Opposition Brief — Haskell v. Michigan (No. 06-137)

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FILED

(2) shia

No. 06-137 OFFICE OF IE CLERK

RT, U.S.

| In the

Supreme Court of the United States

CRAIG MICHAEL HASKELL,

Petitioner,

STATE OF MICHIGAN,

Respondent.

On Petition for a Writ of Certiorari to .

the Court of Appeals of Michigan

BRIEF IN OPPOSITION

WituiaM J. VaAILLIENCOURT, JR.

Counsel of Record

ASSISTANT PROSECUTING ATTORNEY

LIVINGSTON COUNTY

PROSECUTOR'S OFFICE

210 S. HIGHLANDER Way

Howe t, MI 48843

(517) 546-1850

Attorney for Respondent

September 22, 2006

Becker Gallagher Legal Publishing, Inc. 800.890.5001

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

I. Was Petitioner sentenced to a longer term of

imprisonment based on a claim of innocence?

I]. Does Michigan’s statute defining a “continuing pattern

of criminal behavior” violate due process?

Ill. | Where the statutory maximum sentence is not impacted

by the sentencing guidelines, does Michigan’s scheme of

indeterminate sentencing violate the Sixth Amendment?

IV. Does Michigan’s standard requiring an evidentiary

hearing on an ineffective assistance of counsel challenge only

where there is a disputed question of fact violate the

Constitution?

Counter-Statement of Questions Presented

Table of Contents

Reasons for Denying the Petition

il.

TABLE OF CONTENTS

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Petitioner was not subjected to a longer

sentence based on his claim of innocence at

sentencing. Petitioner conceded he showed no

remorse and never claimed that an assertion of

innocence cannot, as a matter of law, be

considered as evidence of a lack of remorse

The phrase “continuing pattern of criminal

behavior” is a term defined by the Michigan

Legislature. While Petitioner claimed at

sentencing that the statutory definition had not

been satisfied, Petitioner never challenged at

any stage of this proceeding that the statute

violates due process. Because the guideline

variable was scored for conduct resulting in

convictions, Petitioner fails to state a claim

under Blakely v Washington ...... Se a

Because the guidelines have no impact on the

statutory maximum sentence, Michigan’s

scheme of indeterminate sentencing does not

violate Blakely v. Washington. In any event,

Petitioner submitted to judicial factfinding .

. 16

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IV. Petitioner fails to allege or demonstrate how

Michigan’s standard for requiring an

evidentiary hearing on an ineffective assistance

of counsel challenge is the subject of dispute

among the lower courts or violates the

RE io cca ck Ww vila see 25

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Appendix

Appendix 1 - Michigan Supreme Court Opinion of

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Appendix 2 - Michigan Court of Appeals Order of

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Appendix 3 - Mich. Comp. Laws § 769.34 (2002) . . 3b —

\ TABLE OF AUTHORITIES

Cases

Blakely v. Washington,

542 U.S. 296, 124 S.Ct. 2531;

Nae Se CS) ow ee eee

Cunningham v California, No. 05-6551,

certiorari granted, 126 S.Ct. 1329 (2006) ....

Geraci v. Senkowski,

pe Be he OS ar ara

Geraci v. Senkowski,

23 F. Supp.2d 246 (E.D.N.Y. 1998) ......

Gomez v. Tennessee,

petition for certiorari filed August 15, 2005,

ag rk gh ig elke! Wn 4 8 Se be

Lopez v. State,

eR Gee EG ae: |. ee

McKune v. Lile,

536 U.S. 24: 122 S.Ct. 2017;

ee | ie) i area

McMillan v Pennsylvania,

477 U.S. 79; 106 S.Ct. 2411;

| ee a ae

Ohio v. Johnson,

467 U.S. 493; 104 S.Ct. 2536;

i ne

People v. Babcock,

469 Mich. 247; 666 N.W.2d 231 (2003) ........ 21

People v Black,

35 Cal.4th 1238; 113 P.3d 534 (2005) ......... 23

People v. Calabro,

166 Mich. App. 389; 419 N.W.2d 791 (1988) .... 8

People v. Conley, .

270 Mich. App. 301; 715 N.W.2d 377 (2006) .... 8

People v. Dowdy,

148 Mich. App. 517; 384 N.W.2d 820 (1986) .... 12

People v. Drohan,

475 Mich. 140; 715 N.W.2d 778 (2006),

petition for certiorari filed,

September 6, 2006, No. 06-6493 ............. 20

People v. Francisco,

474 Mich. 82; 711 N.W.2d 44 (2006) .......... 15

People v. Haskell,

474 Mich. 1118; 712 N.W.2d 448 (2006) ....... 5

People v. Haskell,

472 Mich. 913; 697 N.W.2d 152 (2005) ........ 5

People v. McCuller,

475 Mich. 176; 715 N.W.2d 798 (2006),

petition for certiorari filed,

September 11, 2006, No. 06-6468 ............ 20

People v. Powe,

469 Mich. 1032; 679 N.W.2d 67 (2004) ........ 18

People v. Wesley,

428 Mich. 708; 411 N.W.2d 159 (1987) ...... 8, Il

Smylie v. State,

eB Re eee eee 23

State v. Allen,

359 N.C. 425; G15 S.B.20 256 (2005) on eee 23

State v. Brown,

209 Ariz. 200; 99 P.3d 15 (2004) ............ 22

State v. Dilts,

337 Or. 645; 103 P.3d 95 (2004) .......%5..... 23

State v Gomez,

563 BS. WF Ge CHG. BOG) 6. ec kk ec eee see 24

State v. Imlay,

249 Mont. 82; 813 P.2d 979 (1991) ......... 9-10

State v. Kamana’o,

103 Hawaii 315; 82 P.3d 401 (2003) .......... 11

State v Maugaotega,

107 Hawaii 399; 114 P.3d 905 (2005) ..........24

State v. Natale,

184 N.J. 458; 878 A.2d 724 (2005) ........... 23

State v. Shattuck,

704 N.W.2d 131 (Minn. 2005) .............. 23

vii

State v. Shreves,

313 Mont. 262; 60 P.3d 991 (2002) ...........

United States v. Booker,

543 U.S. 220; 125 S.Ct. 738;

S00 1. Gas Cee kh ee ven eee

United States v. Laca,

499 F.2d G22 (Sta Cir. IST) ww cc ccc eee

United States v. Roe,

Gro F.26 S58 Ce Cel. Se ss ke he eee

United States v. Olano,

507 U.S. 725; 113 S.Ct. 1770;

ga eR fi.) a ener rr 18-19

United States v Watts,

519 U.S. 148; 117 S.Ct. 633;

EOP Lae ae Oe CAPO «6 ci Se ee eee es

United States v. Wright, pi

aoe eae Cee COO. THT no os oh oo hee nn

Wesley v. Michigan,

484 U.S. 967; 108 S.Ct. 459;

fe * ei. Boe eer ere fre ee Te

Williams v. Stewart,

441 F.3d 1030 (9th Cir. 2006),

petition for certiorari filed August 28, 2006,

Pe Oe 5 vei on eA ee oe eee ee

Statutes

Mich. Comp.

