People v. Drohan

Citation475 Mich. 140,715 N.W.2d 778
Decision Date13 June 2006
Docket NumberDocket No. 127489.,COA No. 1.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Eric DROHAN, Defendant-Appellant.
CourtSupreme Court of Michigan

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, P.C. (by Michael J. McCarthy), Redford, for the defendant.

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

Stuart J. Dunnings, III, Kym L. Worthy, and Timothy A. Baughman, Detroit, for Prosecuting Attorneys Association of Michigan.


We granted leave to appeal to consider whether Michigan's indeterminate sentencing scheme, which allows a trial court to set a defendant's minimum sentence on the basis of factors determined by a preponderance of the evidence, violates the Sixth Amendment of the United States Constitution. Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, MCL 750.520d(1)(b), and one count of fourth-degree criminal sexual conduct, MCL 750.520e(1)(b). Defendant also pleaded guilty to a charge of being a third-offense habitual offender, MCL 769.11. The trial court sentenced defendant to a term of 127 to 360 months of incarceration on the third-degree criminal sexual conduct conviction. This range was calculated by the trial court's assignment of points to defendant's "offense variable" and "prior record variable" scores under a "preponderance of the evidence" standard. Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt. The Court of Appeals affirmed the conviction, relying on this Court's decision in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004). Because we conclude that Michigan's sentencing scheme does not offend the Sixth Amendment,1 we affirm defendant's sentence.


The victim in this case and defendant were coworkers. She testified that defendant sexually assaulted her on four separate occasions between July 17, 2002, and October 25, 2002. The first incident took place on July 17, when defendant asked the victim to assist him with his computer at his cubicle. While there, defendant grabbed her hand and placed it on his clothed penis. In addition, defendant rubbed her clothed breast. The second incident occurred on July 19 at about 2:00 p.m. At that time, defendant entered the victim's cubicle, again grabbed her hand and placed it over his penis, and made a sexual comment. The third incident occurred at around 4:00 p.m. on that same day. The victim testified that defendant accosted her in the parking garage and forced her into his car. Defendant demanded oral sex, and, when she refused, he grabbed the back of her head and forced her to perform oral sex until he ejaculated. The final incident took place on October 25 while the company was moving its office to a new location. As the victim moved things out of her cubicle, defendant entered, grabbed her hand and placed it over his penis, and made a sexual comment. The victim did not report any of these incidents until after defendant left the company. Defendant was prosecuted for one count of third-degree criminal sexual conduct and two counts of fourth-degree criminal sexual conduct. The jury convicted defendant of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. Following the verdict, defendant pleaded guilty of being a third-offense habitual offender, MCL 769.11.

At sentencing, the trial court scored ten points for offense variable 4 (psychological injury to a victim) and 15 points for offense variable 10 (exploitation of a vulnerable victim).2 Defendant's total score placed him in the C-V cell,3 and the trial court sentenced him at the high end of the guidelines to a minimum term of 127 months and a maximum term of 360 months on the third-degree criminal sexual conduct conviction.4 Defendant was also sentenced to a concurrent term of 12 to 48 months on the fourth-degree criminal sexual conduct conviction.

Defendant appealed, asserting that his minimum sentence violated the United States Supreme Court's decision in Blakely because it was based on judicially ascertained facts that had not been determined by the jury beyond a reasonable doubt. Pursuant to Claypool, the Court of Appeals affirmed defendant's convictions and sentence, observing that Blakely does not apply to Michigan's sentencing scheme. People v. Drohan, 264 Mich.App. 77, 89 n. 4, 689 N.W.2d 750 (2004).5 This Court granted defendant's application for leave to appeal, limited to the issue whether Blakely applies to Michigan's sentencing scheme. 472 Mich. 881, 693 N.W.2d 823 (2005).


The issue in this case concerns whether Michigan's sentencing scheme violates the Sixth Amendment of the United States Constitution because it permits a defendant's minimum sentence to be determined on the basis of facts not proven to the jury beyond a reasonable doubt. A Sixth Amendment challenge presents a question of constitutional law that we review de novo. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004).


The Sixth Amendment of the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation . . . .

The United States Supreme Court first addressed the Sixth Amendment implications of the enhancement of a defendant's sentence based on judicially ascertained facts in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, a Pennsylvania statute imposed a five-year mandatory minimum sentence if the trial court concluded, by a preponderance of the evidence, that a defendant "`visibly possessed a firearm'" during the commission of an enumerated felony. Id. at 81, 106 S.Ct. 2411. However, the sentencing statute did not permit a sentence in excess of the maximum established for the enumerated felonies.6 The defendants, relying on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970),7 argued that the visible possession of a firearm constitutes an element of the offense, and, therefore, must be proven beyond a reasonable doubt. The Court, while noting that the Pennsylvania statute provided that the possession of a firearm was "not an element of the [enumerated] crimes," McMillan, supra at 85-86, 106 S.Ct. 2411 opined that this provision did not "relieve the prosecution of its burden of proving guilt ...." Id. at 87, 106 S.Ct. 2411. Nonetheless, the Court found it significant that the statute

neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. [Id. at 87-88, 106 S.Ct. 2411.]

The Court went on to note that the defendants' claims "would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment ...." Id. at 88, 106 S.Ct. 2411. However, the Pennsylvania statute merely raised the minimum sentence that could be imposed by the trial court. Because the minimum sentence did not alter the maximum penalty authorized by the jury's verdict, the statute did not violate the Constitution.

While McMillan sanctioned the use of judicially ascertained facts to establish a minimum sentence, the United States Supreme Court, in Jones v. United States, 526 U.S. 227, 239, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), stated that the use of such facts to increase the maximum sentence posed "`grave and doubtful constitutional questions . . . .'" (Citation omitted.) In Jones, the defendant was convicted of violating the federal carjacking statute. The statute called for a 15-year maximum, but also provided for a 25-year maximum where the victim suffered serious bodily injury, and a potential life term where the victim was killed. 18 U.S.C. 2119. The trial court imposed a 25-year sentence, determining by a preponderance of the evidence that the victim had suffered "serious bodily injury." The defendant argued that the statute created three distinct offenses, while the prosecutor argued that the statute created a single crime with the choice of three maximum penalties. In analyzing which interpretation of the statute should prevail, the Court observed that,

under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government's reading of the [carjacking] statute rises only to the level of doubt, not certainty. [Jones, supra at 243 n. 6, 119 S.Ct. 1215.]

As a result of these concerns, the Court held that the statute established three separate offenses and, therefore, reversed the defendant's conviction.

The following year, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the ...

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