People v. Harper

• Citation: 479 Mich. 599,739 N.W.2d 523
• Decision Date: 26 July 2007
• Docket Number: Calendar No. 6.,Calendar No. 7.,Docket No. 131898.,Docket No. 130988.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard George HARPER, Jr., Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Jesse Gene Burns, Defendant-Appellant.
• Court: Supreme Court of Michigan

739 N.W.2d 523

479 Mich. 599

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard George HARPER, Jr., Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Jesse Gene Burns, Defendant-Appellant.

Docket No. 130988.

Docket No. 131898.

Calendar No. 6.

Calendar No. 7.

Supreme Court of Michigan.

Argued April 12, 2007.

Decided July 26, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David S. Leyton, Prosecuting Attorney, and Donald A. Kuebler, Research, Training, and Appeals Chief, Harper, for the people.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Frederick Anderson, Prosecuting Attorney, and Douglas E. Ketchum, Assistant Prosecuting Attorney, Burns, for the people.

State Appellate Defender (by Michael L. Mittlestat) for Bernard G. Harper, Jr.

State Appellate Defender (by Jeanice Dagher-Margosian) for Jesse G. Burns.

Kimberly Thomas and Miller, Canfield, Paddock and Stone, P.L.C. (by Hideaki Sano), Ann Arbor, Ann Arbor, for amici curiae Criminal Defense Attorneys of Michigan.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, and William E. Molner, Assistant Attorney General, for amici curiae the Attorney General and the Prosecuting Attorneys Association of Michigan.

CORRIGAN, J.

We granted leave to appeal in these two cases to determine whether an "intermediate sanction" described in MCL 769.31(b) and MCL 769.34(4) constitutes a maximum sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), for which the facts supporting a departure must be found by a jury beyond a reasonable doubt or admitted by the defendant. We conclude that because Michigan has a true indeterminate sentencing scheme, an intermediate sanction is not a maximum sentence that is governed by Blakely.

Under Michigan law, the maximum portion of a defendant's indeterminate sentence is prescribed by MCL 769.8(1), which requires a sentencing judge to impose no less than the prescribed statutory maximum sentence as the maximum sentence for most felony convictions. Michigan's unique law requiring the imposition of an intermediate sanction upon fulfillment of the conditions of MCL 769.34(4)(a) does not alter the maximum sentence that is required upon conviction and authorized by either the jury verdict or the guilty plea.¹ Rather, the conditional limit on incarceration contained in MCL 769.34(4)(a) is a matter of legislative leniency, giving a defendant the opportunity to be incarcerated for a period that is less than that authorized by the jury verdict or the guilty plea, a circumstance that does not implicate Blakely.²

Finally, even if an intermediate sanction were a statutory maximum for purposes of Blakely and the sentencing courts in these cases violated Blakely, we conclude that any error was harmless. In both cases, the facts used by the sentencing judges to support the sentence were uncontested and supported by overwhelming evidence, such that we are convinced beyond a reasonable doubt that a jury would have reached the same result. Accordingly, we affirm the defendants' convictions and sentences.

I. FACTS AND PROCEDURAL HISTORY

A. PEOPLE v. HARPER

On February 14, 2005, defendant Harper pleaded guilty of larceny in a building, which is a class G offense that carries a statutory maximum sentence of four years' imprisonment.³ He admitted that, between December 11 and December 16, 2004, he stole coats from his employer, the Old News Boys of Flint, a nonprofit organization that solicits donations to aid needy families in Flint. Harper then sold some of the coats.

As part of the plea agreement, the prosecutor dismissed a related embezzlement charge.⁴ The prosecutor also agreed not to seek an enhanced sentence based on Harper's status as a fourth-offense habitual offender.⁵ The parties made no other agreement regarding Harper's sentence.

