People v. McCuller

• Decision Date: 13 June 2006
• Docket Number: Docket No. 128161.
• Parties: PEOPLE of the State Of Michigan, Plaintiff-Appellee, v. Raymond A. MCCULLER, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 798

715 N.W.2d 798

475 Mich. 176

PEOPLE of the State Of Michigan, Plaintiff-Appellee, v. Raymond A. MCCULLER, Defendant-Appellant.

Docket No. 128161.

Supreme Court of Michigan.

June 13, 2006.

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

State Appellate Defender (by Desiree M. Ferguson), Detroit, for the defendant.

Kimberly Thomas, Ann Arbor, for Criminal Defense Attorneys of Michigan.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Ron Franz, President, Prosecuting Attorneys Association of Michigan, and William E. Molner, Assistant Attorney General, Lansing, for the Prosecuting Attorneys Association of Michigan.

MEMORANDUM OPINION.

Defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84, following a jury trial. The properly scored recommended minimum sentence guidelines range for defendant's offense provided for a term of five to 28 months' imprisonment, thus placing defendant in a so-called "straddle cell."¹ The trial court sentenced defendant within the guidelines range to two to 15 years of imprisonment. On appeal, defendant argues that because his prior record variable (PRV) score alone placed him in a recommended minimum guidelines range of zero to 11 months, he is entitled to an intermediate sanction.² Defendant contends that the trial court violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by engaging in judicial fact-finding to score the offense variables (OVs), thereby allegedly increasing his maximum sentence from an intermediate sanction to a prison term. We reject defendant's and the dissent's contention and affirm defendant's sentence.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that under the Sixth and Fourteenth amendments of the United States Constitution, "[o]ther 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." In Blakely, supra at 303, 124 S.Ct. 2531 the Court held that "the `statutory maximum' for Apprendi purposes 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." (Emphasis deleted.) In regard to indeterminate sentencing schemes such as Michigan's, the Blakely Court reaffirmed that a sentencing court may engage in judicial fact-finding in order to impose a minimum term within the statutory range. See People v. Drohan, 475 Mich. 140, 715 N.W.2d 778, 2006 WL 1642618 (2006) (Docket No. 127489, decided June 13, 2006). The Blakely Court explained:

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. [Blakely, supra at 309, 124 S.Ct. 2531 (emphasis in original).]

Thus, a sentencing court in an indeterminate sentencing scheme does not violate Blakely by engaging in fact-finding to determine the minimum term of a defendant's indeterminate sentence unless the fact-finding increases the statutory maximum sentence to which the defendant had a legal right.

In Michigan, when the high end of the recommended minimum guidelines range is 18 months or less, MCL 769.34(4)(a) requires a sentencing court, absent articulation of substantial and compelling reasons, to impose an intermediate sanction, which may include a jail term of no more than 12 months:

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. [Emphasis added.]

MCL 777.21 explicitly requires the court to consider the OVs, the PRVs, and the offense class to determine a defendant's recommended minimum guidelines range.³ Under our statutory scheme, a defendant has no legal right to have the minimum sentence calculated using only a fraction of the statutorily enumerated factors. Thus, under MCL 769.34(4)(a), a defendant is not legally entitled to an intermediate sanction until after the OVs have been scored and those OVs, in conjunction with the PRVs and the offense class, indicate that the upper limit of the defendant's guidelines range is 18 months or less. In other words, a defendant's legal right to an intermediate sanction arises from properly scored guidelines, including the scoring of the OVs. A sentencing court does not violate Blakely and its progeny by engaging in judicial fact-finding to score the OVs to calculate the minimum recommended sentencing guidelines range, even when the defendant's PRV score alone would have placed the defendant in an intermediate sanction cell.⁴

In this case, properly scored guidelines placed defendant in a recommended minimum sentence range of five to 28 months in prison. This placed defendant in a "straddle cell," in which the trial court was permitted to choose between imposing an intermediate sanction or a prison term. MCL 769.34(4)(c). Thus, defendant faced a statutory maximum sentence of 15 years in prison for his conviction of assault with intent to do great bodily harm less than murder as a second-offense habitual offender, MCL 750.84; MCL 769.10. Because the properly scored guidelines range did not entitle defendant to an intermediate sanction, the trial court did not violate Blakely by scoring the OVs before imposing a prison sentence within the guidelines. Accordingly, we affirm defendant's sentence.

In all other respects, defendant's application for leave to appeal is denied, because we are not persuaded that this Court should review the remaining questions presented.

CLIFFORD W. TAYLOR, ELIZABETH A WEAVER, MAURA D. CORRIGAN, ROBERT P. YOUNG, JR., and STEPHEN J. MARKMAN, JJ., concur.

MARILYN J. KELLY, J. (dissenting).

This case provides the Court an opportunity to fully and carefully explore the effects on Michigan's sentencing guidelines¹ of the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). It presents an important Blakely problem: whether judicial fact-finding that increases a person's sentence by moving it from an intermediate sanction cell to a straddle cell violates the person's Sixth Amendment² right to trial by jury. I have concluded that it does. Hence, I would rule that Michigan's sentencing guidelines are unconstitutional as applied. Because a Blakely violation occurred here, I would remand the case to the trial court so that defendant could be resentenced.

PROCEDURAL FACTS

A jury found defendant Raymond McCuller guilty of assault with intent to do great bodily harm less than murder. MCL 750.84. In arriving at its sentence, the trial court followed these steps: Because defendant had previously been convicted of a misdemeanor, the judge scored two points for the prior record variables (PRVs). He also scored 36 points for the offense variables (OVs). He did this by making certain findings of fact. He found that the victim had been touched by a weapon, other than a gun or knife, and scored OV 1 at ten points. MCL 777.31. He found that defendant had possessed a potentially lethal weapon and scored OV 2 at one point. MCL 777.32. He found that the victim had suffered a life threatening or permanent incapacitating injury, and scored OV 3 at 25 points. MCL 777.33.

The sentencing guidelines statutes make assault with intent to do great bodily harm less than murder a class D offense. MCL 777.16d. In the guidelines class D sentencing grid, a PRV level of two points and an OV level of 36 points placed defendant in the B-IV cell. This cell provides a minimum sentence range of five to 23 months. MCL 777.65.³ Because defendant had a prior conviction, the judge increased the top number by 25 percent to 28 months. MCL 777.21(3)(a).⁴ The range for his minimum sentence became five to 28 months. Accordingly, the judge sentenced defendant within this range to a minimum of two years' imprisonment.

After the sentencing and before defendant filed his claim of appeal, the United States Supreme Court released its decision in Blakely. Defendant could not have raised a Blakely issue at his sentencing. But he did raise the issue in his appeal to the Court of Appeals. Unfortunately, that Court did not directly address the issue. Instead, it relied on our dicta discussion of the subject contained in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004). As a result, it found that defendant was not entitled to resentencing. People v. McCuller, unpublished opinion per curiam of the Court of Appeals, issued January 11, 2005, 2005 WL 50187 (Docket No. 250000).

Originally, this Court held the case in abeyance for the matter of People v. Drohan, 472 Mich. 881, 693 N.W.2d 823 (2005). Later, we scheduled oral argument for the purpose of determining whether to grant the application or take other peremptory action pursuant to MCR 7.302(G)(1). We specifically ordered the parties to address the effect of Blakely on defendant's sentence. Unfortunately, in its opinion, the majority fails to recognize the...