7.3Mandatory Consecutive Sentences

The following table details the statutes that require consecutive sentencing.

A.Offenses Committed During Incarceration or Escape — Issues

MCL 768.7a(1) provides: “A person who is incarcerated in a penal or reformatory institution in this state, or who escapes from such an institution, and who commits a crime during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime shall begin to run at the expiration of the term or terms of imprisonment which the person is serving or has become liable to serve in a penal or reformatory institution in this state.”

1.Institution Must be Located in Michigan

The unambiguous language of MCL 768.7a(1) indicates that the consecutive sentencing mandated by the statute applies only to offenders who commit a crime while incarcerated in a penal institution in Michigan, or while on escape from a penal institution in Michigan. People v Alexander, 234 Mich App 665, 676-677 (1999) (consecutive sentencing did not apply to the defendant’s sentence for commission of a crime in Michigan while on escape from a Louisiana prison).

Mandatory consecutive sentencing also applies to sentences imposed for crimes committed by an offender during his or her incarceration in a federal penal or reformatory institution located in Michigan. People v Kirkland, 172 Mich App 735, 737 (1988).

2.Misdemeanors

The consecutive sentencing mandate of MCL 768.7a(1) applies when an offender commits a misdemeanor offense “punishable by imprisonment” while incarcerated in or on escape from a penal institution in Michigan. People v Weatherford, 193 Mich App 115, 119-121 (1992). Any sentence imposed for the offender’s misdemeanor conviction must be served in the custody of the Department of Corrections and consecutively to the term of imprisonment the offender was serving at the time of the offense. Id. at 119.

3.Meaning of Penal or Reformatory Institution

“[F]or consecutive sentencing purposes, the term ‘penal or reformatory institution’ is broadly construed to include any grounds under the control of any person authorized by the Department of Corrections to have a prison inmate under care, custody or supervision either in an institution or outside an institution.” People v Parker, 319 Mich App 410, 416 (2017) (quotation marks and citation omitted). “Literal confinement  . . . is not a controlling factor if the person continues to be under the control of the Department of Corrections.” Id. (quotation marks and citation omitted).

The following have been held to satisfy the requirement of incarceration in a penal or reformatory institution under MCL 768.7a:

•a person on “pre-parole” status, Parker, 319 Mich App at 416, citing People v Larkin, 118 Mich App 471, 474 (1982) (quotation marks omitted);

•inmates assigned to halfway houses, Parker, 319 Mich App at 416, citing People v Kirkland, 172 Mich App 735, 737 (1988);

•inmates participating in community corrections programs, Parker, 319 Mich App at 416, citing Kirkland, 172 Mich App at 737;

•inmates on extended furloughs, Parker, 319 Mich App at 416, citing Kirkland, 172 Mich App at 737; and

•county jails, People v Sheridan, 141 Mich App 770, 774 (1985).

However, where the Department of Corrections (DOC) erroneously released the defendant before she had completed her sentences for two prior offenses, the trial court erred by ordering that her sentences for new offenses committed following her release run consecutively to the completion of her previous sentences; the fact that the defendant had time remaining on her previous sentences was “not, by itself, sufficient to find that [she] was ‘incarcerated in a penal or reformatory institution’ within the meaning of MCL 768.7a(1).” Parker, 319 Mich App at 419. “[E]ven a liberal construction of the phrase ‘incarcerated in a penal or reformatory institution’ [did] not bring defendant within MCL 768.7a(1) for sentencing purposes,” because “[a]fter the DOC erroneously released [her,] . . . the DOC’s control over defendant or her activities ceased,” and “[t]here [was] no evidence that the DOC was aware of defendant’s erroneous release or that it attempted to contact [her] afterward.” Parker, 319 Mich App at 416-417. “[M]erely being ‘liable to serve’ a sentence is [not] tantamount to being ‘incarcerated in a penal or reformatory institution’ for purposes of MCL 768.7a(1).” Parker, 319 Mich App at 419-421 (citing People v Veilleux, 493 Mich 914 (2012), and additionally rejecting the prosecution’s argument “that defendant was subject to consecutive sentencing pursuant to MCL 768.7a(1) because she committed the [new] crimes . . . while ‘temporarily outside the limits’ of a penal or reformatory institution” within the meaning of MCL 768.7).

