sanctions that are considered intermediate sanctions include, but are not limited to, any of the following:

•inpatient or outpatient drug treatment or participation in a drug treatment court (MCL 600.1060 et seq.);

•probation with conditions required or authorized by law;

•residential probation;

•probation with special alternative incarceration (SAI);

•mental health treatment;

•mental health or substance abuse counseling;

•participation in a community corrections program;

•community service;

•payment of a fine;

•house arrest; and

•electronic monitoring. MCL 769.31(b)(i)-(xi).

C.Intermediate Sanction Cells

Intermediate sanction cells are those cells in which the upper limit of the guidelines-recommended minimum range is 18 months or less. MCL 769.34(4)(a). Intermediate sanction cells are marked with an asterisk in the sentencing grids published in this chapter and in the State of Michigan Sentencing Guidelines Manual. An intermediate sanction is any sanction other than imprisonment in a county jail, state prison, or state reformatory that may be lawfully imposed on an offender. See MCL 769.31(b).

 

If the offender’s PRV and OV scores place him or her in an intermediate sanction cell, the trial court may impose an intermediate sanction. People v Schrauben, 314 Mich App 181, 194-195 (2016), overruled in part on other grounds by People v Posey, 512 Mich 317, 326 (2023).⁴ If the trial court declines to impose an intermediate sanction under MCL 769.34(4)(a) and instead imposes a prison sentence that is within the recommended minimum sentencing range, the prison sentence “is within the range authorized by law.” Schrauben, 314 Mich App at 195-196.

D.Attempted Class H Felony Offenses Punishable by More Than One Year of Imprisonment

Under MCL 769.34(4)(b), when an offender is convicted of attempting to commit a class H felony for which a term of more than one year of imprisonment is authorized, the trial court may impose an intermediate sanction.⁵

For example, furnishing a prisoner with contraband is a class H felony punishable by a maximum of five years of imprisonment. MCL 800.281(1); MCL 800.285(1); MCL 777.17g. Therefore, an offender convicted of attempting to furnish a prisoner with contraband would be convicted of attempting to commit a class H felony punishable by more than one year in prison. According to MCL 769.34(4)(b), the offender is eligible to be sentenced to an intermediate sanction—which may include up to one year in county jail.

E.Straddle Cells

Generally, straddle cells are those cells that “straddle” the division between prison and jail. Straddle cells are those cells in which the lower limit of the recommended range is one year or less and the upper limit of the recommended range is more than 18 months. MCL 769.34(4)(c); People v Stauffer, 465 Mich 633, 636 n 8 (2002). Straddle cells appear shaded in the sentencing grids published in the State of Michigan Sentencing Guidelines Manual and in the grids used in this chapter, as shown in the example in Section 1.7.

When an offender’s prior record variable (PRV) and offense variable (OV) levels result in his or her placement in a straddle cell, the sentencing court may sentence the offender in one of two ways described in MCL 769.34(4)(c)⁶:

•The court must impose a sentence in which the minimum term of imprisonment is within the range indicated in the straddle cell; that is, if the court sentences the offender to prison rather than jail, the minimum term must be within the range of months recommended in that cell, MCL 769.34(4)(c)(i); or

•The court must sentence the offender to an intermediate sanction, with or without a term of jail incarceration up to 12 months, MCL 769.34(4)(c)(ii).

People v Martin, 257 Mich App 457 (2003), provides an example of a case involving a straddle cell. MCL 769.34(4)(c). According to the guidelines, the defendant’s recommended minimum sentence was 5 to 28 months in prison for the offense of larceny from a person, MCL 750.357. Martin, 257 Mich App at 459-460. Pursuant to a Cobbs⁷ agreement, the defendant pleaded guilty based on the trial court’s preliminary sentence evaluation that the court would sentence him to a term in county jail rather than a term of imprisonment in state prison. Martin, 257 Mich App at 458. The defendant was sentenced as a second-offense habitual offender, MCL 769.10, to ten months in the county jail, and the prosecution appealed on the grounds that the trial court erred as a matter of law by imposing a determinate sentence. Martin, 257 Mich App at 458.

Although MCL 769.8 prohibits determinate sentencing⁸ where the penalty for a felony offense may be imprisonment in a state prison, the Michigan Court of Appeals concluded that the Legislature intended an exception to MCL 769.8 with the creation of “intermediate sanctions” for offenses “with a relative lack of severity.” Martin, 257 Mich App at 461.⁹ Specifically, the Court explained that sentencing the defendant—whose guidelines range fell within a straddle cell—to a determinate sentence of ten months in county jail “did not negate any statutory language, but merely recognized that our Legislature created an exception in less serious cases,” and “gave proper effect to MCL 769.34(4)(c).” Martin, 257 Mich App at 462.¹⁰