Harper did not contest that his criminal record included two prior convictions for high severity felonies, three prior convictions for low severity felonies, and one prior misdemeanor conviction. Accordingly, he received an overall prior record variable (PRV) score of 72, based on scores of 50, 20, and 2 points, respectively, for PRV 1, PRV 2, and PRV 5.⁶ His offense variable (OV) score consisted of the five points he received under OV 16, because his offense caused property with a value of $1,000 or more but not more than $20,000 to be "obtained, damaged, lost or destroyed."⁷ These scores placed him in the E-I cell of the sentencing grid for class G offenses. As a result, his calculated minimum sentence range was zero to 17 months.⁸

Because his minimum sentence range had an upper limit of 18 months or less, the court was required to impose an intermediate sanction — which may include, for instance, a term of probation or a jail term of 12 months or less — unless the court stated on the record a substantial and compelling reason to impose a prison term.⁹ The Genesee Circuit Court concluded that departure was justified for several reasons, including Harper's extensive criminal history. The court noted Harper's record of three parole revocations, his history of absconding from parole, the bench warrants issued against him for failures to appear in court, and other "out of state" legal problems reflected in his presentence investigation report. The court added that the sentencing guidelines did not take into account that Harper had "ripped off a charity that was trying to do good for cold children." Accordingly, on March 11, 2005, the court sentenced Harper to a minimum prison term of 24 months, and a maximum term of 48 months with credit for time served.

The Court of Appeals denied defendant's delayed application for leave to appeal, citing lack of merit in the grounds presented. Harper then applied for leave to appeal in this Court. We granted leave to consider whether his sentence, as an upward departure from an intermediate sanction, violated his constitutional right to have "`any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... submitted to a jury, and proved beyond a reasonable doubt.'" Blakely, supra at 301, 124 S.Ct. 2531 quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).¹⁰

B. PEOPLE v. BURNS

In July 2002, defendant Burns pleaded guilty of attempted breaking and entering of a building. His recommended minimum sentence range under the guidelines was zero to 11 months, which placed him in an intermediate sanction cell. Burns was placed on probation for three years. Among the conditions of probation were that he must not violate the law, that he must not engage in threatening or assaultive behaviors, and that he must avoid alcohol and illegal drug consumption.

In June 2005, Burns was charged with four counts of violating the terms of his probation: using alcohol, committing fourth-degree criminal sexual conduct, engaging in harassment, and engaging in assaultive behavior. Burns pleaded not guilty to the probation violation charges.

A probation violation hearing was held. Two 18-year-old women testified that Burns had approached them near a boat ramp on Lake Michigan in Ottawa County. After engaging in small talk, Burns asked one of the women if she gave "good head." He also touched the woman on the buttocks and commented that it was "nice." Burns asked the other woman similar sexual questions and put his arm around her. The two women wrote down Burns's license plate number and reported the incident to the police.

A police officer came to investigate the complaint. The officer stopped Burns's boat. The two women identified Burns as the person who had assaulted them. Although Burns initially denied that the incident had occurred, he eventually admitted to the officer that he had asked the women if they knew how to give "a blow job." He also admitted that he had touched one woman on the buttocks and the other on the shoulder. He further told the officer that he had consumed about six beers and was "buzzed." Burns was administered a preliminary breath test that registered a blood alcohol level above the legal limit.

Burns called no witnesses and presented no evidence at the probation violation hearing. The trial court found, by a preponderance of the evidence, that Burns had been intoxicated, that he had committed fourth-degree criminal sexual conduct, and that he had done so in an intimidating, aggressive manner.

At the probation violation sentencing, the trial court departed from the original guidelines recommendation of zero to 11 months and imposed a sentence of 18 months to 5 years. The court explained its decision:

Well, I'm glad to hear that you've found religion and the reason to — it can give some meaning to your life. It doesn't however change what you did here. You know, there wasn't any question but that you did this to these young girls. I don't understand in a sense why you put them through taking the stand and testify [sic] to the whole thing, because there wasn't any issue, you did it. It expresses an attitude to me that is very puzzling. It's kind of a mean spirited thing that you did. Not that you didn't have a perfect right to do it, I would never dispute your right to a hearing and to have testimony confirm it, but it wasn't a close case, it was a clear cut case of a great deal of abuse on your part. You were about as intimidating and — to those young girls and you scared the devil out of them.

It's a difficult thing to understand how you could publicly do that to people, young girls you didn't even know, you didn't have any — it was gross, it was very gross. Very intimidating.

I suspect because of the fact that you fondled the one young lady you're probably going to be looking at some serious time in Holland if you're convicted [of fourth-degree criminal sexual conduct]. I suspect you will be because the girls told the story very...