4.Stacking Consecutive Sentences

The Michigan Court of Appeals “has repeatedly interpreted the phrase ‘or has become liable to serve’ in MCL 768.7a(1) as allowing a sentencing court to ‘stack’ or cumulate a defendant’s sentences for separate offenses committed while incarcerated or on escapee status.” People v Williams, 294 Mich App 461, 475 (2011). “By way of example, assume a defendant was sentenced in 1981 for committing offense A, was sentenced in 1982 for committing offense B while incarcerated, and then was sentenced in 1983 for committing offense C while incarcerated. Pursuant to MCL 768.7a(1), the sentencing court would be required to make each sentence consecutive to the others. The defendant would serve his or her sentence for offense A before commencing the sentence for offense B and would serve the sentence for offense B before commencing the sentence for offense C.” Williams, 294 Mich App at 475. See also People v Piper, 181 Mich App 583 (1989); People v McKee, 167 Mich App 258 (1988); People v Mandell, 166 Mich App 620 (1987).

However, MCL 768.7a(1) may not be used “as a means of imposing consecutive sentences for convictions arising out of contemporaneous offenses that were tried together in one trial.” Williams, 294 Mich App at 476. In Williams, the defendant was convicted of two offenses that were committed contemporaneously while he was serving a jail sentence for domestic violence. Id. at 465. The Court of Appeals held that although the trial court correctly applied MCL 768.7a(1) in ordering that the sentences for the two subsequent convictions run consecutively to the original domestic violence sentence, the trial court erred in further ordering that the sentences for the two subsequent convictions run consecutively to each other. Williams, 294 Mich App at 476-477. “[A] defendant ‘has become liable to serve’ a sentence [under MCL 768.7a(1)] only if that sentence was imposed (or the act underlying the sentence occurred) in the past”; accordingly, because “[t]he [defendant’s two subsequent] offenses occurred at the same time, the charges were tried together, and the court imposed the sentences at one proceeding,” the sentences for those offenses were required to run concurrently with each other. Williams, 294 Mich App at 476-477.

B.Offense Committed During Parole — Issues

MCL 768.7a(2) provides: “If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.”

1.When Sentence Begins to Run

In the context of the imposition of a consecutive, indeterminate prison term, the Court concluded that “the ‘remaining portion’ clause of [MCL 768.]7a(2) requires the offender to serve at least the combined minimums of his sentences, plus whatever portion, between the minimum and the maximum, of the earlier sentence that the Parole Board may, because the parolee violated the terms of parole, require him to serve.”Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 584 (1996).¹

In the context of the imposition of a consecutive, fixed jail term, the Court held that “[w]hen a jail sentence is made to run consecutively to an indeterminate prison sentence, the jail sentence does not begin to run until the defendant is paroled from the prison sentence or completes the maximum term of imprisonment.” People v Beard, 327 Mich App 702, 710 (2019) (holding “the trial court erred by ruling that defendant’s consecutive jail sentence ran from the date of sentencing” because the sentence “did not begin to run until his release from prison”).

2.Federal Supervised Release

“[A] federal term of ‘supervised release’ [imposed under 18 USC 3583(a)] is not the same as ‘parole’ under Michigan’s criminal justice system”; therefore, “MCL 768.7a(2) does not provide statutory authority” for a defendant’s sentence to run consecutively to a federal sentence for which the defendant was on supervised release when the sentencing offense was committed. People v Clark, 315 Mich App 219, 225, 231 (2016) (noting that “even though the purpose of each is similar, there are significant differences between parole—under the plain meaning of that term and as practiced in Michigan—and federal supervised release”).

