7.2Concurrent and Consecutive Sentences

The court must impose a concurrent sentence unless there is statutory authority for imposing a consecutive sentence. People v Sawyer, 410 Mich 531, 534 (1981).

“The purpose of a consecutive sentencing statute is to deter persons convicted of one crime from committing other crimes by removing the security of concurrent sentencing.” People v Parker, 319 Mich App 410, 414 (2017) (quotation marks and citation omitted). “Accordingly, consecutive sentencing statutes should be construed liberally in order to achieve the deterrent effect intended by the Legislature.” Id. at 414-415 (cleaned up).

Where consecutive sentencing is authorized, the statutory language will indicate whether the consecutive nature of the sentence is mandatory or discretionary. See Section 7.3, discussing mandatory consecutive sentences and Section 7.4, discussing discretionary consecutive sentences.

“[U]nless the Legislature clearly manifests a contrary intent,” sentencing provisions in effect at the time an offense is committed apply to a trial court’s imposition of sentence, not the amended sentencing provisions that became effective after the offense was committed but before the defendant was sentenced. People v Doxey, 263 Mich App 115, 121-123 (2004) (quotation marks and citation omitted).

A.Judgment of Sentence

The trial court must specify in the judgment of sentence whether the sentence is concurrent or consecutive. MCL 769.1h(1).

1.Requirement to Provide Copies

The court must give a copy of the judgment of sentence to the prosecuting attorney, the defendant, and the defendant’s counsel. MCL 769.1h(2).

2.Objections and Required Hearing

The prosecuting attorney or defense counsel, or the defendant, if he or she is not represented by an attorney, may file an objection to the consecutive or concurrent nature of sentences described in the judgment of sentence. MCL 769.1h(3). If an objection is filed the court must “promptly hold a hearing[.]” Id. 

3.Computation of Sentence

A correctional facility computes the length of an offender’s sentence by reference to the offender’s judgment of sentence. MCL 791.264(3). Except where the sentencing offense is one of the five offenses expressly listed in MCL 791.264(4)-(5), if a judgment of sentence does not specify whether a sentence is to run concurrently or consecutively to an offender’s other sentences, the sentence must be computed as if it is to be served concurrently. MCL 791.264(3).

4.Correction of Sentence or Judgment of Sentence¹

MCR 6.435 governs the correction of mistakes; it applies in both felony and misdemeanor cases. MCR 6.001(B). “Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it.” MCR 6.435(A). Courts are more restricted when correcting substantive mistakes: “After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.” MCR 6.435(B).

In felony cases,² MCR 6.429(A) provides courts with the authority to modify a sentence after a judgment has been entered: “The court may correct an invalid sentence, on its own initiative after giving the parties an opportunity to be heard, or on motion by either party. But the court may not modify a valid sentence after it has been imposed except as provided by law. Any correction of an invalid sentence on the court’s own initiative must occur within 6 months of the entry of the judgment of conviction and sentence.”

An error involving concurrent or consecutive sentencing in the judgment of sentence can be a substantive mistake requiring a hearing or a clerical mistake depending on the circumstances. See People v Thomas, 223 Mich App 9, 15-16 (1997) (where consecutive sentence was required but the court mistakenly imposed a concurrent sentence, the due process afforded by a resentencing hearing is required because a defendant is exposed to a greater possible penalty); People v Alexander, 234 Mich App 665, 677-678 (1999) (where the court mistakenly imposed consecutive sentences without statutory authority to do so, a resentencing hearing was not required because the defendant’s due process rights were not implicated because correction of the invalid sentence would result in a decrease in the defendant’s overall prison term); People v Howell, 300 Mich App 638, 646-651 (2013) (due process does not require a resentencing hearing before the trial court corrects judgment when it lacks “discretion to sentence a defendant any differently,” and further holding failure to specify statutorily required consecutive sentence could be corrected under MCR 6.435(A)); People v Beard, 327 Mich App 702, 706-707 (2019) (where the beginning date of the sentence in the original judgment of sentence was ambiguous, the defendant “was not seeking to correct an invalid sentence imposed by the trial court but rather was attempting to enforce the imposed sentence,” and the defendant’s motion was “best viewed as a motion to correct a mistake”).

B.Sentencing Guidelines³

When a defendant is convicted of multiple offenses, MCL 777.21(2) and MCL 771.14(2)(e) govern which convictions must be scored to calculate a minimum sentence range.

Concurrent sentences. Under MCL 771.14(2)(e), where the defendant is being sentenced concurrently, the trial court is only required to score the highest class felony. People v Lopez, 305 Mich App 686, 692 (2014). See also People v Mack, 265 Mich App 122, 126-129 (2005). However, “when there are multiple convictions of the same crime class and that shared crime class is the highest crime class, ‘each’ of those convictions must be scored.” People v Reynolds, 334 Mich App 205, 210 (2020) (holding that where the defendant was convicted of two Class B crimes against a person, the sentences for which were to be served concurrently, the trial court erred by only calculating the guidelines range for one of the Class B crimes), aff’d in part and rev’d in part 508 Mich 388 (2021) (adopting this portion of the Court of Appeals’ analysis). When scoring multiple convictions for different offenses within the same crime class leads to different guidelines ranges, MCL 771.14(2)(e)(ii) and MCL 771.14(2)(e)(iii) do not require the sentencing court to “use only the highest guidelines range among two equally classified felony offenses when imposing concurrent sentences for those offenses.” Reynolds, 508 Mich at 395-396 (emphasis omitted). Rather, for concurrent-sentencing purposes, MCL 771.14(2)(e)(ii) and MCL 771.14(2)(e)(iii) require “that when two or more offenses fall within the same crime class and it is the highest applicable crime class, then not only must each offense be scored, but the defendant must also be sentenced based on the respective minimum sentencing guidelines ranges for each offense.” Reynolds, 508 Mich at 396.

Further, “when imposing concurrent sentences, . . . [courts should] ensure that each individual sentence, irrespective of any guidelines calculations used, does not exceed its statutory maximum.” Lopez, 305 Mich App at 692.

Note that when identical concurrent sentences are imposed for multiple convictions on the basis of the sentence for the highest class crime, the sentence for the lower class crime is a departure sentence despite the fact that it has “no practical effect” in light of the sentence for the highest class crime. People v Gunn, 503 Mich 908, 908 (2018) (remanding for resentencing where defendant was originally sentenced to 15 years for both placing explosives on or near property and second-degree arson on the basis of the guidelines score for placing explosives on or near property, then later received a reduced sentence on the placing explosives conviction but not the arson conviction; “[t]he arson sentence, being based on a higher class crime offense sentence that had been significantly reduced, was invalid because it was based on inaccurate information”).

Consecutive sentences. The guidelines must be scored for every conviction that can be served consecutively. MCL 777.21(2); MCL 771.14(2)(e)(i). See also People v Alfaro, 497 Mich 1024, 1024 (2015) (noting that “MCL 771.14(2)(e) required the probation officer to include in the presentence report . . . both the ‘sentence grid . . . that contains the recommended minimum sentence range’ and the ‘computation that determines’ that range for all convictions for which a consecutive sentence was authorized”) (second alteration in original).