Mich.

Mich. Comp.

Comp.

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Mich. Comp. Laws § 777.39 .. 0.0... ew ewneees 21

Mich. Comp. Laws $777.40 .. 0. snc cccceces 21

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Mich. Comm. Lows § 777.42 .. 2. ccc cscccwsers 21

Mich. Comp. Laws § 777.43 See | lak 12, 21

Mich. Comp. Laws § 777.44 ...........-50008- 21

Mich. Comp. Laws § 777.49 .................. 21

Mich. Comp. Laws § 777.49a ..............--.- 21

Mich. Comp. Laws § 791.232 et seg ............. 18

Peeeeh. CD. LAW BTS .Ee nce vc cawdecenvees 20

N.C. Gen. Stat. § 1SA-1340.17(d), (e) (2003) ....... 23

Rules

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COUNTER-STATEMENT OF THE CASE

Petitioner’s statement of facts trivializes the violence of

the sexual assault on the victim.

Petitioner and the victim dated in high school over a two

year period. (186).' While attending different colleges, they

broke up in the fall of 2001. (187). Until May 2002, the

only contact between them was through online instant

messaging. (187). Late one Sunday night in May 2002,

Petitioner came over to see the victim and Petitioner said he

wanted to get back together. The victim did not wish to do

so, and described it as “a long, frustrating talk.” (188-189).

The night of Thursday, May 17, 2002, Petitioner went to the

victim’s house and they watched a movie. During the movie,

Petitioner started talking about killing himself. He cried and

said that he was going to call the victim’s dad and tell him

horrible things and do other things to try to get her to be close

to him. The victim told Peitioner that “he had to leave

because it was scary.” (192). Petitioner refused to leave and

continued saying mean things to the victim. (193).

Petitioner then told the victim that if she changed into her

pajamas, she would be more comfortable and then he would

leave. (193-194). While Petitioner went to the bathroom, the

victim went into her basement bedroom to change. (194).

Petitioner then came into her room, sat down on the bed, said

that he had made his “final decision,” and when she asked

him what that was, he punched her in the left eye with his fist

' Parenthetical references in this section are to page numbers

of volume I of the jury trial transcript. Page references to other

volumes of the transcript are prefaccd by the applicable roman

numeral.

with such force that he knocked her off the bed. She tried to

run for the door, but Petitioner jumped on top of her and hit

her in the head and slammed her head against a dresser. (196-

197). Petitioner then put his hands around her throat and

reached his hands down her throat, “like he was trying to

reach into my stomach.” (197). As he was on top of her,

Petitioner threatened to go upstairs and kill her family if she

made any sound. Petitioner told the victim that he wanted her

to put on her pajamas so it would be easier to have sex with

her “one more time” and that he was going to kill himself.

(197-198). She tried to get away, but Petitioner continued to

hit her so much that she became dizzy and could not see

straight. She laid down and Petitioner took off all her clothes

and touched her breasts and vaginal area. (198-199). He

lamented that she wouldn’t date him because he always loved

her, called her a “whore” and accused her of sleeping with

“every guy at school.” (199). Petitioner then penetrated her

digitally twice, forced sexual intercourse, and digitally

penetrated her again afterwards. (199-201). Petitioner then

grabbed a pair of scissors which had been lying on the bed.

He held them, but did not do anything with the scissors to the

victim. (202). Afterwards, Petitioner repeatedly said he was

sorry, and asked her to wait until the morning to tell «er

parents. (203-204).

A jury found Petitioner guilty but mentally ili of four

counts of first degree criminal sexual conduct,’ one count of

second degree criminal sexual conduct.’ and one count of

misdemeanor aggravated domestic violence. He was acquitted

> Contrary to Mich. Comp. Laws § 750.520b.

* Contrary to Mich. Comp. Laws § 750.520c.

of a charge of assault with a dangerous weapon alleging a

threat with the scissors. 3

At sentencing, the trial court scored guidelines as required

by Mich. Comp. Laws § 769.34.* Contrary to Petitioner’s

statement, the guidelines are not “enhancements” utilized to

“increase ... the sentence above the statutory minimum

prescribed by Michigan law.”° Rather, Michigan’s sentencing

scheme involves two parts to a sentence, a minimum and a

maximum. The minimum sentence is calculated using the

guidelines and results in a range of months within which the

court sets the minimum sentence. Under Michigan’s

sentencing guidelines, points are scored based on a

defendant’s prior criminal record (“prior record variables”)

and based on the facts of the offense (“offense variables”).

The resulting points for the prior record variables and the

offense variables are then applied to find a specific grid on a

table. The grid represents a period of time in months within

which the minimum sentence of an indeterminate sentence

should fall, absent a departure. Petitioner’s grid for the

minimum sentence was 108 to 180 months.° The court may

* The version of the statute in effect at the time of Petitioner’s

sentencing is contained in the Appendix and is the version to which

reference is made. It has been subsequently amended in a manner

not germane to this petition.

> Pet. at 6.

° First degree criminal sexual conduct is non-probationable.

Mich. Comp. Laws § 771.1(1). Although not relevant to

Petitioner’s claim, for those offenses which are probationable, the

guidelines provide that certain grids require an “intermediate

sanction” which includes probation, Mich. Comp. Laws

§ 769.31(b). Depending on the scoring of the guidelines, the grid

depart from the recommended minimum sentence range

upward or downward based on substantial and compelling

reasons. The maximum sentence is set by statute and the

court is required to impose that maximum. Mich. Comp.

Laws § 769.8(1). For example, the maximum sentence for

second degree criminal sexual conduct is fifteen years. Mich.

Comp: Laws § 750.520c(2). For an offense punishable by

life in prison, such as first degree criminal sexual conduct, the

maximum is a term of years set by the-court and is unaffected

by the guidelines.

During his sentencing, Petitioner disputed the factual basis

for the scoring of the offense variables but did not raise any

objection to judicial factfinding or to any other constitutional

deficiency to Michigan’s sentencing guidelines. On the four

counts of first degree criminal sexual conduct, the trial court

sentenced Petitioner to four concurrent terms in the Michigan

Department of Corrections for a minimum, within the

applicable guidelines grid, of twelve years (144 months) to a

maximum of thirty years. Pet. App. at 46-47. Petitioner was

also sentenced to a minimum term of ten years to a maximum

of fifteen years on the conviction for second degree criminal

sexual conduct.’ Id.

During the pendency of Petitioner’s appeal to the

Michigan Court of Appeals, Petitioner filed a motion pursuant

to Mich. Ct. R. 7.211(C) seeking a remand to the trial court

to conduct an evidentiary hearing regarding Petitioner’s

may be a cell for which a sentence can either be an intermediate

sanction or an indeterminate prison sentence. Mich. Comp. Laws

§ 769.34(4)(d).

