People v. McCuller

Citation479 Mich. 672,739 N.W.2d 563
Decision Date26 July 2007
Docket NumberDocket No. 128161.
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. Raymond A. MCCULLER, Defendant-Appellant.
CourtSupreme Court of Michigan

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

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

Kimberly Thomas 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 the Attorney General and the Prosecuting Attorneys Association of Michigan.

Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the Wayne County Prosecuting Attorney.


This is one of three companion cases involving the application of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to Michigan's sentencing scheme. See also People v. Harper, 479 Mich. 599, 739 N.W.2d 523 (2007). This case returns to us following a remand from the United States Supreme Court. In our previous opinion, we held that a sentencing court must score both the offense variables (OVs) and the prior record variables (PRVs) to arrive at a defendant's minimum sentence range. We reasoned that a sentencing court does not violate Blakely principles when it engages in judicial fact-finding to score the OVs in order to calculate a defendant's recommended minimum sentence range under the sentencing guidelines, even if the defendant's PRV score alone would place him in an "intermediate sanction cell."1 People v. McCuller, 475 Mich. 176, 715 N.W.2d 798 (2006) (McCuller I). The Supreme Court subsequently vacated our judgment and remanded the case to us for further consideration in light of Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). McCuller v. Michigan, ___ U.S. ___, 127 S.Ct. 1247, 167 L.Ed.2d 62 (2007) (McCuller II). Having now considered Cunningham, we reaffirm our original decision for three reasons.2

First, Cunningham does not alter our view that Michigan's statutory scheme requires the sentencing court to score both the OVs and the PRVs before determining the defendant's minimum sentence. A defendant's qualification for an intermediate sanction is contingent on the sentencing court's calculation and application of these sentencing variables. A sentencing court's fact-finding in scoring the OVs does not increase the defendant's statutory maximum under Blakely.3 Here, the proper scoring of both the OVs and the PRVs did not place defendant in an intermediate sanction cell. Instead, defendant's scores placed him in a "straddle cell" with a maximum sentence of 15 years in prison. Defendant was sentenced within this statutory maximum.

Second, as we explained in Harper, supra at 603, 739 N.W.2d 523 Michigan, unlike California, has a true indeterminate sentencing scheme. A sentencing court scores the OVs only to calculate the recommended range for the minimum portion of the defendant's sentence, not to arrive at the defendant's maximum sentence, which is set by statute. The conditional limit on incarceration contained in MCL 769.34(4)(a) — an intermediate sanction — does not establish the defendant's statutorily required maximum sentence authorized by the jury's verdict or the guilty plea, but is instead 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's verdict or the guilty plea. Harper, supra at 615, 739 N.W.2d 523. Therefore, even if defendant were to be sentenced on the basis of his PRV score alone, the sentencing court would not violate Blakely by sentencing him to the statutory maximum of 15 years in prison.

Third, even if the sentencing court violated Blakely by sentencing defendant to a term of imprisonment based on its scoring of the OVs, the error was harmless under the plain error standard of People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). The factors underlying the scoring of the OVs were uncontested and supported by overwhelming evidence. We are firmly convinced that a jury would have reached precisely the same result.


Defendant apparently harbored some resentment toward the victim, Larry Smith, because a woman who once lived with defendant had left him for Smith. Smith and the woman were imbibing at a local bar when Smith was told that a man outside in the parking lot was harassing Smith's dog. When Smith went outside, he heard someone behind him. He turned and saw defendant swinging a blunt object that looked like a bat, a pipe, or a club at his head. The next thing Smith remembered was regaining consciousness in the hospital. As a result of defendant's assault on Smith, he suffered a concussion, broken nose, broken cheek bone, broken eye socket, fractured skull, and collapsed right inner ear wall. He also lost teeth on the right side of his lower jawbone.

A jury convicted defendant of assault with intent to do great bodily harm less than murder, MCL 750.84, which has a maximum penalty of 10 years in prison. Because defendant was a second-offense habitual offender however, the sentencing court had the discretion to enhance defendant's statutory maximum sentence to 15 years. MCL 769.10(1)(a).4 In determining defendant's minimum sentence range, the sentencing court scored 10 points for OV 1 because the victim had been "touched by any other type of weapon," MCL 777.31(1)(c) (now MCL 777.31[1][d]); 1 point for OV 2 because defendant "possessed or used any other potentially lethal weapon," MCL 777.32(1)(d) (now MCL 777.32[1][e]); and 25 points for OV 3 because a "[l]ife threatening or permanent incapacitating injury occurred to a victim," MCL 777.33(1)(c). Defendant's total PRV score was 2 points because he had one prior misdemeanor conviction. These scores placed defendant in the B-IV cell for a class D offense. As a second-offense habitual offender, defendant's calculated minimum sentence range was 5 to 28 months, which is in a straddle cell.5 Because the scoring of the OVs and the PRVs placed defendant in a straddle cell, the sentencing court had the option of sentencing defendant to either an intermediate sanction or a prison term with a minimum sentence within the guidelines range. MCL 769.34(4)(c). The court chose to sentence defendant within the guidelines range to a 2- to 15-year term of imprisonment.

On appeal, defendant contended that he was entitled to resentencing under Blakely because the jury had not found beyond a reasonable doubt the facts underlying the sentencing court's scoring of the OVs. Defendant argued that absent the sentencing court's scoring of the OVs, his minimum sentence range would have been zero to 11 months, which would have placed him in an intermediate sanction cell, entitling him to an intermediate sanction as a maximum sentence. The Court of Appeals affirmed defendant's conviction and sentence, rejecting defendant's argument because Blakely does not apply to Michigan's indeterminate sentencing system.

This Court also affirmed defendant's sentence.6 We held that the sentencing court had not violated Blakely by engaging in judicial fact-finding to score the OVs necessary to calculate the recommended minimum sentence range. We explained that a defendant cannot be sentenced to an intermediate sanction by scoring the PRVs only — the OVs must also be scored. Thus, defendant was not entitled to resentencing, because his maximum sentence was the statutory maximum of 15 years, which the sentencing court had not exceeded. McCuller I, supra at 181-183, 715 N.W.2d 798.

The Supreme Court thereafter vacated our judgment and remanded this case to this Court "for further consideration in light of Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)." McCuller II, supra, 127 S.Ct. at 1247.


This case involves questions of statutory interpretation and constitutional questions, which are both reviewed de novo. People v. Stewart, 472 Mich. 624, 631, 698 N.W.2d 340 (2005); People v. Drohan, 475 Mich. 140, 146, 715 N.W.2d 778 (2006). An unpreserved claim of constitutional error is reviewed for plain error affecting substantial rights. Carines, supra at 763-764, 597 N.W.2d 130.7


In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the 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, the Blakely Court stated:

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. [Id. 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...

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