Opposition Brief — Kittka v. Michigan (No. 07-862)

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EX 9 FILED

No. 07-862 vole Macc

ERK

SUPREME COURT, U.S.

In the Supreme Court

of the United States

JEFFREY KITTKA,

Petitioner,

STATE OF MICHIGAN,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MICHIGAN COURT OF APPEALS

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

David G. Gorcyca

Prosecuting Attorney

Oakland County, Michigan

JOHN PALLAS (P42514)

Counsel of Record

Oakland County

Prosecutor’s Office

1200 North Telegraph Road

Pontiac, Michigan 48341

(248) 858-0656

MARILYN DAY (P44116)

Attorneys for Respondent

-i-

COUNTERSTATEMENT OF QUESTION

PRESENTED FOR REVIEW

Whether Petitioner has failed to show

compelling reasons for review where the question

presented by Petitioner was never raised in the trial

court and not discussed by Michigan’s highest state

court and there exists no contradictory authority that

Michigan’s indeterminate sentencing scheme violates

the Sixth Amendment of the United States

Constitution?

-ij-

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION

Patioseett brut) POR REVIEW..............0ccc0csseessessesssenss i

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COUNTERSTATEMENT OF THE CASE .............. 1

ARGUMENT

I. PETITIONER HAS NOT SHOWN

COMPELLING REASONS FOR REVIEW

BECAUSE THE QUESTION PRESENTED BY

PETITIONER WAS NEVER RAISED IN THE

TRIAL COURT AND WAS NOT DISCUSSED

BY MICHIGAN’S HIGHEST COURT AND

THERE EXISTS NO CONTRADICTORY

AUTHORITY THAT MICHIGAN’S

INDETERMINATE SENTENCING SCHEME

VIOLATES THE SIXTH AMENDMENT OF

THE UNITED STATES CONSTITUTION ............

A. CERTIORARI REVIEW IS

UNWARRANTED BECAUSE THE MICHIGAN

COURT OF APPEALS HAD ADEQUATE AND

INDEPENDENT STATE LAW GROUNDS TO

DENY PETITIONER’S APPEAL AND ANY

DISCUSSION OF BLAKELY V.