” Under Michigan law, no guidelines were scored for the lesser

second degree criminal sexual conduct conviction.

allegations of ineffective assistance of counsel. By order

dated September 1, 2004, the Court of Appeals denied

Petitioner’s motion for “failure to persuade the Court of the

necessity of a remand at this time.” See App. at 2b. From

that order, Petitioner filed a timely application for leave to

appeal with the Michigan Supreme Court. On May 31, 2005,

the Michigan Supreme Court denied Petitioner’s application.

See People v. Haskell, 472 Mich. 913; 697 N.W.2d 152

(2005); App. at 1b. Petitioner never sought further review of

that issue.

The Court of Appeals subsequently affirmed Petitioner’s

conviction and sentence in an unpublished opinion. Pet. App.

at 1-16. The Michigan Supreme Court denied Petitioner’s

application for leave to appeal. People v. Haskell, 474 Mich.

1118; 712 N.W.2d 448 (2006); Pet. App. at 17.

REASONS FOR DENYING THE PETITION

I. Petitioner was not subjected to a longer sentence based

on his claim of innocence at sentencing. Petitioner

conceded he showed no remorse and never claimed that

an assertion of innocence cannot, as a matter of law, be

considered as evidence of a lack of remorse.

Petitioner frames the question presented very specifically:

can a court consider a defendant’s expression of innocence as

evidence of a lack of remorse. Petitioner, however, failed to

present that question to the intermediate state court of appeals

or the state supreme court. In the Jower courts, Petitioner

always framed the question as whether the trial court had

improperly held out the quid pro quo of a lower sentence in

exchange for a confession of guilt as prohibited by Michigan

law. See Defendant/Appellant’s Brief to the Michigan Court

of Appeals at 10. Accordingly, the question presented is

unpreserved. Petitioner’s failure to preserve the question has —

deprived this. Court of a close factual examination of the

sentencing proceeding by the lower courts to determine

whether the only evidence that existed to support the trial

court’s finding of a lack of remorse was Petitioner’s claim of

innocence, and if so, whether such a procedure would be a

violation of Petitioner’s state or federal constitutional

protections.

Petitioner’s allocution to the court was unequivocal in his

assertion of innocence, with no reference to his mental illness

or the injuries suffered by the victim, as he referenced Plato

and commented that truth and justice do not exist on Earth.

Pet. App. at 39. The court asked no questions of Petitioner

and made no initial comment about Petitioner’s allocution.

Instead, the trial court heard argument from the attorneys over

Petitioner’s motion to vacate some of the convictions. Pet.

App. a! 39-41. Only later, the trial court observed, “Now

you may protest your, your innocence but that’s a fact that

unless a higher Court sets aside this verdict somehow, it’s

something that somehow you are going to have to accept.”

Pet. App. at 42. When the court went on to tell Petitioner,

“It’s about you raping her,” Petitioner volunteered, almost

defiantly, “No it’s not.” Petitioner’s counsel explained

Petitioner’s attitude, clarifying at length that because of his

mental illness Petitioner did not believe himself capable of the

acts of sexual violence of which he was convicted. Pet. App. .

at 43-46.

The trial court expressed its concern over the absolute lack

of remorse in this case.® During trial, Petitioner argued that

* Even the probation officer commented on Petitioner’s lack of

remorse in the presentence report: “...while he stated he felt

“li}t was a domestic violence, domestic assault.” (Tr. Il at

233). Atsentencing, Petitioner’s counsel even acknowledged

that Petitioner had seen that the victim was physically

assaulted and that he had “obviously” known what he did to

the victim and that Petitioner could not deny the physical

assault. Pet. App. at 45. In the comext of his claim of

innocence, Petitioner demonstrated a lack of remorse by his

complete failure to even acknowledge his mental condition as

a mitigating factor or that the victim was even harmed.

Instead of expressing some remorse for his victim and her

plight, from Petitioner there was only defiance. _In fact, in

Petitioner’s appeal to the state court of appeals, Petitioner

conceded that he expressed no_ remorse. See

Defendant/Appellant’s Brief to the Michigan Court of Appeals

at 11. ,

Although Petitioner maintained his innocence, at no time

did the court try to get Petitioner to admit his guilt. In fact,

the court did not direct any questions whatsoever at

Petitioner, much Jess attempt to try to get him to confess.

There was no argument by the court or even an invitation by

the court for a response. Instead, Petitioner interrupted the

court while it was articulating its analysis of its sentencing

considerations. Even after being interrupted, the court did not

engage Petitioner or seek a response or a confession.

Furthermore, the court did not suggest in any way that the

sentence would have been less if Petitioner had confessed.

Petitioner claims that the court suggested it would impose a

lower sentence if Petitioner confessed based on the trial

court’s reference to a possible lesser sentence under an earlier

remorse, no true remorse was displayed.” Presentence Report at

2 (Evaluation and Plan).

plea agreement. Taken in context, the comment does not

suggest a quid pro quo of a lower sentence in exchange for a

confession, but rather reflects the trial court’s obvious

concern at the prospect of sentencing a young man to such a

lengthy prison term. Pet. App. at 41-43.

In this case, Petitioner is attempting to convert a common

and fact-intensive inquiry into a broad legal question worthy

of certiorari by suggesting that the Michigan courts are

applying a novel and unconstitutional standard. Michigan’s

standard is well-settled. Resentencing is required where a

trial court considers the defendant’s failure to admit guilt.

People v. Conley, 270 Mich. App. 301, 314; 715 N.W.2d

377 (2006). In order to determine whether a trial court has

sentenced a defendant based on his claim of innocence,

appellate courts review three factors: “(1) the defendant’s

maintenance of innocence after conviction, (2) the judge’s

attempt to get the defendant to admit guilt, and (3) the

appearance that had the defendant affirmatively admitted guilt,

his sentence would not have been so severe.” People v.

Wesley, 428 Mich. 708, 713; 411 N.W.2d 159 (1987).°? But,

lack of remorse is clearly an appropriate consideration for

sentencing. /d. at 711. When presented with the opportunity

to directly review Wesley, this Court denied the petition for

certiorari. Wesley-v. Michigan, 484 U.S. 967; 108 S.Ct. 459;

98 L.Ed.2d 399 (1987). -

Contrary to Petitioner’s claim, the Michigan standard is

consistent with how other courts treat a claim of innocence at

*® Although this test was articulated in a plurality opinion, it has

been followed by the intermediate court of appeals. See, e.g.,

People v. Calabro, 166 Mich. App. 389, 394-395; 419 N.W.2d

791 (1988).

sentencing. The “flat out split among the courts in this

country” claimed by Petitioner simply does not exist. The

cases cited by Petitioner illustrate this point. In United States

v. Wright, 533 F.2d 214 (Sth Cir. 1976), the court of appeals

vacated a sentence based on comments by the trial judge that

established that the defendant was being punished for having

a trial. Nothing in that case involved whether a claim of

innocence was used as evidence of a lack of remorse. In

United States v. Roe, 670 F.2d 956 (11th Cir. 1982), -whiie

nothing in that case addressed a claim of innocence being

considered as evidence of a lack of remorse, the statement

quoted by Petitioner from that case,'° “that a ‘[s]entencing

court may not present the defendant with a choice between

admitting his guilt and enduring a harsher sentence for failing

to do so,”” is an accurate restatement of Michigan law. In

United States v. Laca, 499 F.2d 922 (Sth Cir. 1974), the trial

court imposed a greater sentence because the defendants failed

to confess. Again, nothing in the opinion discusses a lack of

remorse. Citing Geraci v. Senkowski, 211 F.3d 6 (2d Cir.

