5.4Indeterminate Sentences1

A first-time offender convicted of a felony punishable by imprisonment in a state prison may not be sentenced to a definite term of imprisonment; rather, the court must sentence the defendant to a minimum term and must state the maximum term of imprisonment for the record. MCL 769.8(1).2 See also People v Pinson (On Remand), 344 Mich App 305, 316-317 (2022) (holding MCL 769.8(1) “requires a court to impose an indeterminate sentence with a minimum and a maximum term when a defendant is convicted for a first-time felony and the violated statute provides for imprisonment in a state prison”).

The maximum term of imprisonment is the maximum penalty authorized by law for conviction of the sentencing offense, unless otherwise provided by Chapter 9 of the Code of Criminal Procedure (MCL 769.1–MCL 769.36). MCL 769.8(1).

Similarly, all sentences imposed under MCL 769.10, MCL 769.11, and MCL 769.12 (the general habitual offender statutes) must be indeterminate, meaning there is a minimum and maximum sentence “in terms of years or a fraction of a year[.]” MCL 769.10(2); MCL 769.11(2); MCL 769.12(2).

Indeterminate sentencing does not apply to offenses for which the only punishment prescribed by law is life in prison. MCL 769.9(1).

Where the punishment prescribed by law is life or any number of years, the court may sentence the defendant to life or to a term of years. MCL 769.9(2). If the court sentences the defendant to a term of years, the court must fix a minimum term and maximum term of years or fractions of years. Id. The court may not—in the same sentence—set the maximum sentence at life imprisonment and set the minimum sentence at a term of years. Id. For example, a sentence of “18 years to life” is invalid. People v Phaneuf, 478 Mich 862, 862 (2007). But see MCL 750.335a(2)(c) (providing that violation of MCL 750.335a(1) by a sexually delinquent person “is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life”); People v Arnold, 502 Mich 438, 482 (2018) (Arnold I) (holding that MCL 750.335a(2)(c) provides “an option a trial court could use its discretion to consider imposing alongside the other statutory penalties available under [MCL 750.335a]”); People v Arnold, 508 Mich 1, 6-7 (2021) (Arnold II) (holding “individuals convicted of an indecent-exposure offense under [MCL 750.335a] as sexually delinquent persons must be sentenced pursuant to the penalties prescribed in that statute as described in [Arnold I]”).

A.The Tanner Rule

The common-law “Tanner rule” applies to indeterminate sentences and requires that the minimum sentence not exceed two-thirds of the maximum sentence. People v Tanner, 387 Mich 683, 690 (1972). In other words, any minimum term of imprisonment that exceeds two-thirds of the maximum term imposed does not constitute an indeterminate sentence. Id. The Tanner rule was codified in MCL 769.34(2)(b), which provides that “[t]he court shall not impose a minimum sentence, including a departure,[3] that exceeds 2/3 of the statutory maximum sentence.” See also People v Garza, 469 Mich 431, 435 (2003).

The Tanner rule does not apply to:

•crimes punishable with imprisonment for “life or any term of years,” People v Lewis, 489 Mich 939, 939-940 (2011); see also People v Harper, 479 Mich 599, 617 n 31 (2007),

•mandatory life in prison sentences, Tanner, 387 Mich at 690, and

•where a statute provides a mandatory minimum sentence. Id. 

The proper remedy for a violation of the Tanner rule is a reduction in the minimum sentence. People v Thomas, 447 Mich 390, 392-394 (1994).

B.The Tanner Rule Extended to Habitual Offenders

The Tanner rule applies to the interval between minimum and maximum sentences in cases involving habitual offenders. People v Wright, 432 Mich 84, 89, 93-94 (1989) (concluding “that the Legislature intended to provide a meaningful interval between minimum and maximum sentences imposed pursuant to [the habitual offender sentencing provisions]”).

1   Although, “[i]n [People v Drohan, 475 Mich 140, 153 n 10 (2006), where the Michigan Supreme Court] cited the definition of ‘indeterminate sentence’ from Black’s Law Dictionary (8th ed): a sentence ‘of an unspecified duration, such as one for a term of 10 to 20 years,’” and correctly concluded “that Michigan has an indeterminate sentencing scheme under that definition of the term,” People v Lockridge, 498 Mich 358, 380 n 18 (2015), the Lockridge Court further explained that “Michigan’s sentencing scheme is not ‘indeterminate’ as the United States Supreme Court has ever applied that term,” id. at 380 (citations omitted; emphasis added). Rather, “the relevant distinction between constitutionally permissible ‘indeterminate’ sentencing schemes and impermissible ‘determinate’ sentencing schemes, as the United States Supreme Court has used those terms, . . . turns on whether judge-found facts are used to curtail judicial sentencing discretion by compelling an increase in the defendant’s punishment[; i]f so, the system violates the Sixth Amendment[, and] Michigan’s sentencing guidelines do just that.” Id. at 383.

2   Note that MCL 750.506 provides a specific exception to this rule authorizing an optional jail sentence for first-time offenders. MCL 750.506 provides: “Whenever any person shall be convicted of a first offense herein declared to be a felony, punishable by imprisonment for a term of not more than 5 years, the court may instead of imposing the sentence provided, sentence such convicted person to the county jail for a period not to exceed 6 months.”

3    In People v Lockridge, 498 Mich 358, 391 (2015), the Michigan Supreme Court “[struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).” The Lockridge Court additionally stated that “[t]o the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary.” Lockridge, 498 Mich at 365 n 1. Subsequently, MCL 769.34 was amended to omit the substantial and compelling language and to explicitly provide for reasonable departures. See 2020 PA 395, effective March 24, 2021. See Section 1.4 for discussion of Lockridge.