1.9Motion to Correct Invalid Sentence

In addition to the following discussion, see the Michigan Judicial Institute’s Motion to Correct an Invalid Sentence Checklist.

A.Authority to Modify Sentence

“The court may correct an invalid sentence, on its own initiative after giving the parties an opportunity to be heard, or on motion by either party.” MCR 6.429(A). If the court corrects an invalid sentence on its own initiative, it must do so within 6 months of the entry of the judgment of conviction and sentence. Id.

“[T]he court may not modify a valid sentence after it has been imposed except as provided by law.” MCR 6.429(A). “This reflects the well-recognized principle that trial courts possess the power to review and correct an invalid sentence.” People v Comer, 500 Mich 278, 295 (2017).¹ “It also distinguishes this power from the trial court’s authority to modify a valid sentence, which is much more circumscribed.” Id. See also People v Holder, 483 Mich 168, 170, 177 (2009) (holding the trial court had no authority to modify the defendant’s judgment of sentence where the original sentence was valid at the time it was imposed); People v Moore (Louis), 468 Mich 573, 579 (2003) (“[a] trial judge has the authority to resentence a defendant only when the previously imposed sentence is invalid”); People v Wybrecht, 222 Mich App 160, 166 (1997) (holding a “trial court lacks authority to set aside a valid sentence once the defendant begins serving it”).

Where the trial court corrected an invalid judgment of sentence sua sponte to add a mandatory lifetime electronic monitoring (LEM) requirement within the six-month period provided by MCR 6.429(A), but failed to give the parties an opportunity to be heard on the matter before correcting the judgment of sentence, it “acted in violation of MCR 6.429(A).” People v Pendergrass, ___ Mich App ___, ___ (2023) (finding the trial court’s error harmless where “there is nothing defendant could have argued to avoid the mandatory LEM”).²

“The trial court had jurisdiction to consider [the defendant’s] arguments concerning his second-degree murder sentence at the resentencing for first-degree murder held pursuant to MCL 769.25a and Miller v Alabama, 567 US 460 (2012).” People v Williams, 505 Mich 1013 (2020) (ordering the trial court to “consider whether the sentence for second-degree murder was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole for first-degree murder,” and noting that if the trial court determines the sentence was based on a legal misconception it “may exercise its discretion to resentence the defendant for second-degree murder”).³

B.Invalid Sentences

“Invalid sentence refers to any error or defect in the sentence or sentencing procedure that entitles a defendant to be resentenced or to have the sentence changed.” 1989 Staff Comment to MCR 6.429.⁴ “[A]n inadvertently stated sentence cannot be set aside merely on the ground that the court misspoke.” People v Thomas (Gerry), 447 Mich 390, 393 (1994).

A sentence is invalid under the following circumstances:

•When it violates the “two-thirds rule” in People v Tanner, 387 Mich 683, 689-690 (1972),⁵ and MCL 769.34(2)(b). See Thomas, 447 Mich at 392-394 (determining proper way to correct a sentence that violates the two-thirds rule, assuming without explicitly stating that the sentence in violation of the two-thirds rule is invalid; specifically, the Court noted that “a sentencing court may not later modify a valid sentence,” and holds that adjustment of a sentence in violation of the two-thirds rule requires adjustment of the part of the sentence that is invalid, i.e., the minimum term of the sentence in violation of the two-thirds rule).

•When it exceeds statutory limits. People v Shipley, 256 Mich App 367, 378 (2003); People v Pointer-Bey, 321 Mich App 609, 620 (2017) (holding the defendant’s sentence was invalid and had to be corrected where “the sentence imposed exceeded the statutory limit”). A sentence in excess of the statutory limit is only invalid to the extent it exceeds the statutory limit. MCL 769.24; Thomas, 447 Mich at 393-394.

•When it is an impermissible combination of terms. People v Parish, 282 Mich App 106, 107-108 (2009) (the defendant’s sentence of a minimum term of years and a maximum of life in prison violated MCL 769.9(2), which provides that “[t]he court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence”).