WASHINGTON, 542 U.S. 296 (2004) WAS

FE Se Ce IIS sossinsicd Spice Sip tciuns batiinintonesed ecantaneneaaaes 5

B. PETITIONER HAS NO

CONSTITUTIONAL RIGHT # £TO AN

INTERMEDIATE SANCTION AND TRIAL

JUDGES MAY ENGAGE IN JUDICIAL

FACTFINDING IN IMPOSING A MINIMUM

Ne GIR se Sohn haicaca tensed ouancrsensanbalamerae untenetonanpna sas 8

C. THE TRIAL COURT DID NOT IMPOSE A

SENTENCE IN VIOLATION OF THE SIXTH

pt | t Eee eR np ENON Irss ee orerinD tat ene 12

CONCLUSION AND) HELE o.siscccccnceccsccensssssvascunnnss 20

-|V-

TABLE OF AUTHORITIES

Page

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000)......8, 13

Blakely v. Washington, 542 U.S. 296 (2004) . passim

Cunningham uv. California, 549 U.S. (2007).....16-18

Harris v. United States, 536 U.S. 545 (2002)...14-16

McMillan v. Pennsylvania, 477 U.S. 79 (1986) 14-16

People v. Carter, 462 Mich. 206; 612 N.W. 144

i: SS RSIS Dre Sas OI or OE SVS ar ORO OEP TO 6

People v. Drohan, 475 Mich. 140; 715 N.W.2d 228

I es ere ee ee ee ers ee eet el 13

People v. Harper, 479 Mich. 599; 739 N.W.2d 523

Mas rnscscstdattsiotecdibinigianaltieascbentas eamonscidsamesonteg yas 9

People uv. Hornsby, 251 Mich. App. 462; 650 N.W.2d

I cli rige Sg ea kc vsecea ta emsnntiene nents aes 12

People v. Houston, 261 Mich. App. 463; 683 N.W.2d

192 (2004), affd 473 Mich. 399 (2005)................ 12

People v. McCuller, 479 Mich. 672; 739 N.W.2d 563

"i: | SERN OS ROTA EERE Foe OO NE PEE Pr 9,11, 12

People v. Perez, 255 Mich. App. 703; 662 N.W.2d

446 (2003), vacated in part on other grounds

i I FE Cocks tec ciusiuincas 12

«Ye

People v. Ratkov, 201 Mich. App. 123; 505 N.W.2d

886 (1993), remanded on other grounds 447

Ne Ni tans cn cacdaadsnnnsiecanenaéneuadeimunn 12

People v. Walker, 428 Mich. 261; 407 N.W.2d 367

Ra ns eis a cv asin aadhasdaes aie 12

NS ORS Sg OSG Ae” A 1 5 13

United States v. Booker, 543 U.S. 220 (2005).. 17, 18

Statutes

Mich. Comp. Law Ann. §750.520c(West 2007)......1, 8

Mich. Comp. Law Ann. § 769.8(West 2007)............... 8

Mich. Comp. Law Ann. § 769.31(West 2007)........... 10

Mich. Comp. Law Ann. §769.34(West 2007)........ 9,10

Other Authorities

Black's Law Dictionary (7th ed.) ..................cccceeeees 7

Rules

Mich. Ct. R. 7.211

oi acninnscnswhantuicnrsunecnasotansadaceusmieinG tend 5

COUNTERSTATEMENT OF THE CASE

Following a jury trial, Petitioner was convicted

of one count of second degree criminal sexual conduct

and was acquitted on a second count. Mich. Comp.

Law Ann. §750.520c(1)(a)(West 2007); (Tr II, 412). He

was sentenced to eighteen months to fifteen years in

prison. (S Tr, 13).

The complainant [M.M], Petitioner’s eight-year-

old niece, testified she frequently spent the night with

her uncle [Petitioner] and aunt [Debra Kittka]. (Tr I,

105, 111, 128). The last time M.M. spent the night at

Petitioner’s house, she slept downstairs on the floor

and Petitioner slept behind her. (Tr I, 111). M.M.

woke up when she felt Petitioner’s hands where she

“goes pee.” (Tr 1,115). Petitioner touched M.M.’s bare

skin under her pajamas. (Tr I, 116). M.M. testified

that Petitioner touched her in this manner on more

than one occasion. (TrI, 121). When asked by defense

counsel if the touchings happened every time she spent

the night at Petitioner's house, M.M. responded,

“most”... “at the end when I kept spending the night.”

(Tr I, 137). M.M. said the inappropriate touchings did

not happen when she was five or six, but happened

almost every time she spent the night when she was

seven. (Tr J, 145).

Linda Miller [Miller], M.M.’s mother, testified

that her sister Debra is married to Petitioner. (Tr I,

Trl = Trial Transcript, January 30, 2006

Trill = Trial Transcript, January 31, 2006

Trill = Trial Transcript, February 1, 2006

STr = Sentencing Transcript, March 2, 2006

149). Approximately four times a year M.M. spent the

night, without her parents, at Petitioner’s house. (Tr I,

152). M.M. spent the night at Petitioner’s house on

January 14, 2005, but was apprehensive about doing

so. (Tr I, 155). A little over two weeks later, as Miller

was putting her daughter to bed, M.M. said she had

something to tell her mother but she was not sure if

she wanted to tell her. (Tr I, 155-156). M.M.

eventually told her mother what had happened with

Petitioner. (Tr 1, 157). M.M. was interviewed at Care

House. (TrI, 158). After the incident, M.M.’s behavior

changed and she was very down on herself and had

unexplained anger and fear. (Tr I, 162). M.M. told her

mother that the abuse occurred four or five times. (Tr

I, 178).

Novi Police Detective Mark Boody testified that

he was at M.M.’s Care House interview. (Tr I, 187).

Boody said the Care House interviewer, Amy Allen,

followed the correct protocol. (Tr I, 188). Boody said

that Allen did not ask any suggestive questions. (Tr I,

189).

Boody also interviewed Petitioner. Petitioner

told Boody he would not have intentionally done

anything to M.M. (Tr I, 206). Petitioner did not recall

putting his hands in M.M.’s underwear. (Tr I, 210).

Petitioner told Boody that what M.M. accused him of

was possible because he could not imagine her lying

and saying something like she did. (Tr I, 210).

Petitioner said if M.M. said something happened, it

must have happened, but he did not recall doing it. (Tr

I, 210). Petitioner told Boody that if the touching

happened while he was asleep, he must have touched

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M.M. because he thought she was his wife. (Tr I, 213).

Petitioner could not fathom intentionally touching

M.M. in an inappropriate manner. (Tr II, 234).