C.Major Controlled Substance Offense When a Previous Felony Is Pending Disposition — Issues

MCL 768.7b(2)(b) requires consecutive sentencing if a defendant commits a major controlled substance offense while the disposition of another felony offense is pending. For a detailed discussion of issues related to major controlled substance offenses, see the Michigan Judicial Institute’s Controlled Substances Benchbook, Chapter 6.

D.Felony-Firearm/Pneumatic Gun—Issues

A person is guilty of felony-firearm if they carry or have in their possession a firearm when they commit or attempt to commit a felony, MCL 750.227b(1); a person is guilty of felony-pneumatic gun when they carry or have in their possession a pneumatic gun and use that pneumatic gun in furtherance of committing or attempting to commit a felony, MCL 750.227b(2).²

The sentence imposed for a felony-firearm conviction under MCL 750.227b(1), or a felony-pneumatic gun conviction under MCL 750.227b(2), must be served consecutively with and preceding the sentence imposed for the felony or attempted felony on which the conviction is based. MCL 750.227b(3).³ See also People v Clark, 463 Mich 459, 463-464 (2000) (remanding to correct judgment of sentence to indicate that each felony-firearm sentence is consecutive only to the corresponding conviction); People v Coleman, 327 Mich App 430, 441-442 (2019) (holding “[a] felony-firearm sentence must . . . be served consecutive with the sentence for the one predicate felony,” and clarifying that where multiple, separate felony-firearm charges are brought, there are “options as to which felony would ultimately run consecutive to the felony-firearm sentence”); People v Smith, 506 Mich 1, 8-9 (2020) (reiterating “that when the finder of fact does not explicitly find that the defendant committed a particular predicate felony with a firearm, the felony-firearm sentence cannot be consecutive with the sentence for that predicate felony”).⁴

A sentence for a violation of MCL 750.227b(1) or MCL 750.227b(2) is a determinate number of years depending on the number of the defendant’s previous convictions under the applicable subsection. MCL 750.227b(1); MCL 750.227b(2).

There are four weapons offenses on which a conviction under MCL 750.227b(1) or MCL 750.227b(2) cannot be based:

•unlicensed sale of firearms and sales to convicted felons and minors, MCL 750.223;

•carrying a concealed weapon (CCW), MCL 750.227;

•unlawful possession of a pistol by a licensee, MCL 750.227a; and

•alteration, removal, or obliteration of a firearm’s identification mark, MCL 750.230.

If a conviction is based on a qualifying underlying felony (i.e., not MCL 750.223, MCL 750.227, MCL 750.227a, or MCL 750.230), the defendant may also be convicted of any of the four offenses exempted from the consecutive sentencing mandate, but the sentence imposed for the conviction must be concurrent to the felony-firearm/pneumatic gun sentence. See People v Cortez, 206 Mich App 204, 207 (1994) (trial court erred in ordering the defendant’s felony-firearm sentence under MCL 750.227b to run consecutively to his sentence for carrying a concealed weapon under MCL 750.227 and held the felony-firearm conviction may run consecutive only to his intentional discharge of a firearm from a motor vehicle conviction).

The consecutive sentencing requirement applies only when the penalty imposed for the underlying felony is a term of imprisonment. People v Brown, 220 Mich App 680, 682 (1996). If the court imposes a sentence of probation for the felony offense underlying an offender’s felony-firearm conviction, the mandatory two-year sentence must run concurrently with the term of probation. Id. at 682-685.

E.Proportionality Challenges

“[W]here a defendant receives consecutive sentences and neither sentence exceeds the maximum punishment allowed, the aggregate of the sentences will not be disproportionate under [People v Milbourn, 435 Mich 630 (1990)⁵].” People v Miles, 454 Mich 90, 95 (1997) (holding “a sentencing court need not consider the length of a consecutive or concurrent mandatory sentence when setting an indeterminate sentence”).