•When concurrent sentences were imposed and consecutive sentencing was mandatory.⁶ People v Howell (Marlon), 300 Mich App 638, 646-647 (2013); People v Thomas (Roberto), 223 Mich App 9, 11 (1997).

•When the court mistakenly imposes consecutive sentences without statutory authority to do so. People v Alexander (Ronald), 234 Mich App 665, 677-678 (1999).

•A defendant’s due process rights are not implicated and a resentencing hearing is unnecessary where correction of the invalid sentence results in a decrease to the defendant’s overall prison term. Alexander, 234 Mich App at 678.

•When the sentence is based on inaccurate information or an error in scoring the sentencing guidelines.⁷ People v Jackson (Leonard), 487 Mich 783, 792 (2010).⁸ See also People v Miles (Dwayne), 454 Mich 90, 96 (1997) (stating a sentence is invalid where it is based on inaccurate information); People v Turner, 505 Mich 954 (2020) (stating a sentence is invalid if it is based on a misconception of law and explaining that “a concurrent sentence for a lesser offense is invalid if there is reason to believe that it was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole on the greater offense”).

•When the sentence is based on constitutionally impermissible grounds. Miles, 454 Mich at 96; People v Conley, 270 Mich App 301, 316 (2006) (holding that MCL 769.34(10) “cannot authorize action in violation of the federal or state constitutions”).⁹

•Where a trial court implies that it might impose a more lenient sentence if the defendant provides the court with information that requires the defendant to effectively admit his guilt, the court “violate[s] [the defendant’s] constitutional right against self-incrimination,” and the sentence is invalid. Conley, 270 Mich App at 314-316.

•It is constitutionally impermissible when fashioning a defendant’s sentence for a trial court to rely on a defendant’s constitutionally infirm prior convictions. People v Whalen, 412 Mich 166, 169 (1981). However, there exists no presumption that a court considered an unconstitutional prior conviction simply because the conviction was included in the information before the court at the time of sentencing. Alexander, 234 Mich App at 672. For such an issue to merit review, there must be some affirmative evidence that a sentencing court actually considered the conviction in question. Id. 

•When the sentence is based on a trial court’s improper assumption of the defendant’s guilt. Miles, 454 Mich at 96.

•When the sentence “conforms to local sentencing policy rather than individualized facts.” Miles, 454 Mich at 96.

•When a trial court “fails to exercise its discretion because of a mistaken belief in the law.” People v Green (Donte), 205 Mich App 342, 346 (1994). See also Miles, 454 Mich at 96 (stating a sentence is invalid where it is based on a misconception of law).

•A sentence was deemed invalid when the trial court imposed consecutive sentences under the mistaken belief that consecutive sentencing was mandatory. People v Daniels (Virgil), 69 Mich App 345, 349-350 (1976).

•“[T]here is no legal requirement that a trial court state on the record that it understands it has [sentencing] discretion and is utilizing that discretion [when imposing a sentence].” People v Knapp, 244 Mich App 361, 389 (2001). In the absence of record evidence that a court wrongly believed it had no discretion, a court is presumed to know the law and the judicial discretion the law authorizes. Id. 

•There was “no misunderstanding [of the law] by the sentencing judge that would entitle the defendant to resentencing” where the trial court clearly expressed its intention that—despite imposing a sentence of life imprisonment—the defendant be considered for parole, and after consideration of the defendant the Parole Board determined that it had “no interest” in granting parole. People v Moore (Louis), 468 Mich 573, 580 (2003) (noting that “the sentencing judge did not express any intention that defendant actually be paroled, but only that the Parole Board consider whether to parole him,” and holding that “the failure to accurately predict the actions of the Parole Board does not constitute a misapprehension of the law that could render the sentence invalid”).

