1.35Felony Sentencing

“[T]he legislative sentencing guidelines are advisory in every case, regardless of whether the case actually involves judicial fact-finding.” People v Rice, 318 Mich App 688, 692 (2017); MCL 769.34(2)-(3). See also People v Steanhouse, 500 Mich 453, 466 (2017).

When sentencing a defendant, the trial court’s objective is to tailor a penalty that is appropriate to the seriousness of the offense and the criminal history of the offender. People v Rice (On Remand), 235 Mich App 429, 445 (1999). The “framework” of an appropriate sentence consists of four basic considerations:

•the likelihood or potential that the offender could be reformed;

•the need to protect society;

•the penalty or consequence appropriate to the offender’s conduct; and

•the goal of deterring others from similar conduct.

Rice, 235 Mich App at 446, citing People v Snow, 386 Mich 586, 592 (1972).

For more information about felony sentencing, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2.

A.Calculating the Minimum Sentence Range

While the legislative sentencing guidelines are advisory, “a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence.” Lockridge, 498 Mich at 365. The recommended minimum sentence range for an offense to which the sentencing guidelines apply is determined by scoring the appropriate offense variables (OVs) and prior record variables (PRVs) for a specific conviction. MCL 777.21. All felony offenses to which the sentencing guidelines apply fall into one of six offense categories called crime groups,¹ and each crime group is further organized into crime classes² that indicate the severity of the offense. See MCL 777.5 and MCL 777.21(1)(c). An offense’s crime class determines which sentencing grid must be used for determination of the offender’s recommended minimum sentence range. See, e.g., MCL 777.61 to MCL 777.69. The crime group an offense falls into dictates which OVs must be scored for that offense and how those variables must be scored.³ People v Bonilla-Machado, 489 Mich 412, 422 (2011). For cases involving vehicles, OVs 17 (degree of negligence exhibited) and 18 (operator ability affected by alcohol/drugs) contain offense characteristics specific to offenses involving “the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive.” MCL 777.22(1); MCL 777.22(5).⁴

The rule of Apprendi, 530 US at 490 (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt[]”), does not apply to prior convictions and therefore presumably does not implicate the scoring of prior record variables under Michigan’s sentencing guidelines. See Alleyne, 570 US at 111 n 1 (noting that “[i]n Almendarez–Torres v United States, [523 US 224 (1998)], [the United States Supreme Court] recognized a narrow exception to [the] general rule [of Apprendi] for the fact of a prior conviction[;]” the Alleyne Court declined to revisit Almendarez-Torres “[b]ecause the parties [did] not contest that decision’s vitality[]”); see also, generally, Lockridge, 498 Mich at 370 n 12.

B.Departures

“A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in [MCL 777.1 et seq.] if the departure is reasonable and the court states on the record the reasons for the departure.” MCL 769.34(3). “A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness[, and] . . . [r]esentencing will be required when a sentence is determined to be unreasonable.” People v Lockridge, 498 Mich 358, 392 (2015). “[S]entencing courts must justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392. Appellate courts review the reasonableness of a sentence for an abuse of discretion “informed by the ‘principle of proportionality’ standard” set forth in People v Milbourn, 435 Mich 630, 636 (1990). People v Steanhouse, 500 Mich 453, 476 (2017). The principle of proportionality requires “‘sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” Id. at 474, quoting Milbourn, 435 Mich at 636. See also Steanhouse, 500 Mich at 460, 472, quoting Milbourn, 435 Mich at 661 (“‘the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range’”).