7.4Discretionary Consecutive Sentences

There are numerous statutes providing sentencing courts with discretionary authority to impose a consecutive sentence; this section discusses broadly applicable issues and examines some specific examples of discretionary consecutive sentencing authority. This section does not provide a complete list of every offense for which a court has discretionary consecutive sentencing authority.

Discretionary sentencing is often authorized under the following circumstances:

•Sentences for convictions arising out of the same transaction, see, e.g., MCL 750.110a(8) (first-degree home invasion); MCL 750.529a(3) (carjacking); MCL 750.520b(3) (first-degree criminal sexual conduct);

•Sentences for certain convictions carry an authorization to impose a consecutive sentence to any other violation of law, including violations arising out of the same transaction, see, e.g., MCL 750.50(7) (various mistreatment of animal offenses); MCL 750.122(11) (various witness interference offenses);

•Sentences for an underlying misdemeanor or felony offense, see, e.g., MCL 750.145d(3) (using internet/computer to commit certain crimes); MCL 750.212a(1) (crimes involving a vulnerable target);

•Sentences for offenses committed pending the disposition of a prior felony charge. MCL 768.7b(2)(a) (“if a person who has been charged with a felony, pending the disposition of the charge, commits a subsequent offense that is a felony, . . . the sentences imposed for the prior charged offense and the subsequent offense may run consecutively”).¹

There are also many criminal statutes that specifically authorize consecutive sentencing under specified circumstances. See, e.g., MCL 400.609(2) (authorizing consecutive sentences for an offender’s conviction of separate offenses under the Medicaid False Claim Act); MCL 750.411u(2) (authorizing consecutive sentencing for gang-related crimes).

A.Must Articulate Reasons for Consecutive Sentence

“[T]rial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.” People v Norfleet, 317 Mich App 649, 654 (2016).² “The decision regarding each consecutive sentence is its own discretionary act and must be separately justified on the record.” Id. at 665. “While imposition of more than one consecutive sentence may be justified in an extraordinary case, trial courts must nevertheless articulate their rationale for the imposition of each consecutive sentence so as to allow appellate review.” Id. at 665-666 (remanding for resentencing where the trial court, in imposing multiple consecutive sentences for five drug convictions, “spoke only in general terms” about the defendant’s background and history and the nature of the offenses involved and “did not speak separately regarding each consecutive sentence” imposed under MCL 333.7401(3)). See also People v Baskerville, 333 Mich App 276, 289-291 (2020) (holding that the trial court’s justification of its decision to impose a consecutive sentence was sufficient where it described the defendant’s treatment of the trafficked minor victim was “akin to slavery,” observed “it had never seen a sentencing guidelines score as high as defendant’s score,” and demonstrated its consideration of the offenses and the offender by discussing the defendant’s actions during the offense and during his telephone calls from jail); People v Norfleet (After Remand), 321 Mich App 68, 73 (2017) (holding that the trial court on remand properly ordered one of the defendant’s sentences to be served consecutively and ordered the remaining sentences to be served concurrently; “[t]he trial court properly recognized that it could not impose multiple consecutive sentences as a single act of discretion,” and it appropriately concluded that the single consecutive sentence was justified on grounds including the “defendant’s extensive violent criminal history, multiple failures to rehabilitate, and the manipulation of several less culpable individuals in his ongoing criminal operation”).

Note that while the decision to impose a consecutive sentence when not mandated by statute is reviewed for an abuse of discretion; the combined term itself is not subject to proportionality review. Norfleet, 317 Mich App at 664. See also Baskerville, 333 Mich App at 291 (rejecting the defendant’s argument that the consecutive sentence was “disproportionate under the circumstances” of his case because his mandatory minimum sentence was already a “death sentence” given his age, and holding that “the aggregate of the sentences is not disproportionate” where each individual sentence did not exceed the maximum punishment allowed for each offense of which he was convicted).