•When a court fails to utilize a reasonably updated presentence investigation report (PSIR) when imposing a sentence. People v Hemphill, 439 Mich 576, 580-581 (1992) (holding defendant waived right to have PSIR updated for resentencing hearing).

•When the defendant and defense counsel are not given the opportunity to address the court before sentence is imposed. MCR 6.425(D)(1)(c); People v Wells, 238 Mich App 383, 392 (1999).

•When the trial court entered a judgment of sentence but failed to include a mandatory lifetime electronic monitoring requirement in the judgment of sentence. People v Pendergrass, ___ Mich App ___, ___ (2023) (additionally holding that the failure to include the lifetime electronic monitoring requirement was a substantive mistake, not a clerical error).

C.Time for Filing Motion

“MCR 6.429(B) provides a detailed process governing how and when a party may file a motion to correct an invalid sentence.” People v Comer, 500 Mich 278, 295 (2017).

“A motion to correct an invalid sentence may be filed before the filing of a timely claim of appeal.” MCR 6.429(B)(1). “Specifically, before the filing of a timely claim of appeal, either party may file a motion to correct an invalid sentence under MCR 6.429(B)(1).” Comer, 500 Mich at 295.

“After a claim of appeal has been filed, a party may only file a motion to correct an invalid sentence as specified by MCR 6.429(B)(2) and [MCR 6.429(B)(3)].” Comer, 500 Mich at 295. “These motions are time limited.” Id.

“If a claim of appeal has been filed, a motion to correct an invalid sentence may only be filed in accordance with the procedure set forth in MCR 7.208(B)^[10] or the remand procedure set forth in MCR 7.211(C)(1).” MCR 6.429(B)(2). “If a claim of appeal has been filed, a defendant has 56 days to file a motion to correct an invalid sentence.” Comer, 500 Mich at 295-296. Otherwise, “the appellant may file a motion to remand within the time provided for filing the appellant’s brief.” Id. at 296.

“If the defendant may only appeal by leave or fails to file a timely claim of appeal, a motion to correct an invalid sentence may be filed within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and [MCR 7.205(A)(2)(b)(i)-(iii)].” MCR 6.429(B)(3).

MCR 7.205(A)(2) provides, in relevant part:

“In a criminal case involving a final judgment or final order entered in that case, an application for leave to appeal filed on behalf of the defendant must be filed within the later of:

(a) 6 months after entry of the judgment or order; or

(b) 42 days after:

(i) an order appointing appellate counsel or substitute counsel, or denying a request for appellate counsel, if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(ii) the filing of transcripts ordered under MCR 6.425(G)(1)(f), if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(iii) the filing of transcripts ordered under MCR 6.433, if the defendant requested the transcripts within 6 months after entry of the judgment or order to be appealed[.]”

“If the defendant is no longer entitled to appeal by right or by leave, the defendant may seek relief pursuant to the procedure set forth in [MCR 6.500 et seq].” MCR 6.429(B)(4).

“If filed by an unrepresented individual who is incarcerated in a prison or jail, a pleading or other document must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline. Proof of timely filing may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.” MCR 1.112.

D.Correcting Invalid Sentences

1.Vacating Partial or Entire Sentence

“Where a sentence is partially invalid, only the invalid part is to be vacated for resentencing; however, a wholly invalid sentence is to be vacated in its entirety[.]” People v Parish, 282 Mich App 106, 108 (2009). In Parish, the defendant’s sentence of 126 months to life in prison was invalid because it violated MCL 769.9(2), which provides that a court “shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.” Parish, 282 Mich App at 107. The Court of Appeals held that the defendant’s original sentence was wholly invalid because it was “an impermissible combination of terms,” and resentencing was required. Id. at 108.