2000), Petitioner suggests that the Second Circuit differs from

Michigan. Yet the lower court, which was affirmed by the

Second Circuit, explicitly stated, “A sentencing judge may

properly consider a defendant’s remorse, or lack thereof, in

determining a defendant’s sentence. Doing so does not

infringe a defendant’s Fifth Amendment rights.” Geraci v.

Senkowski, 23 F. Supp.2d 246, 266-268 (E.D.N.Y. 1998).

Again, this is a simple restatement of the same standard

followed in Michigan.

Even the opinion of the Montana Supreme Court, cited by

Petitioner as evidence of a conflict among the lower courts,

does not go as far as Petitioner asserts. In State v. Imlay, 249

0 Pet. at 8-9.

Mont. 82; 813 P.2d 979 (1991), the Montana Supreme Court

held that it was improper to revoke a defendant’s suspended

sentence based solely on a refusal to admit guilt. Remorse, or

the lack thereof, was not an issue in that case. In fact,

Montana acknowledged Michigan’s standard in State v.

Shreves, 313 Mont. 262; 60 P.3d 991 (2002), that “a court

may consider lack of remorse as basis for a sentence, but may

not punish a defendant for refusing to admit guilt.” /d. at

260, citing Wesley. Acknowledging that it was difficult to —

distinguish between punishing a defendant for remaining silent

and failing to show remorse, the Montana Supreme Court

concluded it was unable to make such a distinction in the case

before it. /d. Accordingly, the court held as a matter of

both federal and state constitutional law, that a sentencing

court could not draw an inference of a lack of remorse from

a defendant’s silence at sentencing where he has maintained

innocence. /d. at 260-261. That Montana has chosen, as a

matter of construing its own state constitution, to construe the

state protection against self incrimination broader than other

states and federal courts construing the Fifth Amendment does

not create a conflict making the issue worthy of certiorari.

In an attempt to create a conflict where none exists,

Petitioner claims that Michigan permits a court to enhance a

sentence based on a defendant’s claim of innocence as the

Ninth Circuit apparently does, citing Williams v. Stewart, 441

F.3d 1030 (9th Cir. 2006). But Michigan law permits no

such thing. To the extent that the Ninth Circuit may do so, if

the Court wishes to address the issue, then perhaps the Court

might grant the petition in that case. See Williams v. Stewart,

No. 06-6249 (petition for certiorari filed August 28, 2006).

Even if the Ninth Circuit permits consideration of a claim of

innocence at sentencing, that presents no reason to review

Michigan’s stricter standard.

Almost unii - ~ iy, courts are precluded from enhancing a

sentence based on a defendant’s claim of innocence and

Michigan’s rule is consistent with that principle. But a

defendant’s lack of remorse is a proper sentencing factor and

is directly related to a defendant’s capacity for rehabilitation.’

While there sometimes can be a fine line between taking into

account a lack of remorse and punishing a defendant for

claiming innocence, the trial court did not cross that line here.

See, e.g., State v. Kamana’o, 103 Hawaii 315, 321; 82 P.3d

401 (2003)(there is a “subtle, yet meaningful, distinction

between imposing a harsher sentence upon a defendant based

on his or her lack of remorse, on the one hand, and punishing

a defendant for his or her refusal to admit guilt, on the

other.”) In this case, the state court followed a common rule

of law. At best, Petitioner can only claim a misapplication of

a properly stated rule of law. In any event, Petitioner’s case

is fact intensive, unremarkable, and fails to present the issue

that Petitioner now seeks to assert for the first time.

'' Although the trial court in this case never specifically

articulated its concern that the lack of remorse reflected poorly on

Petitioner's potential for rehabilitation, the connection is acommon

sense one, well-known among the legal community, especially for

sex offenders. See, e.g. McKune v. Lile, 536 U.S. 24, 32-34; 122

S.Ct. 2017; 153 L.Ed.2d 47 (2002)(acceptance of responsibility is

an important component of rehabilitation and reducing recidivism);

Wesley, 428 Mich. at 715-716.

II. The phrase “continuing pattern of criminal behavior”

is a term defined by the Michigan Legislature. While

Petitioner claimed at sentencing that the statutory

definition had not been satisfied, Petitioner never

challenged at any stage of this proceeding that the

statute violates due process. Because the guideline

variable was scored for conduct resulting in

convictions, Petitioner fails to state a claim under

Blakely v Washington.

For the first time, Petitioner claims that Mich. Comp.

Laws § 777.43 violates due process.’ At the time of

Petitioner’s crime, the statute provided:

(1) Offense variable 13 is continuing pattern of

criminal behavior. Score offense variable 13 by

determining which of the following apply and by

assigning the number of points attributable to the one

that has the highest number of points:

(a) The offense was part of a pattern of felonious

criminal activity involving 3 or more sexual

2 Petitioner suggests in a footnote that this could also present

a violation of the multiple punishment prong of the double jeopardy

clause. Pet. at 14. But the double jeopardy clause does not act as

a restraint on the legislature from permitting the separate

punishment for multiple acts in the same transaction. Ohio v.

Johnson, 467 U.S. 493, 499; 104 S.Ct. 2536; 81 L.Ed.2d 425

(1984). In this case, Petitioner sexually penetrated the victim twice

digitally, forced sexual intercourse, and then digitally penetrated her

again afterwards. (199-201). Each of these four penetrations

resulted in a separate conviction as permitted by Michigan law.

People v. Dowdy, 148 Mich. App. 517, 521; 384 N.W.2d 820

(1986).

penetrations against a person or persons less than 13

years of age. 50 points

(b) The offense was part of a pattern of felonious

criminal activity involving 3 or more crimes against a

person. 25 points

criminal activity involving a combination of 3 or more

crimes against a person or property. 10 points

(d) The offense was part of a pattern of felonious

criminal activity directly related to membership in an

organized criminal group. 10 points

(e) The offense was part of a pattern of felonious

criminal activity involving 3 or more crimes against

property. 5 points

(f) No pattern of felonious criminal activity existed. 0

points

(2) All of the following apply to scoring offense

variable 13:

(a) For determining the appropriate points under this

variable, all crimes within a 5-year period, including

the sentencing offense, shall be counted regardless of

whether the offense resulted in a conviction.

