It was a quiet year on sentencing matters. The Michigan Supreme Court heard oral argument in three cases where relief seemed plausible, but the Court later denied leave to appeal without disturbing two published Court of Appeals decisions that were either hard to fathom or based on questionable legal grounds. Of the cases that led to full decisions, the most noteworthy, involved restitution (it is not punishment) and sex offender registration (it is cruel or unusual punishment for a non-sexual crime). All in all, there were few sentencing decisions, and it was a fairly uneventful year for the development or clarification of Michigan sentencing law.

Leave denied after oral argument

Jail unauthorized for csc third-degree conviction: Ten days after hearing oral argument, the Supreme Court denied leave to appeal on the question of a stand-alone jail sentence for third-degree criminal sexual conduct. Frustrating is the Court’s failure to resolve the question posed to the parties: does the indeterminate sentence statute, MCL 769.8, require a prison sentence for first-time felonies or does it merely provide that a prison sentence imposed for those felonies must be indeterminate? The question was a significant one because the Court of Appeals reasoned in part that a prison sentence is required under MCL 769.8. Yet several current statutes contradict this conclusion, and the historical record is strong that MCL 769.8 merely provides for the type of sentence to be imposed (i.e., indeterminate) when prison is selected for first-offense felonies. Perhaps the Supreme Court avoided correcting the error because the Court agreed with the Court of Appeals that 1) there is no right to an intermediate sanction when the sentencing guidelines range is 21 to 35 months, and 2) CSC third-degree is not a probationable offense. People v Pinson (On Remand), 344 Mich App 305 (Docket No. 356624, 12/1/22), oral argument granted, 511 Mich 964 (5/24/23), lv den 4 NW2d 748 (4/26/24).

Acquitted conduct in presentence report: This case presented a request for extension of the rule of People v Beck, 504 Mich 605 (2019), to preclude reference to acquitted conduct in the presentence report. The Supreme Court heard oral argument and then denied leave to appeal. People v Montez, oral argument granted 979 NW2d 334, lv den 513 Mich 1028; 2 NW3d 916 (3/8/24).

Offense Variable 3: The Court of Appeals, without fully explaining how there was “bodily injury” in a situation with no physical injury but the administration of prophylactic measures to prevent pregnancy and sexually transmitted diseases, upheld the assessment of ten points under Offense Variable 3 in a sexual assault case. The Supreme Court heard oral argument on this issue and the prosecutor presented several different theories (including semen in the victim’s body), with the ultimate result of leave to appeal being denied. People v Johnson, 342 Mich App 90; 992 NW2d 668 (6/23/22), oral argument granted 982 NW2d 391, lv den 513 Mich 944; 997 NW2d 903 (12/15/23).

Opinions released after oral argument

Restitution is not punishment: The Supreme Court concluded that restitution is a civil remedy that does not constitute criminal punishment for purposes of an ex post facto claim. The Court recognized the potential for affirmative restraint (incarceration) when a defendant refuses to pay restitution despite having the ability to do so, and it agreed that restitution is tied to a criminal conviction, but overall, the restitution statutes do not function as punishment. People v Neilly, ___ Mich ___ (Docket No. 165185, 7/8/24).

SORA and non-sexual crimes: In a win for the defendant, the Supreme Court held that application of the 2021 SORA to the non-sexual crime of unlawful imprisonment of a minor constitutes cruel or unusual punishment under the Michigan Constitution. Note, however, the Court expressed no opinion on whether the 2021 SORA constitutes punishment, let alone cruel or unusual punishment, for non-sexual crimes. People v Lymon, ___ Mich ___ (Docket No. 164685, 7/29/24), vacating in part People v Lymon, 342 Mich App 46 (2022).

Review of parole board decision to grant parole: In a defeat for the Macomb County Prosecutor’s Office, the Supreme Court concluded that the trial judge and the Court of Appeals improperly substituted their judgment for that of the parole board by reversing the decision of the parole board to grant parole to an individual convicted of first-degree criminal sexual conduct who scored in the high probability range (to approve parole) under the parole guidelines. The Supreme Court noted that even where there are substantial and compelling reasons to depart from the parole guidelines and deny parole, the parole board has not automatically abused its discretion in granting parole. Where there are substantial and compelling reasons to depart, the question to review is whether the parole board’s decision not to depart constitutes an abuse of discretion. On the facts of this case, it did not. People v McBrayer, 511 Mich 403; 999 NW2d 410 (7/24/23).

Orders granting sentencing relief 

Parks applied to felony-murder conviction: With little fanfare, the Court afforded relief to a defendant who was 18 years old at the time of commission of felony-murder and was sentenced to mandatory life without parole, concluding he was entitled to resentencing under People v Parks, 510 Mich 225 (2022) (a case involving premeditated murder). People v Thompson, 513 Mich 936 (12/15/23).

JLWOP and applying correct standard: In its initial decision to hear oral argument, the Supreme Court asked whether the trial court abused its discretion by imposing a life-without-parole sentence when the lower court appeared to place greater value on defendant’s character and behavior before and during the crime (from 1980) in contrast to more recent evidence regarding rehabilitation. In its order granting relief, the Supreme Court remanded for resentencing because the trial court had not operated within the appropriate framework of a presumption against a life-without-parole sentence, a presumption that can only be overcome by the prosecutor using clear and convincing evidence. People v Musselman, oral argument granted 982 NW2d 388 (2021), resentencing ordered 513 Mich 897; 997 NW2d 47 (11/22/23).

Offense Variable 19: Following up on its decision in People v Deweerd, 511 Mich 979 (2023) (false denial of culpability insufficient to score Offense Variable 19), the Supreme Court granted resentencing where the prosecutor confessed error under Deweerd and the facts involved a defendant who denied multiple times having needles or illicit drugs in her possession, when in fact she did. People v Nelson, ___ Mich ___ (Docket No. 166308, 5/10/24) (relevant facts borrowed from the dissenting opinion of Viviano, J.). 

Restitution: The Supreme Court’s order says very little beyond this: Where the record, including the presentence report, did not indicate a basis for restitution, the trial court erred in ordering $900 in restitution. The Supreme Court vacated the restitution award and remanded to the trial court for articulation of an evidentiary basis for the award and correction of the presentence report. People v Riddle, 512 Mich 919 (9/8/23).

Right to allocution violated: In a decision that preceded the amendments of MCR 6.425(D) and MCR 6.610(G), both effective May 1, 2024, and both directing the trial judge to personally offer allocution to defendant, the Supreme Court held that it was insufficient for the trial court to address only defense counsel when offering allocution. People v Parker, 513 Mich 976; 999 NW2d 39 (Docket No. 165674, 1/12/24).

Statutory guidelines and review of habitual offender sentence: Sometimes the Court of Appeals operates from left field, leaving the rest of us, including the Supreme Court, to wonder about a particular decision. Here, the Court of Appeals erroneously rejected defendant’s challenge to the proportionality of his habitual offender sentence, reasoning that the guidelines do not apply to habitual offender sentencing. Although that was true under the judicial sentencing guidelines (1983-1999), it is not true under the legislative sentencing guidelines (for felonies committed on or after January 1, 1999). The Supreme Court remanded to the Court of Appeals for reconsideration of the defendant’s proportionality challenge using the correct standard. People v Parnell, 512 Mich 927 (9/13/23).  

Anne Yantus
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. 

Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

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