The Court of Appeals found “no support for the proposition that [courts] have inherent authority to broadly prohibit contact with all individuals outside of prison, with the sole exception of legal counsel . . . .” People v Lafey, ___ Mich App ___, ___(2024). “‘A judge of a court having jurisdiction may pronounce judgment against and pass sentence upon a person convicted of an offense in that court.’” Lafey, ___ Mich App at ___, quoting MCL 769.1(1). However, “[t]he sentence shall not exceed the sentence prescribed by law.” Lafey, ___ Mich App at ___. According to the Lafey Court, “there is no statute expressly authorizing the trial court to impose a blanket no-contact condition of sentence as was imposed in this case, and we are unaware of any statute that authorizes such a sentence by implication.” Id. at ___.

2.Resentencing is De Novo

“[O]nce an original sentence is vacated, the case is placed in a presentence posture,” and “[a]s a result, at resentencing, every aspect of the sentence is before the judge de novo[.]” People v Davis (Stafano), 300 Mich App 502, 509 (2013) (quotation marks and citation omitted, third alteration in original). See also People v Parish, 282 Mich App 106, 108 (2009) (holding that “resentencing is to be de novo,” and concluding “that the trial court was not precluded from imposing a new sentence with a longer minimum term”).

In resentencing the defendant, “[t]he trial court may consider the contents of the presentence investigation report [(PSIR)] when calculating the guidelines and the victims may have their statements included in the PSIR.” Davis, 300 Mich App at 509-510 (holding that where the case was remanded to reconsider the scoring of OV 13 and the remand order instructed the trial court to consider whether to resentence the defendant if it determined that OV 13 was improperly scored “the trial court was able to consider and decide other issues at resentencing once it determined that OV 13 had been erroneously scored,  . . . includ[ing] consideration of [a] newly appended victim’s impact statement”).

3.Required Notice

MCL 769.27 states that a court must provide notice to all parties of any change made to a sentence:

“If the court changes any sentence imposed under this act in any respect, the clerk of the court shall give written notice of the change to the prosecuting attorney, the defendant, and the defendant’s counsel. The prosecuting attorney, the defendant’s counsel, or the defendant may file an objection to the change. The court shall promptly hold a hearing on any objection filed.”

4.Due Process Requirements

“Certain sentence modifications of invalid sentences are ministerial in nature and do not require a resentencing hearing; however, other modifications require the due process protections of a resentencing hearing.” People v Miles (Dwayne), 454 Mich 90, 98-99 (1997) (noting that “the majority of cases presume that the correction of a sentence found invalid because of inaccuracies in information relied on at sentencing will occur at a resentencing hearing”). “[W]hen the trial court corrects a mistaken sentence and it does not have discretion to sentence a defendant any differently, the defendant is not entitled to a hearing.” People v Howell (Marlon), 300 Mich App 638, 648-651 (2013) (holding that where the defendant’s original judgments of sentence failed to specify that the sentences were to run consecutively the failure was “an omission within the meaning of [MCR 6.435(A)], not a reconsideration within the meaning of [MCR 6.435(B)],” and the defendant’s right to due process did not entitle him to a hearing before correction of his judgments of sentence to reflect the mandatory consecutive nature of the sentences). But see People v Thomas (Roberto), 223 Mich App 9, 15-16 (1997) (holding that the due process afforded by a resentencing hearing is required when a defendant is exposed to a greater possible penalty or when a defendant’s original sentence would be “drastically increased” by the modified sentence, and accordingly, resentencing was required where the trial court corrected concurrent sentences to consecutive sentences).

5.Remedy for Tanner Violation¹¹

The proper remedy for a violation of the two-thirds rule in MCL 769.34(2)(b) and People v Tanner, 387 Mich 683 (1972), is a reduction in the minimum sentence. People v Thomas (Gerry), 447 Mich 390, 392-394 (1994).