(b) The presence or absence of multiple offenders, the

age of the offenders, or the degree of sophistication of

the organized criminal group is not as important as the

fact of the group’s existence, which may be reasonably

inferred from the facts surrounding the sentencing

offense.

(c} Except for offenses related to membership in an

organized criminal group, do not score conduct scored

in offense variable 11 or 12.

(d) Score 50 points only if the sentencing offense is

first degree criminal sexual conduct.

At sentencing, Petitioner objected to the scoring of offense

variable thirteen. His objection was specific: “I believe there

is no pattern of felonious, criminal activities. I believe that

there was only the two acts, not the three acts, one being the

Criminal Sexual Conduct and the other act being the

Domestic Violence. Therefore I would object to the scoring

of that at twenty-five.” Pet. App. at 28. In response, the

prosecutor pointed out that Petitioner was convicted of four

separate criminal sexual penetrations. Pet. App. at 28-29.

No objection was made that the variable was so arbitrary or

rare that it violated due process nor that the scoring of the

variable improperly deprived Petitioner of his right to a jury

determination of the issue. In addition, no such objection was

made in Petitioner’s appeal to the intermediate court of

appeals or the Michigan Supreme Court. The only issue

raised regarding offense variable thirteen on appeal was that

the trial court had committed an error in its construction of

the Michigan statute. See Defendant/Appellant’s Brief to the

Michigan Court of Appeals at 13-16; Defendant/Appellant’s

Corrected Application for Leave to Appeal to the Michigan

Supreme Court at 8-9. No due process violation or error

under Blakely v. Washington, 542 U.S. 296; 124 S.Ct. 2531;

159 L.Ed.2d 403 (2004) was alleged. Accordingly, those

claims are unpreserved.

Petitioner claims this unpreserved objection is worthy of

certiorari based on a conflict among the courts as to what

constitutes a “continuing pattern of criminal activity.” Pet. at

13. But Petitioner fails to appreciate that the term is a defined

one under state law. While subsection | describes the

variable as “continuing pattern of criminal behavior,”

subsection 2 requires that “all crimes within a 5-year period,

including the sentencing offense, shall be counted.” As

construed by the Michigan Supreme Court, the phrase is a

defined term. People v. Francisco, 474 Mich. 82, 87; 711

N.W.2d 44 (2006)(“MCL 777.43(2)(a) defines a “pattern” as

three or more crimes committed “within a five-year period,

including the sentencing offense....”) Petitioner, however,

confuses this defined term under Michigan law with the

undefined one open to judicial construction used in other

jurisdictions. Petitioner does nothing to demonstrate that the

Michigan statute offends due process other than say so.

Finally, in an attempt to implicate Blakely, Petitioner

claims a violation of the Sixth Amendment arising *“om the

supposed lack of a jury determination as to whether there was

a continuing pattern of criminai activity. Aside from the

inapplicability of Blakely to Michigan’s scheme of

indeterminate sentencing,'’ as well as the complete lack of any

preservation of the issue in the courts below, Petitioner

enjoyed a jury determination as to whether he had committed

three or more crimes against a person. In this case, the jury

found Petitioner guilty of four separate counts of first degree

criminal sexual conduct on which the scoring of offense

variable thirteen was based.

Petitioner has failed to demonstrate that the choice of the

'* As discussed infra, part III.

Michigan Legislature in its definition of a continuing pattern

of criminal behavior violates due process. The issue is not

worthy of certiorari.

Ill. Because the guidelines have no impact on the

statutory maximum sentence, Michigan’s scheme of

indeterminate sentencing does not violate Blakely v.

Washington. In any event, Petitioner submitted to

judicial factfinding.

Petitioner displays a fundamental misunderstanding of

Michigan’s indeterminate sentencing scheme. Contrary to

Petitioner’s claim,'* the iegislature does not prescribe a

minimum sentence which is then increased based on judicially

found facts. To the contrary, a sentence in Michigan includes

both a minimum and maximum term. The maximum sentence

is set by statute and the court is required to impose that

maximum. Mich. Comp. Laws § 769.8(1).'° In cases where

the crime is punishable by life imprisonment, which includes

'* Pet. at 16, 20.

'S The statute provides: “When a person is convicted for the

first time for committing a felony and the punishment prescribed by

law for that offense may be imprisonment in a state prison, the

court imposing sentence shall not fix a definite term of

imprisonment, but shall fix a minimum term, except as otherwise

provided in this chapter. The maximum penalty provided by law

shall be the maximum sentence in all cases except as provided in

this chapter and shall be stated by the judge in imposing the

sentence.”

first degree criminal sexual conduct,"® the court has complete

discretion over the maximum sentence:

In all cases where the maximum sentence in the

discretion of the court may be ir prisonment for life or

any number or term of years, the court may impose a

sentence for life or may impose a sentence for any

term of years. If the sentence imposed by the court is

for any term of years, the court shall fix both the

minimum and the maximum of that sentence in terms

of years or fraction thereof, and sentences so imposed

shall be considered indeterminate sentences. The court

shall not impose a sentence in which the maximum

penalty is life imprisonment with a2 minimum for a

term of years included in the same sentence.

Mich. Comp. Laws § 769.9(2).'’ The minimum, however, is

set by the court and must be within a sentence range

prescribed by the sentencing guidelines. Mich. Comp. Laws

§ 769.34(2).'* But the minimum sentence does not mean that

'© Mich. Comp. Laws § 750.520b(2)(“Criminal sexual conduct

in the first degree is a felony punishable by imprisonment in the

state prison for life or any term of years.”)

'’ There appear to be no Michigan cases challenging the

maximum of an indeterminate sentence. Accordingly, not only are

the guidelines irrelevant to the maximum sentence as a matter of

law, as a matter of practice, the trial court’s discretion in choosing

a maximum sentence is virtually unreviewable.

'® While Mich. Comp. Laws § 769.34(2)(b) provides that the

longest a minimum sentence may be is two-thirds of the maximum

(“The court shall not impose a minimum sentence, including a

departure, that exceeds 2/3 of the statutory maximum sentence. ”),

a prisoner is released once that minimum is served. It only

means that a prisoner is eligible for consideration by the

parole board for release. See Mich. Comp. Laws § 791.232

et seq. But thousands of prisoners serve sentences well

beyond their minimums and many serve their maximum

sentences. '?

As a preliminary matter, Petitioner failed to preserve this

claim at sentencing. At sentencing, Petitioner objected to the

scoring of four offense variables. Although Blakely had not

been decided at the time of his sentencing, at no time did

Petitioner claim, as a basis for his objections, that it was

improper to score the guidelines based on judicial findings of

fact. To the contrary, Petitioner submitted himself to judicial

factfinding and was an active participant in the process. Pet.