Petitioner never told Boody he thought M.M. was lying

about the assault. (Tr II, 241).

Petitioner’s wife, Debra Kittka, testified on his

behalf. (Tr II, 281). Debra said Petitioner’s reputation

in the community for truth and honesty was

exceptionally high. (Tr II, 282). On the night of the

alleged assault, M.M. wanted to sleep downstairs and

she asked Petitioner to sleep downstairs too. (Tr II,

292). Petitioner was asleep downstairs when Debra

went upstairs to check on M.M.’s sister. (Tr II, 296).

Debra went back downstairs and stayed there until

approximately 2:00 a.m. Debra eventually heard

Petitioner come to bed. (Tr II, 296). The next morning,

M.M. came upstairs and immediately jumped on

Petitioner’s lap. (Tr II, 300). Debra believed M.M.

required a lot of attention and had a tendency to lie.

(Tr ITI, 283, 300-301). Debra had spoken to her sister

about getting counseling for M.M. (Tr II, 300-301).

During sentencing, the prosecutor asserted that

the sentencing guidelines set forth in the presentence

investigation report were 19 to 35 months. (S Tr, 2).

The prosecutor indicated that both he and defense

counsel recognized that OV 9 should be scored at zero

points, which reduced the guideline range to 12 to 24

points. (S Tr, 2). Defense counsel indicated,

“(cjertainly I agree with that, your Honor.” (S Tr, 3).

Defense counsel later indicated, “I believe that the

guidelines now are 12 to 24 months. And it is a

straddle cell.” (S Tr, 7). Defense counsel requested a

jail sentence. (S Tr, 9). The prosecutor requested a 2

to 15 year sentence, but the trial court imposed an 18

month to 15 year sentence. (S Tr, 10, 13).

ARGUMENT

I. PETITIONER HAS NOT SHOWN

COMPELLING REASONS FOR REVIEW BECAUSE

THE QUESTION PRESENTED BY PETITIONER

WAS NEVER RAISED IN THE TRIAL COURT AND

WAS NOT DISCUSSED BY MICHIGAN’S HIGHEST

COURT AND THERE EXISTS NO CONTRADICTORY

AUTHORITY THAT MICHIGAN’S INDETERMINATE

SENTENCING SCHEME VIOLATES THE SIXTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION.

A. CERTIORARI REVIEW IS

UNWARRANTED BECAUSE THE MICHIGAN

COURT OF APPEALS HAD ADEQUATE AND

INDEPENDENT STATE LAW GROUNDS TO DENY

PETITIONER'S APPEAL AND ANY DISCUSSION OF

BLAKELY V. WASHINGTON, 542 U.S. 296 (2004)

WAS OBITER DICTUM.

This Court should deny the petition for writ of

certiorari because the highest court in Michigan, the

Michigan Supreme Court, did not address Petitioner’s

Blakely issue. (Sup. Ct. R. 10(b)). Moreover, the

Michigan Court of Appeals’ discussion of the Blakely

issue was obiter dictum because it was unnecessary to

the decision in the case since the Court held that

Petitioner’s failure to preserve his sentencing issue was

a “fatal flaw.” (Pet. App., 3a). Therefore, even if the

Blakely issue should ultimately be decided by this

Court, this is not the proper case to do so.

As the Michigan Court of Appeals found, the

parties agreed that the recommended guideline range

was 12 to 24 months. (Pet. App., 4a). In fact, the

prosecutor filed a sentencing memorandum outlining

that guideline range. Defense counsel’s sentencing

memorandum did not challenge the guideline range. (S

Tr, 9) At sentencing, the prosecutor recognized that

the probation department had improperly scored OV 9

at ten points. (S Tr, 3). Defense counsel and the

prosecutor agreed that OV 9 should not be scored and

that the guideline range should be 12 to 24 months, not

19 to 35 months. (S Tr, 3). Defense counsel indicated,

“{clertainly I agree with that, your Honor.” (S Tr, 3).

Trial defense counsel never disputed the scoring

of the sentencing guidelines and never challenged

Petitioner’s sentence on the basis of Blakely, supra. As

the judges of the Michigan Court of Appeals

recognized, Petitioner’s untimely motion to remand in

that court did not preserve the issue for appeal. (Pet.

App., 3a). See Mich. Ct. R. 7.211(C)(1)(a).