E.Preservation of Issues Concerning Sentencing Guidelines Scoring and Challenges Based on Scoring

Note: In People v Lockridge, 498 Mich 358, 365, 399 (2015), the Court held that although “a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence,” the guidelines “are advisory only.” Because nothing in Lockridge specifically calls into question the standards currently governing appellate review of sentences imposed under the (now advisory) guidelines, it is unclear to what extent all of these standards remain good law.¹² 

1.Sentences Within the Guidelines Range

MCL 769.34(10) and MCR 6.429(C) both provide that “[a] party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information 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.” A defendant therefore preserves a sentencing issue for appeal by raising the issue “‘at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.’” People v Clark (Tyrone), 315 Mich App 219, 223 (2016), quoting MCR 6.429(C). However, “MCL 769.34(10) cannot constitutionally be applied to preclude relief for sentencing errors of constitutional magnitude.” People v Conley, 270 Mich App 301, 316-317 (2006) (resentencing required when, even though the defendant’s sentence was within the appropriate guidelines sentence range, the trial court constitutionally erred in considering the defendant’s refusal to admit guilt at sentencing).

When a defendant raises a challenge to their within-guidelines sentence, that sentence is reviewed for reasonableness. People v Posey, 512 Mich 317, 326 (2023) (striking down the first sentence of MCL 769.34(10) that requires appellate affirmation of within-guidelines sentences that are based on accurate information without scoring errors; note that Justice Welch did not join this section of the opinion, but she agreed that the first sentence of MCL 769.34(10) must be severed albeit for a different reason). While Courts must review within-guidelines sentences for reasonableness, there is a nonbinding rebuttable presumption of proportionality that the defendant bears the burden of rebutting. Posey, 512 Mich at 360 (Justice Welch agreed with this remedy).

Note that if the trial court declines to impose an intermediate sanction under MCL 769.34(4)(a) and instead imposes a prison sentence that is within the recommended minimum sentencing range, the prison sentence “is within the range authorized by law.” People v Schrauben, 314 Mich App 181, 195-196 (2016), overruled in part on other grounds by People v Posey, 512 Mich 317, 326 (2023).¹³ “In accordance with the broad language of [People v Lockridge, 498 Mich 358, 365 n 1, 391 (2015)], under [MCL 769.34(4)(a)], a trial court may, but is no longer required to, impose an intermediate sanction if the upper limit of the recommended minimum sentence range is 18 months or less.” Schrauben, 314 Mich App at 195. Accordingly, these sentences are reviewed for reasonableness and subject to a presumption of proportionality. Posey, 512 Mich at 359.

“To ignore [a] meritorious sentencing argument based on [a] defendant’s label for his timely motion would [erroneously] exalt form over substance.” People v Pointer-Bey, 321 Mich App 609, 620 n 3 (2017) (“[a]lthough defendant did not title his motion in the trial court as one for resentencing or to correct an invalid sentence under MCR 6.429, he plainly argued that he was not subject to enhanced sentencing,” and he was entitled to have his invalid sentence corrected).

“[W]hen the request to remand will not be ripe for review until after the Court of Appeals has adjudicated the merits, the mandate of a proper motion in MCL 769.34(10) is met when a defendant makes a request to remand for resentencing with supporting grounds within his appellate brief.” People v Jackson (Leonard), 487 Mich 783, 800 (2010).

Where the prosecution agreed to recommend a sentence within a certain minimum-sentence range, but the defendant did not agree to a specific sentence range, “the defendant did not bind himself to a particular guidelines range as part of his plea agreement and did not waive his challenges to the offense variable scoring.” People v Osborne, 494 Mich 861, 861 (2013).