App. at 24-29. By his conduct, Petitioner consented to

judicial factfinding.”” Petitioner has thus waived any Blakely

claim. Accordingly, there is no error to review. United

States v. Olano, 507 U.S. 725, 732-733; 113 S.Ct. 1770;

that restriction does not apply to life offenses. People v. Powe,

469 Mich. 1032; 679 N.W.2d 67 (2004). Petitioner was convicted

of four life offenses.

' According to the Michigan Department of Corrections

Office of Research and Planning, in 2005, 15.8% of prisoners

released were discharged on their maximum sentence. Of the total

prisoner population in 2005, 34.4% were serving sentences beyond

their earliest release date and of that group, 76% had not been

paroled (the remaining 24% were parolees returned to prison as

violators).

0 Blakely, 542 U.S. at 310 (States may continue judicial

factfinding if defendant consents).

123 L.Ed.2d 508 (1993)(“ Deviation from a legal rule is error

unless the rule has been waived.”).

Aside from Petitioner’s waiver of any apparent Blakely

protections, this Court’s statements in Blakely make it clear

that it does not apply to indeterminate sentencing schemes:

Indeterminate sentencing does not [infringe on the

province of the jury]. It 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 factfinding, 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 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 the 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.

Blakely, 542 U.S. at 309. In this case, every rapist in

Michigan who commits first degree criminal sexual conduct

knows he is risking the rest of his life in prison. Petitioner’s

jury made all the findings necessary for a sentencing court to

impose a maximum sentence of any term of years. While the

application of the sentencing guidelines sets the minimum

sentence a defendant must serve before the parole board can

consider whether to grant parole or not under Mich. Comp.

Law § 791.234(1),”' that minimum sentence does not dictate

when a defendant will be released. Unlike the Washington

scheme of determinate sentencing in Blakely, release in

Michigan occurs only through the parole board, unconstrained

by Blakely, or upon the expiration of the maximum sentence.

See People v. Drohan, 475 Mich. 140; 715 N.W.2d 778

(2006)(holding that Blakely does not apply to Michigan’s

scheme of indeterminate sentencing), petition for certiorari

filed, September 6, 2006, No. 06-6493. See also People v.

McCuller, 475 Mich. 176; 715 N.W.2d 798 (2006), petition

for certiorari filed, September 11, 2006, No. 06-6468.

Michigan’s sentencing guidelines are more analogous to

the scheme approved by this Court in McMillan v

Pennsylvania, 477 U-S. 79; 106 S.Ct. 2411; 91 L.Ed.2d 67

(1986). In McMillan, Pennsylvania provided that a

mandatory minimum sentence of five years must be imposed

if the sentencing judge found during sentencing that a firearm

was visibly possessed during the commission of the offense.

The maximum term of the indeterminate sentence, however,

was not increased. /d. at 81-83. This Court affirmed the

statutory scheme finding that “[i]t simply took one factor that

has always been considered by sentencing courts to bear on

punishment ... and dictated the precise weight to be given that

factor.” Jd. at 89-90. In Blakely, this Court explicitly

distinguished McMillan observing that it “involved a

sentencing scheme that imposed a statutory minimum if a

*" Decisions not to grant parole are unreviewable. Morales v.

Michigan Parole Board, 260 Mich. App. 29, 35-36; 676 N.W.2d

221 (2004); Mich. Comp. Laws § 791.234; Mich. Ct. R.

7.104(D).

judge found a particular fact.” Blakely, 542 U.S. at 304

(emphasis in original). Unlike Blakely, the Pennsylvania

scheme did “not authorize a sentence in excess of that

otherwise allowed for [the underlying] offense.” /d., citing

McMillan. This is no different than what Michigan does with

its sentencing guidelines. The guidelines simply take factors

arising from the facts of the offense, a traditional sentencing

consideration, and assigns a certain weight to be given those

factors.” In fact, the guidelines are not even the exclusive

factors for the court to consider in determining the minimum

term of an indeterminate sentence. If the sentencing court

finds that certain factors are not covered by the guidelines, or

are given inadequate weight, so long as those factors are

objective and verifiable, the sentencing court is free to depart

upwards or downwards. Mich. Comp. Laws § 769.34(3)(b);

People v. Babcock, 469 Mich. 247; 271-274; 666 N.W.2d

231 (2003)(appendix prepared by Michigan Supreme Court to

'% The following offense variables are required by Mich.

Comp. Laws § 777.22(1) to be scored for first degree criminal

sexual conduct: aggravated use of a weapon, Mich. Comp. Laws

§ 777.31; lethal potential of weapon possessed or used, Mich.

Comp. Laws § 777.32; degree of physical injury to a person,

Mich. Comp. Laws § 777.33; degree of psychological injury to a

victim, Mich. Comp. Laws § 777.34; aggravated physical abuse,

Mich. Comp. Laws § 777.37; victim asportation or captivity,

Mich. Comp. Laws § 777.38; number of victims, Mich. Comp.

Laws § 777.39; exploitation of a vulnerable .ictim, Mich. Comp.

Laws § 777.40; criminal sexual penetrats.». Mich. Comp. Laws

§ 777.41; contemporaneous felonious °rimiual acts, Mich. Comp.

Laws § 777.42; continuing pattern ¢. .riminal behavior, Mich.

Comp. Laws § 777.43; offender’s re’e, Mich. Comp. Laws

§ 777.44; threat to security or interference with the administration

of justice, Mich. Comp. Laws § 777.49; and terrorism, Mich.

Comp. Laws § 777.49a.

assist the bench and bar in carrying out their responsibilities

under Michigan’s sentencing guidelines).

As part of his Blakely challenge, Petitioner suggests that

the error in Michigan’s system is that the trial court was

permitted to score the guidelines in apparent disregard of

Petitioner’s acquittal for assault with a dangereus weapon.

But Petitioner does not challenge or question this Court’s

decision in United States v Watts, 519 U.S. 148; 117 S.Ct.

633; 136 L.Ed.2d 554 (1997) that a sentencing court may

consider conduct for which a defendant has been acquitted.

In any event, assuming a lack of merit to any Blakely

challenge, Petitioner’s acquittal of using a weapon to assault

the victim” was not a finding that Petitioner did not possess

a weapon. Under the guidelines, points could be. scored

where Petitioner simply “possessed ... a ... cutting or

stabbing weapon.” Mich. Comp. Laws § 777.32(1)(emphasis

added). A conviction under the statute requires actual use of

a weapon to threaten someone; scoring under the guidelines

is sufficient if there is mere possession of a weapon.

Finally, in an attempt to make this case appear worthy of

certiorari, Petitioner claims a conflict among the lower courts

reviewing sentencing systems he claims are like Michigan’s.”

But none of those states have sentencing systems like

Michigan. Six of the seven States cited by Petitioner” involve

determinate sentencing schemes that differ dramatically from

the Michigan scheme of indeterminate sentencing. State v.