Under state law, Petitioner waived any error in

the scoring of the sentencing guidelines by specifically

conceding the validity of the guideline range. See

People v. Carter, 462 Mich. 206, 215; 612 N.W. 144

(2000). Admittedly, Petitioner did not specifically

waive his belated Blakely challenge during sentencing.

However, Petitioner only has a Blakely challenge

because of the alleged error in scoring OV 13.

Therefore, defense counsel’s articulated concession to

the OV score should also constitute a “fatal flaw” to

Defense counsel’s “Sentencing Memorandum and Request for

Deviation” was apparently given to the sentencing judge (S Tr, 9),

but was not filed.

Petitioners Blakely challenge. As this Court

recognized in Blakely, states may continue to utilize

judicial fact-finding as to sentence enhancement if

defendants consent to such judicial] fact-finding. Id. at

310. Petitioner implicitly consented to the use of

judicial fact-finding when he specifically agreed that

the guidelines had been properly scored.

The Michigan Court of Appeals was correct in

ruling that Petitioner’s procedural default was a “fatal

flaw” because defense counsel articulated that he had

no objection to the scoring of the sentencing guidelines

and because the motion to remand for resentencing

was untimely. (Pet. App., 3a). Although the Court also

discussed Blakely in its opinion, that discussion was

“obiter dictum.” Black's Law Dictionary (7th ed.),

defines “obiter dictum” as: “[a] judicial comment made

during the course of delivering a judicial opinion, but

one that is unnecessary to the decision in the case and

therefore not precedential ....” The Blakely analysis in

this case was obiter dictum because it was unnecessary

to the Court of Appeals’ decision. Therefore, this Court

should deny Petitioner’s petition for writ of certiorari

because the Michigan Court of Appeals had adequate

and independent state law grounds to deny his appeal.

For that reason, this Court need not review the merits

of the petition.

: a

B. PETITIONER HAS NO CONSTITUTIONAL

RIGHT TO AN INTERMEDIATE SANCTION AND

TRIAL JUDGES MAY ENGAGE IN JUDICIAL

FACTFINDING IN IMPOSING A MINIMUM

SENTENCE.

Even if this Court reviews the merits of the

petition, this Court should deny the petition for writ of

certiorari because Michigan’s indeterminate sentencing

scheme does not violate the Sixth Amendment to the

United States Constitution.

Under the Sixth and Fourteen Amendment,

“lojther 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.” Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). Therefore, the key

question here is whether or not the trial court used

judicial factfinding to increase Petitioner’s statutory

maximum, as that term is defined in Blakely, supra at

303 [the statutory maximum is the maximum sentence

a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the

defendant].

In Michigan, absolute maximum sentences are

governed by statute. Mich. Comp. Law Ann. §

769.8(1)(West 2007). The maximum sentence for

second degree criminal sexual conduct is fifteen years

in prison. Mich. Comp. Law Ann. §750.520c(1)(a)(West

2007). The fact that Michigan’s Legislative sentencing

guidelines allow for intermediate sentences for less

than the statutory maximum does not change the fact

-9.

that the statutory maximum for this crime is fifteen

years.

Michigan’s sentencing guidelines set a range for

a defendant’s mtnimum sentence. People v. McCuller,

479 Mich. 672, 684; 739 N.W.2d 563(2007). “A

defendant’s recommended minimum sentence range

under the guidelines is determined on the basis of the

defendant’s record of prior convictions (the PRV score),

the facts surrounding his crime (the OV score), and the

legislatively designated offense class.” People uv.

Harper, 479 Mich. 599, 616; 739 N.W.2d 523 (2007).

See also Mich. Comp. Law Ann. § 769.34(2)(West

2007). Asentencing court calculates PRVs and OVs to

determine ‘the recommended minimum sentence

range.” Harper, supra at 624, citing Mich. Comp. Law

Ann. §777.21(1)(West 2007). The statutory provision

concerning intermediate sanctions ts a matter of

legislative leniency permitting a defendant to be

incarcerated for a period of time less than that

authorized by the jury’s verdict. McCuller, supra at

694-695. Blakely does not entitle a defendant to a

sentence less than the one authorized by the verdict.

Harper, supra at 616.

