Review of Claims of Constitutional Guidelines-Scoring Error Under Lockridge

5.9 Review of Claims of Constitutional Guidelines-Scoring Error Under Lockridge

In 2015, the Michigan Supreme Court, applying Alleyne v United States, 570 US 99 (2013), and Apprendi v New Jersey, 530 US 466 (2000), held that “Michigan’s sentencing guidelines . . . [are] constitutionally deficient[] . . . [to] the extent [that they] . . . require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range[.]” People v Lockridge, 498 Mich 358, 364 (2015). “To remedy the constitutional violation,” the Lockridge Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory” and “[struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3),” further holding that although “a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence,” the legislative sentencing guidelines “are advisory only.” Lockridge, 498 Mich at 365, 391, 399. 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.

Unpreserved Lockridge issues are reviewed “for plain error affecting substantial rights[.]” Lockridge, 498 Mich at 392, 392-393 n 29 (holding these errors are not structural) (citations omitted). Preserved Lockridge issues are reviewed for harmless error beyond a reasonable doubt. People v Stokes (Stokes I), 312 Mich App 181, 198 (2015), vacated in part on other grounds 501 Mich 918 (2017).¹

There are three types of cases in which plain error categorically cannot be established:

•Where sentencing facts were admitted by the defendant or found by the jury. Lockridge, 498 Mich at 394-395.² See also People v Jackson (On Reconsideration), 313 Mich App 409, 436 (2015) (holding there was no Lockridge error regarding the scoring of OV 13 because it was based on offenses to which the defendant previously pleaded guilty).

•Where the trial court imposed a departure sentence, and accordingly, did not rely on the guidelines. Lockridge, 498 Mich at 394, 395 n 31 (where the defendant “received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines,” he could not “show prejudice from any error in scoring the OVs in violation of Alleyne”).

•Where correction of the alleged error would not change the applicable minimum sentence range. Lockridge, 498 Mich at 399. See also People v Geddert, 500 Mich 859, 859 (2016) (resentencing was required “[b]ecause correcting the OV score would change the applicable guidelines range”).

The remand procedure from United States v Crosby, 397 F3d 103, 118 (CA 2, 2005) for possible resentencing applied to sentences imposed in violation of the Sixth Amendment under Lockridge on or before July 29, 2015. A detailed discussion of this procedure is not included in this benchbook because most of these challenged have been resolved. For information about the Crosby remand procedure, see the Michigan Judicial Institute’s Crosby Remands Quick Reference Guide and Crosby Remands Flowchart.

¹For more information on the precedential value of an opinion with negative subsequent history, see our note.

²For purposes of determining “[w]hether any necessary facts were ‘admitted by the defendant’” within the meaning of Lockridge, the phrase “‘admitted by the defendant’ . . . means formally admitted by the defendant to the court, in a plea, in testimony, by stipulation, or by some similar or analogous means.” People v Garnes, 316 Mich App 339, 344 (2016). “[A] fact is not ‘admitted by the defendant’ merely because it is contained in a statement that is admitted.” Id., citing Apprendi v New Jersey, 530 US 466, 469-471 (2000).