Brown, 209 Ariz. 200; 99 P.3d 15, 18 (2004)(defendant given

3 Contrary to Mich. Comp. Laws § 750.82(1).

4 Pet. at 19.

>> Pet. at 19.

a determinate sentence); Lopez v. State, 113 P.3d 713, 723-

725 (Colo. 2005)(determinate sentencing scheme in Colorado

was not invalidated by Blakely because court can only

aggravate a sentence based on facts found by a jury, facts

admitted by a defendant, facts found after defendant consents

to judicial factfinding, or facts regarding prior convictions);

Smylie v. State, 823 N.E.2d 679, 682-685 (Ind.

2005)(departure from fixed presumptive sentence based on

judicial factfinding violates Blakely); State v. Shattuck, 704

N.W.2d 131 (Minn. 2005)(determinate sentencing scheme

violates Blakely where departures from presumptive sentence

permitted based on judicial factfinding); State v. Natale, 184

N.J. 458, 483-484; 878 A.2d 724 (2005)(departing from fixed

presumptive sentence based on judicial factfinding violates

Blakely); State v. Dilts, 337 Or. 645, 649-652; 103 P.3d 95,

99 (2004)(upward departure from determinate sentence

violates Blakely). While the seventh state, North Carolina,

provides for indeterminate sentencing, both the minimum and

maximum sentence is determined by judicial factfinding

pursuant to the North Carolina guidelines, N.C. Gen. Stat.

1SA-1340.17 (d),(e)(2003). State v. Allen, 359 N.C. 425;

615 S.E.2d 256, 264-265 (2005)(increase over presumptive

minimum and maximum sentence based on judicial factfinding

violates Blakely). Unlike North Carolina, in Michigan the

maximum sentence is unaffected by the guidelines.

Petitioner further identifies three States which he claims

permit judicial factfinding and thus create a conflict that this

Court must resolve. But none-of those schemes are similar to

Michigan’s indeterminate sentencing system. While

California has adopted a determinate sentencing system, it

claims that it does not violate Blakely. People v Black, 35

Cal.4th 1238; 113 P.3d 534 (2005). That issue, however, is

the subject of Cunningham v California, No. 05-6551,

certiorari granted, 126 S.Ct. 1329 (2006). Even Petitioner

concedes that Cunningham has no impact on whether

Michigan’s indeterminate sentencing scheme violates Blakely.

Pet. at 20. Nor do the sentencing systems in the two other

States identified by Petitioner bear any relationship to

Michigan’s system. In State v Maugaotega, 107 Hawaii 399,

407-410; 114 P.3d 905 (2005), the Supreme Court of Hawaii

rejected a challenge to a sentence under Hawaii’s sentencing

structure based on Blakely because its guidelines were not

mandatory.”° In State v Gomez, 163 S.W.3d 632 (Tenn.

2005), the Tennessee Supreme Court found that Tennessee’s

determinate sentencing scheme does not violate Blakely

despite the fact that an increase in a presumptive sentence can

be based on judicial factfinding. But that finding does nothing

to call into question Michigan’s indeterminate sentencing

system, nor does it create any conflict over how Michigan’s

sentencing guidelines operate. To the extent Gomez raises

questions under Blakely, then this Court can consider those

questions in the context of that case. Gomez v. Tennessee,

No. 05-296 (petition for certiorari filed August 15, 2005).

Given Petitioner’s submission to judicia! factfinding and

Blakely’s recognition that indeterminate sentencing schemes

do not violate the Sixth Amendment right to jury trial, the

petition should be denied.

6 Judicial findings of non-binding, advisory enhancement facts

do not violate Blakely. United States v. Booker, 543 U.S. 220,

245-246; 125 S.Ct. 738; 160 L.Ed. 621 (2005)(federal sentencing

guidelines rendered advisory to comply with Blakely).

IV. Petitioner fails to allege or demonstrate how

Michigan’s standard for requiring an evidentiary

hearing on an ineffective assistance of counsel

challenge is the subject of dispute among the lower

courts or violates the Constitution.

While his appeal was pending in the Michigan Court of

Appeals, Petitioner filed a motion to remand to the trial court

to conduct an evidentiary hearing on Pe:“ioner’s claim of

ineffective assistance of counsel. The court of appeals denied

the motion, finding that Petitioner had failed to persuade the

court of a necessity of a remand at that time as required by

Mich. Ct. R. 7.211(C)(a).”” App at 2b. Petitioner then

sought interlocutory review by the Michigan Supreme Court

which was denied. App. at 1b. After the Michigan Court of

Appeals issued its opinion, Petitioner then sought review by

the Michigan Supreme Court. But nowhere in his application

te that court did Petitioner ever allege any error by the court

of appeals in denying his motion to remand to conduct an

evidentiary hearing. Accordingly, Petitioner’s claim is not

preserved for review by this Court.

Michigan requires that an evidentiary hearing on an

allegation of ineffective assistance be conducted whenever

there is a factual dispute. People v. Ginther, 390 Mich. 436;

7 Mich. Ct. R. 7.211(C)(1)(a)(ii) provides: “Within the time

provided for filing the appellant’s brief, the appellant may move to

remand to the trial court. The motion must identify an issue sought.

to be reviewed on appeal and show: (i) that the issue is one that is

of record and that must be initially decided by the trial court; or (ii)

that development of a factual record is required for appellate

consideration of the issue. A motion under this subrule must be

supported by affidavit or offer of proof regarding the facts to be

established at a hearing.”

212 N.W.2d 922 (1973).* Contrary to his claim, Petitioner

presents no cases which suggest or illustrate “significant

confusion” in the lower courts regarding the legal standard

which must be satisfied to trigger an evidentiary hearing.

Petitioner further fails to allege, much less demonstrate, that

the standard followed by Michigan differs from any other

jurisdiction, how that standard violates the Constitution, or

what standard should have been applied. The court of appeals

found that even assuming Petitioner’s factual allegations to be

true he failed to demonstrate prejudice as required by

Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80

L.Ed.2d 674 (1984). Accordingly, the court properly refused

to require an evidentiary hearing to be held. At best,

Petitioner can only claim a misapplication of a properly stated

rule of law. Certiorari is not warranted.

The standard can best be analogized to the central question

under Fed. R. Civ P. 56(c): whether there is a genuine issue of

material fact.

RELIEF REQUESTED

For the foregoing reasons, the People of the State of

Michigan request that the Court deny the petition for writ of

certiorari.

Respectfully submitted,

LIVINGSTON COUNTY

PROSECUTING ATTORNEY

William J. Vailliencourt, Jr.