Petitioner’s assertion that an intermediate

sanction constitutes the “maximum sentence” is wrong

as set forth in detail in McCuller, supra at 689-690:

Thus, a sentencing court does not violate

Blakely principles by engaging in judicial

fact-finding to score the OVs to calculate the

recommended minimum sentence range,

even when the scoring of the OVs places the

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defendant in a straddle cell or a cell

requiring a prison term instead of an

intermediate sanction cell. The sentencing

court’s factual findings do not elevate the

defendant’s maximum sentence, but merely

determine the defendant’s recommended

minimum sentence range, which may

consequently qualify the defendant for an

intermediate sanction.

Petitioner's guideline range constitutes a

“straddle cell” and not an “intermediate sanction cell.”

As set forth above, Michigan’s sentencing scheme

requires the sentencing court to impose the maximum

sentence required by statute and then the sentencing

court imposes a minimum sentence based upon the

scoring of the Sentencing Guidelines adopted by the

Legislature. Defense counsel conceded the scoring of

the guidelines resulting in a minimum sentence range

in a “straddle cell.” Under a straddle cell, the

sentencing court may sentence a defendant to either a

term of years in a state prison or to an intermediate

sanction including a period of time in a county jail.

Mich. Comp. Law Ann. §769.34(4)(c)(West 2007). In

comparison, under an intermediate cell, a defendant

can only be sentenced to a minimum sentence of a

period of incarceration in a county jail or to a number

of other intermediate sanctions. Mich. Comp. Law Ann.

§§ 769.31(b); 769.34(4)(a)(West 2007). The scoring of

the Sentencing Guidelines in this case did not result in

an intermediate cell. If this Court desires to review a

Michigan sentence involving an intermediate sanction

cell, Petitioner’s case is not an appropriate case for

such review.

Petitioner’s argument that a trial judge may

only eschew the intermediate sanction requirement on

the basis of facts proved to a jury beyond a reasonable

doubt is wrong because the guidelines only affect a

defendant’s minimum sentence and that minimum

sentence cannot be calculated without examining the

OV and PRV scores. The maximum sentence never

changes — it is the statutory maximum for the charged

crime. As recognized by the Michigan Supreme Court:

To determine a defendant's minimum

sentence range under the guidelines, the

sentencing court must first score the OVs

and the PRVs and consider the offense class.

MCL777.21. Thus, under MCL 769.34(4)(a),

a defendant does not even qualify for an

intermediate sanction until after the court

has scored all the sentencing variables,

including the OVs, and those variables

indicate that the upper limit of the

defendant’s minimum sentence range is 18

months or less. In other words, a defendant’s

qualification for an intermediate sanction is

contingent on the’ sentencing’ court’s

calculation of all the defendant’s sentencing

variables. A defendant has no legal right to

have his minimum sentence calculated using

only a portion of the statutorily enumerated

factors. [McCuller, supra at 689].

Because Petitioner has no legal right to an

intermediate sentence, judicial fact-finding may be

used to determine his minimum sentence. Blakely does

not mandate a different result.

C. THE TRIAL COURT DID NOT IMPOSE A

SENTENCE IN VIOLATION OF THE SIXTH

AMENDMENT.

Petitioner’s argument that the jury verdict

“entitled” him to an intermediate sanction is wrong.

The jury verdict only “entitled” Petitioner to a

maximum sentence of no more than fifteen years. “A

defendant has no legal right to expect any lesser

maximum sentence.” McCuller, supra at 689.’

Petitioner never gained a legal right to an intermediate

sanction. Id. at 690.

° The only distinction between McCuller, supra and the instant

case is the fact that there would be no “harmless error” argument

in this case if this Court concludes that the use of judicial

factfinding to score the offense variables is inappropriate. The

reason being, the jury in this case rejected one additional count of

second degree criminal sexual conduct.

Currently in Michigan, a sentencing court has discretion to

determine the scoring of offense variables, provided there is

evidence on the record to support a particular score. People v.

Hornsby, 251 Mich. App. 462, 468; 650 N.W.2d 700 (2002). The

sentencing court’s scoring should be upheld if there is any support

in the record for it. People v. Houston, 261 Mich. App. 463, 471;

683 N.W.2d 192 (2004), affd 473 Mich. 399 (2005). The burden of

proof for sentencing purposes is preponderance of the evidence.

People v. Walker, 428 Mich. 261, 267-268; 407 N.W.2d 367 (1987);

People v. Perez, 255 Mich. App. 703, 712-713; 662 N.W. 446 (2003),

vacated in part on other grounds 469 Mich. 415 (2003); People v.