B.Judicial Fact-Finding Permitted

“[T]he Sixth Amendment does not prohibit the use of judicial fact-finding to impose [discretionary] consecutive sentencing.” People v DeLeon, 317 Mich App 714, 723, 726 (2016), adopting the rationale of Oregon v Ice, 555 US 160, 164 (2009). “Although consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense,” and Apprendi v New Jersey, 530 US 466 (2000), Alleyne v United States, 570 US 99 (2013), and People v Lockridge, 498 Mich 358 (2015), do not “compel[] the conclusion that consecutive sentencing in Michigan violates a defendant’s Sixth Amendment protections.” DeLeon, 317 Mich App at 723, 726 (additionally noting that “the trial court’s imposition of consecutive sentences [would not] be affected by whether the sentencing guidelines are mandatory or advisory”). Therefore, although the jury’s verdict “did not necessarily incorporate a finding that [the defendant’s first-degree criminal sexual conduct] conviction ‘ar[ose] from the same transaction’ as did his [second-degree criminal sexual conduct] conviction, . . . defendant [had] no Sixth Amendment right to have a jury make that determination” before the trial court could impose a consecutive sentence under MCL 750.520b(3). DeLeon, 317 Mich App at 726, quoting MCL 750.520b(3) (second alteration in original).

C.Discretionary Consecutive Sentencing — Issues

1.Controlled Substance Offenses

A sentence imposed for a controlled substance offense under MCL 333.7401(2)(a)³ may be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. MCL 333.7401(3). For a detailed discussion of issues related to controlled substance offenses, see the Michigan Judicial Institute’s Controlled Substances Benchbook, Chapter 6.

2.Violations Arising Out of the Same Transaction as the Sentencing Offense — Criminal Sexual Conduct

“The court may order a term of imprisonment imposed [for first-degree criminal sexual conduct under MCL 750.520b] to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.” MCL 750.520b(3).

“[A]n ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction”; rather, “[f]or multiple penetrations to be considered as part of the same transaction, they must be part of a ‘continuous time sequence,’ not merely part of a continuous course of conduct.” People v Bailey, 310 Mich App 703, 725 (2015). See also People v Brown, 495 Mich 962, 962-963 (2014), quoting People v Ryan, 295 Mich App 388, 402-403 (2012) (holding that “[t]he trial court imposed an invalid sentence when it imposed seven consecutive sentences for the defendant’s seven convictions of first-degree criminal sexual conduct”; “the trial court had discretion to impose consecutive sentences for at most three of the . . . convictions, because the three sexual penetrations that resulted in those convictions . . . ‘grew out of a continuous time sequence’ and had ‘a connective relationship that was more than incidental’”).

The phrase “any other criminal offense” in MCL 750.520b(3) “means a different sentencing offense,” and can include another CSC-I conviction. Ryan, 295 Mich App at 404-406 (rejecting the defendant’s assertion that the phrase “any other criminal offense arising from the same transaction” in MCL 750.520b(3) permits consecutive sentencing for a CSC-I offense only when the other sentence is for an offense other than CSC-I).

3.Pending Felonies

With the exception of major controlled substance offenses, MCL 768.7b(2)(a) authorizes discretionary consecutive sentencing for an offense committed pending disposition of a prior felony charge. Consecutive sentencing is mandatory if the subsequent offense is a major controlled substance offense.⁴ MCL 768.7b(2)(b).

The discretionary authority to impose consecutive sentences applies only to the “last in time” sentencing court. People v Chambers, 430 Mich 217, 231 (1988).

Two-year misdemeanors are considered “felonies for purposes of the Code of Criminal Procedure’s . . . consecutive sentencing statutes.” People v Smith, 423 Mich 427, 433-434 (1985) (noting that the Code of Criminal Procedure “defines ‘felony’ as an offense punishable by more than one year in the state prison”). However, under the Penal Code, two-year misdemeanors cannot be considered felonies. Id. “[A] two-year misdemeanor conviction arising out of the first felony charge may serve as the conviction of the prior charged offense required for consecutive sentencing” under MCL 768.7b. Smith, 423 Mich at 434 (quotation marks and citation omitted). “[A] charge remains ‘pending’ for purposes of [MCL 768.7b] until a defendant is sentenced on a conviction arising out of the offense, and until the original charge arising out of the offense is dismissed.” Smith, 423 Mich at 434.