Counsel of Record

Assistant Prosecuting Attorney

Livingston County Prosecutor’s Office

210 S. Highlander Way

Howell, Michigan 48843

(517) 546-1850

Attorney for Respondent

APPENDIX 1

SUPREME COURT OF MICHIGAN

SC: 127184

[Filed May 31, 2005]

PEOPLE OF THE STATE OF MICHIGAN, _)

Plaintiff-Appellee, )

: )

V )

)

CRAIG MICHAEL HASKELL, )

Defendant-Appellant. )

POET E SM eth am )

On Appeal From

COA: 251929

Livingston CC: 02-013073

OPINION

On order of the Court, the application for leave to appeal

the September 1, 2004 order of the Court of Appeals is

considered, and it is DENIED, because we are not persuaded

that the question presented should be reviewed by this Court.

COURT OF APPEALS, STATE OF MICHIGAN

Docket No. 251929

[Filed September 1, 2004]

’ PEOPLE OF THE STATE OF MICHIGAN, )

Plaintiff-Appellee, )

)

V )

)

CRAIG MICHAEL HASKELL, )

Defendant-Appellant. )

)

Janet T. Neff, Presiding Judge

Jane E. Markey, Michael R. Smolenski, Judges

APPENDIX 2

ORDER

The Court orders that the motion to remand pursuant to

MCR 7.211(C)(1)(a) is DENIED for the failure to persuade

the Court of the necessity of a remand at this time.

/s/

Presiding Judge

APPENDIX 3

RELEVANT STATUTORY PROVISION INVOLVED

Michigan Compiled Laws § 769.34 (2002)

(1) The sentencing guidelines promulgated by order of the

Michigan supreme court shall not apply to felonies

enumerated in part 2 of chapter XVII committed on or after

January 1, 1999.

(2) Except as otherwise provided in this subsection or for a

departure from the appropriate minimum sentence range

provided for under subsection (3), the minimum sentence

imposed by a court of this state for a felony enumerated in

part 2 of chapter X VII committed on or after January 1, 1999

shall be within the appropriate sentence range under the

version of those sentencing guidelines in effect on the date the

crime was cemmitted. Both of the following apply to

minimum sentences under this subsection:

(a) If a statute mandates a minimum sentence for an

individual sentenced to the jurisdiction of the department

of corrections, the court shall impose sentence in

accordance with that statute. Imposing a mandatory

minimum sentence is not a departure under this section.

If a statute mandates a minimum sentence for an

individual sentenced to the jurisdiction of the department

of corrections and the statute authorizes the sentencing

judge to depart from that minimum sentence, imposing a

sentence that exceeds the recommended sentence range

but is less than the mandatory minimum sentence is not a

departure under this section. If the Michigan vehicle code,

1949 PA 300, MCL 257.1 to 257.923, mandates a

minimum sentence for an individual sentenced to the

jurisdiction of the department of corrections and the

Michigan vehicle code, 1949 PA 300, MCL 257.1 to

257.923, authorizes the sentencing judge to impose a

sentence that is less than that minimum sentence,

imposing a sentence that exceeds the recommended

sentence range but is less than the mandatory minimum

sentence is not a departure under this section.

(b) The court shall not impose a minimum sentence,

including a departure, that exceeds 2/3 of the statutory

maximum sentence.

(3) A court may depart from the appropriate sentence range

established under the sentencing guidelines set forth in chapter

XVII if the court has a substantial and compelling reason for

that departure and~states-on the record the reasons for

departure. All of the following apply to a departure:

(a) The court shall not use an individual's gender, race,

ethnicity, alienage, national origin, legal occupation, lack

of employment, representation by appointed legal counsel,

representation by retained legal counsel, appearance in

propria persona, or religion to depart from the appropriate

sentence range.

(b) The court shall not base a departure on an offense

characteristic or offender characteristic already taken into

account in determining the appropriate sentence range

unless the court finds from the facts contained in the court

record, including the presentence investigation report, that

the characteristic has been given inadequate or

disproportionate weight.

(4) Intermediate sanctions shall be imposed under this chapter

as follows:

(a) If the upper limit of the recommended minimum

sentence range for a defendant determined under the

sentencing guidelines set forth in chapter XVII is 18

months or less, the court shall impose an intermediate

sanction unless the court states on the record a substantial

and compelling reason to sentence the individual to the

jurisdiction of the department of corrections. An

intermediate sanction may include a jail term that does not

exceed the upper limit of the recommended minimum

sentence range or 12 months, whichever is less.

(b) If the offense is a violation of section 7401(2)(a)(iv) or

7403(2)(a)(iv) of the public health code, 1978 PA 368,

MCL 333.7401 and 333.7403, and the upper limit of the

recommended minimum sentence range is 18 months or

less, the court shall impose a sentence of life probation

absent a departure.

class H in part 2 of this chapter is punishable by

imprisonment for more than | year, the court shall impose

an intermediate sanction upon conviction of that offense

absent a departure.

(d) If the upper limit of the recommended minimum

sentence exceeds 18 months and the lower limit of the

recommended minimum sentence is 12 months or less, the

court shall sentence the offender as follows absent a

departure:

(1) To imprisonment with a minimum term within that-

range.

(ii) To an intermediate sanction that may include a

‘term of imprisonment of not more than 12 months.

(5) If a crime has a mandatory determinant penalty or a

mandatory penalty of life imprisonment, the court shall

impose that penalty. This section does not apply to sentencing

for that crime.

(6) As part of the sentence, the court may also order the

defendant to pay any combination of a fine, costs, or

applicable assessments. The court shall order payment of

restitution as provided by law.

(7) If the trial court imposes on a defendant a minimum

sentence that is longer or more severe than the appropriate

sentence range, as part of the court's advice of the

defendant's rights concerning appeal, the court shall advise

the defendant orally and in writing that he or she may appeal

the sentence as provided by law on grounds that it is longer

or more severe than the appropriate sentence range.

(8) All of the following shall be part of the record filed for an

appeal of a sentence under this section:

(a) An entire record of the sentencing proceedings.

(b) The presentence investigation report. Any portion of

the presentence investigation report exempt from

disclosure by law shall not be a public record.

used in imposing sentence.

(9) An appeal of a sentence under this section does not stay

execution of the sentence.

(10) If a minimum sentence is within the appropriate

guidelines sentence range, the court of appeals shall affirm

that sentence and shall not remand for resentencing absent an

error in scoring the sentencing guidelines or inaccurate

information relied upon in determining the defendant's

sentence. A party shall not raise on appeal an issue

challenging the scoring of the sentencing guidelines or

challenging the accuracy of tnformation relied upon in

determining a sentence that is within the appropriate

guidelines sentence range unless the party has raised the issue

at sentencing, in a proper motion for resentencing, or in a

proper motion to remand filed in the court of appeals.

(11) If, upon a review of the record, the court of appeals finds

the trial court did not have a substantial and compelling

reason for departing from the appropriate sentence range, the

court shall remand the matter to the sentencing judge or

another trial court judge for resentencing under this chapter.

(12) Time served on the sentence appealed under this section

is considered time served on any sentence imposed after

remand.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.