Ratkov, 201 Mich. App. 123, 125-126; 505 N.W.2d 886 (1993),

remanded on other grounds 447 Mich. 984 (1994). The scoring of

the guidelines can be inconsistent with the result of the jury trial.

Perez, supra at 713; Ratkovu, supra at 126.

ids

Defendant’s eighteen-month minimum sentence

for the sexual assault of his niece was proper even

though it was based on judicial fact-finding. “This

Court’s Sixth Amendment cases do not automatically

forbid a sentencing court to take account of factual

matters not determined by a jury and to increase the

sentence in consequence.” Rita v. U.S., 127 S.Ct.

2456, 2465 (2007). Only facts that increase the penalty

for a crime beyond the statutory maximum must be

submitted to a jury and proved beyond a reasonable

doubt. Apprendi, supra at 490.

Michigan has an indeterminate sentencing

scheme, not a determinate sentencing scheme. People

v. Drohan, 475 Mich. 140, 160-161; 715 N.W.2d 228

(2006). An indeterminate sentencing scheme does not

suffer from the same constitutional infirmities as

determinate schemes. As set forth in Blakely, supra,

the State of Washington had a sentencing scheme in

which the court selected one [determinate] number for

a defendant’s sentence. Once the defendant started

serving the sentence, he could not be paroled. Justice

Scalia in Blakely, supra compared that scheme to an

indeterminate scheme:

[Indeterminate sentencing] increases judicial

discretion, to be sure, but not at the expense

of the jury’s traditional function of finding

the facts essential to lawful imposition of the

penalty. Of course, indeterminate schemes

involve judicial fact-finding, in that a judge

(like a parole board) may implicitly rule on

those facts he deems important to the exercise

of his sentencing discretion. But the facts do

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not pertain to whether the defendant has a

legal right to a lesser sentence--and that

makes all the difference insofar as judicial

impingement upon the traditional role of the

jury is concerned. In a system that says a

judge may punish burglary with 10 to 40

years, every burglar knows he is risking 40

years in jail. In a system that punishes

burglary with a 10-year sentence, with

another 30 added for use of a gun, the

burglar who enters a home unarmed is

entitled to no more than a 10-year sentence--

and by reason of the Sixth Amendment the

facts bearing upon that entitlement must be

found by a jury. (emphasis supplied)

In Blakely, supra, this Court cited with approval

its prior decisions in McMillan v. Pennsylvania, 477

U.S. 79 (1986) and Harris v. United States, 536 U.S.

545 (2002). In McMillan, supra, a Pennsylvania statute

required a sentencing court to impose a mandatory

minimum sentence of five years imprisonment for

certain enumerated felonies, if the sentencing court

found from a preponderance of the evidence that

the defendant committed the enumerated felony while

visibly possessing a firearm. This Court found that

such a mandatory minimum sentence based upon an

additional finding of fact by the sentencing court did

not deny the defendant of his Sixth Amendment right

to a jury trial. Each of the enumerated felonies in the

Pennsylvania statute carried a maximum sentence of

over five years. In upholding the constitutionality of

the Pennsylvania statute, this Court observed that the

statute did not increase the maximum sentence for

-14-

enumerated felonies, but rather only required the

imposition of a mandatory minimum five year

sentence. McMillan, supra 81-86. This Court also

recognized that preventing and dealing with crime was

much more the business of the states than it was the

federal government and this Court should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual states.

McMillan, supra at 85-86.

In Harris, supra, a federal statute permitted a

trial court to impose a mandatory minimum sentence

based upon an additional finding of fact. In affirming

the defendant’s sentence, this Court found no violation

of the principles set forth in Apprendi, supra, because

the statute in question did not permit the trial court to

increase the statutory maximum sentence. This Court

reasoned as follows:

McMillan and Apprendi are consistent

because there is a fundamental distinction

between the factual findings that were at

issue in those two cases. Apprendi said that

any fact extending the defendant’s sentence

beyond the maximum authorized by the

jury’s verdict would have been considered

an element of an aggravated crime — and

thus the domain of the jury — by those who

framed the Bill of Rights. The same cannot

be said of a fact increasing the mandatory

minimum (but not extending the sentence

beyond the statutory maximum), for the

jury’s verdict has authorized the judge to

impose the minimum with or without the

-16-

finding. As McMillan recognized, a statute

may reserve this type of factual finding for

the judge without violating the

Constitution.” (Harris, supra at 557}.

