Chapter 4: Sentencing Habitual Offenders

4.1Introduction

Michigan’s sentencing law is designed so that the punishment possible for conviction of a crime may be increased in proportion to the offender’s number of previous felony convictions. See MCL 777.21(3); MCL 769.10; MCL 769.11; MCL 769.12.

The “general” habitual offender statutes are codified in MCL 769.10 (one prior felony conviction), MCL 769.11 (two prior felony convictions), and MCL 769.12 (three or more prior felony convictions), and operate to raise the statutory maximum sentence allowed for repeat offenders based on both the defendant’s number of prior felony convictions and the specific maximum penalty authorized for conviction of the sentencing offense.1 

MCL 777.21 is the statutory provision that allows for an incremental increase in the upper limit of the recommended minimum sentence range (the “maximum-minimum” sentence) under the statutory sentencing guidelines based on the number of the defendant’s previous felony convictions.

This chapter discusses the method of determining the recommended minimum sentence ranges using the statutory sentencing guidelines and sentencing grids2 for habitual offenders under MCL 777.21. It also discusses permissible maximum sentences and other requirements under the general habitual offender statutes.

Note that in 2015, the Michigan Supreme Court rendered the previously-mandatory sentencing guidelines “advisory only.” People v Lockridge, 498 Mich 358, 365, 399 (2015), aff’g in part and rev’g in part 304 Mich App 278 (2014) and overruling People v Herron, 303 Mich App 392 (2013). Although “sentencing courts [are no longer] bound by the applicable sentencing guidelines range,” they must “continue to consult the applicable guidelines range and take it into account when imposing a sentence,” and they “must justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392, citing People v Coles, 417 Mich 523, 549 (1983), overruled in part on other grounds by People v Milbourn, 435 Mich 630, 644 (1990).3 

The Lockridge Court did not address habitual-offender sentencing. However, “the top of the guidelines range does not implicate the Sixth Amendment[.]” Lockridge, 498 Mich at 376 n 15. Accordingly, MCL 777.21 (the statutory guidelines habitual-offender provision allowing for an increase in the upper limit of the minimum guidelines range) and the general habitual offender statutes (MCL 769.10, MCL 769.11, and MCL 769.12, which operate to raise the applicable statutory maximum sentence) may not be implicated by Lockridge.

The Lockridge decision is discussed in detail in Section 1.4. See also the Michigan Judicial Institute’s Lockridge flowchart.

1    Additionally, MCL 769.12, governing fourth habitual offender status, provides for a mandatory minimum sentence of 25 years’ imprisonment for an offender who has been convicted of three or more prior felonies or felony attempts, including at least one listed prior felony and who commits or conspires to commit a subsequent serious crime. The 25-year mandatory minimum sentence imposed by MCL 769.12(1)(a) does not constitute cruel or unusual punishment. People v Burkett, 337 Mich App 631, 636, 642 (2021). See Section 4.4(C) for a detailed discussion.

2    See Section 1.7 for general discussion of the sentencing grids.

3   For more information on the precedential value of an opinion with negative subsequent history, see our note.