Unlike in Harris and McMillan, supra, this

Court’s decisions in Blakely and Cunningham v.

California, 549 U.S. (2007), involved sentencing

schemes which impacted the defendants’ maximum

sentences. Michigan, unlike Washington and

California, has an indeterminate sentencing scheme in

which the trial court must impose the statutory

maximum sentence for the offense committed. The

trial court must also impose a minimum sentence

within the range recommended by the Sentencing

Guidelines. The trial court cannot increase the

maximum sentence based upon any findings of fact not

proven to the jury, except for a prior felony conviction.

This Court in Blakely, supra, recognized that such an

indeterminate sentencing scheme under which the trial

court cannot increase the maximum sentence does not

deprive a defendant of his constitutional right to a trial

by jury. By its own language, the decision of this Court

in Blakely, has no _ effect upon Michigan’s

indeterminate sentencing scheme.

In Cunningham, supra, this Court held that

California’s determinate sentencing scheme which

permitted a trial court to make findings of fact and to

increase a defendant’s maximum sentence based upon

those facts violated the principles set forth in Blakely,

supra, and its progeny. In Cunningham, supra, the

defendant was tried and convicted by a jury of

continuous sexual abuse of a child under 14 years-old. .

ae J

Under California’s Determinate Sentencing Law

(DSL), the trial court was required to sentence the

defendant for that offense to a fixed, determinate

sentence of 12 years imprisonment. Under the DSL,

however, the trial court could and did hold a post-trial

sentencing hearing and, by a preponderance of the

evidence, found aggravating facts. Based upon finding

the aggravating facts, the DSL permitted the trial

court to increase the defendant’s fixed determinate

sentence from 12 years to 16 years imprisonment,

which the trial court did. This Court held that the

provision of the DSL which permitted the trial court to

increase the maximum statutory sentence based upon

its own finding of aggravating facts deprived the

defendant of his right to a jury trial pursuant to the

Sixth Amendment as to those facts. Cunningham,

supra at 870. This Court found that in all material

respects, California’s DSL was no different than the

determinate sentencing schemes involved in Blakely,

supra, and United States v. Booker, 543 U.S. 220

(2005). Cunningham, supra at 870. This Court

reiterated that the “statutory maximum sentence ’ for

Blakely purposes is the maximum sentence which a

trial court may impose on the basis of facts reflected in

the jury’s verdict or admitted by the defendant. Id. at

868.

* In Booker, supra, this Court struck down the portion of the

Federal Sentencing Guidelines mandating trial judges to sentence

without the guideline range. This Court recognized that if the

guidelines were merely advisory, they would not implicate the

Sixth Amendment. Booker, supra at 866-869.

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Significantly, this Court in Cunningham, supra,

also reiterated that indeterminate sentencing schemes

which permit a trial court to sentence within a range of

years, but not to increase a defendant’s maximum

sentence, do not run afoul of Blakely, supra. In

speaking to California’s possible remedies after

Cunningham, supra, this Court recognized that “other

states have permitted judges genuinely ‘to exercise

broad discretion...within a statutory range’, which

‘everyone agrees, encounters no Sixth Amendment

shoal.” Booker, 543 U.S. at 233.” (Footnote omitted).

(Cunningham, supra at 871).

This Court in Cunningham, supra at 871, also

quoted with approval the language in Booker, supra, in

which this Court “...never doubted the authority of a

judge to exercise broad discretion in imposing a

sentence within a statutory range.” This Court has

consistently held that indeterminate sentencing

schemes which permit a trial court to base a minimum

sentence upon facts not found by a jury are

constitutional, while determinate sentencing schemes

under which a trial court could increase the maximum

determinate sentence based upon facts not proven toa

jury run afoul of Blakely, supra.

In contrast to Cunningham, supra, the judge in

this case could only find facts in the scoring of the

Sentencing Guidelines which determined the range of

Petitioner’s minimum sentence. In Michigan, a trial

court may only increase a defendant's maximum

sentence based upon a defendant’s prior felony

convictions. Consequently, the Sixth Amendment

concerns addressed in Blakely and Cunningham simply

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do not exist in Michigan because the State does not

have a determinate sentencing scheme. Therefore, this

Court should deny the petition for writ of certiorari.

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CONCLUSION AND RELIEF

For all of these reasons, Respondent request that

the Petition for Writ of Certiorari be denied.

Dated: March 7, 2008

Respectfully submitted