Resentencing is not required “[w]here a scoring error does not alter the appropriate guidelines range,” or “[w]here the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.” People v Francisco, 474 Mich 82, 89 n 8 (2006). However, note that under Posey, a defendant who argues that their sentence is disproportionate is entitled to review subject to a rebuttable presumption of proportionality. Posey, 512 Mich at 359-361 (severing the first sentence of MCL 769.34(10) that required appellate courts to affirm within-guidelines sentences).¹⁴

2.Sentences Outside the Guidelines Range¹⁵

Resentencing is required when a scoring error alters the appropriate guidelines range, even if the initial sentence falls within the corrected range, because if resentencing does not occur, “the defendant will have been given a sentence which stands differently in relationship to the correct guidelines range than may have been the trial court’s intention.” People v Francisco, 474 Mich 82, 89-92 (2006). “[R]equiring resentencing in such circumstances  . . . respects the defendant’s right to be sentenced on the basis of the law, [as well as] the trial court’s interest in having defendant serve the sentence that it truly intends.” Id. at 92. See also People v Biddles, 316 Mich App 148, 156 (2016) (noting that a defendant who raises a successful evidentiary challenge to the scoring of the variables, resulting in an alteration of the minimum sentence range, is entitled to resentencing under Francisco, 474 Mich at 89).

MCL 769.34(7) and MCR 6.425(F)(5) authorize defendants to appeal a sentence outside the guidelines range on that basis alone. See also People v Kimble (Richard), 470 Mich 305, 310 (2004) (holding that “a sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand”). However, unlike MCL 769.34(10) and MCR 6.429(C) (provisions applicable to appealing sentences within the guidelines), MCL 769.34(7) and MCR 6.425(F)(5), the provisions governing appeals of sentences outside the guidelines, make no mention of preservation requirements. Although the language used in MCL 769.34(7) and MCR 6.425(F)(5) is not identical, they are substantially similar and neither one requires something the other does not:

“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.” MCL 769.34(7).

“When imposing sentence in a case in which sentencing guidelines enacted in . . . MCL 777.1 et seq., are applicable, if the court imposes a minimum sentence that is longer or more severe than the range provided by the sentencing guidelines, the court must advise the defendant on the record and in writing that the defendant may seek appellate review of the sentence, by right if the conviction followed trial or by application if the conviction entered by plea, on the ground that it is longer or more severe than the range provided by the sentencing guidelines.” MCR 6.425(F)(5).

The Court of Appeals ordered the trial court to remove a condition that “broadly prohibit[ed] contact with all individuals outside of prison, with the sole exception of legal counsel . . . .” People v Lafey, ___ Mich App ___, ___(2024). “‘A judge of a court having jurisdiction may pronounce judgment against and pass sentence upon a person convicted of an offense in that court.’” Lafey, ___ Mich App at ___, quoting MCL 769.1(1). However, “[t]he sentence shall not exceed the sentence prescribed by law.” Lafey, ___ Mich App at ___. While “a trial court possesses statutory authority to impose a limited no-contact order in certain circumstances,” the Court stated it was not aware of any “broad statute prohibiting contact to the entire world, excluding an attorney, outside of the confines of the four walls of a prison.” Id. at ___ n 11.

Waiver. “[P]ursuant to MCL 769.34(10) and [Kimble (Richard), 470 Mich at 310-312],” a defendant whose sentence is outside the appropriate guidelines range “is entitled to appeal the matter unless he is deemed to have waived the error at sentencing.” People v Hershey, 303 Mich App 330, 349 (2013). “[T]here are no ‘magic words’ that constitute a waiver, and . . . a waiver analysis should consider the entire context of a defendant’s conduct concerning a purportedly waived issue to determine whether the defendant, in fact, intentionally relinquished a known right.” Id. at 350.

3.Scoring Error and Departure Sentence

As a matter of law, “[i]n cases . . . that involve a minimum sentence that is an upward departure, a defendant necessarily cannot show plain error because the sentencing court has already clearly exercised its discretion to impose a harsher sentence than allowed by the guidelines and expressed its reasons for doing so on the record.” People v Lockridge, 498 Mich 358, 395 n 31 (2015). See also People v Steanhouse (Steanhouse II), 500 Mich 453, 475 (2017) (holding that “departure sentences [are exempted] from [the Crosby] remand procedure, at least for cases in which the error was unpreserved, because a defendant who [has] received an upward departure [cannot] show prejudice resulting from the constraint on the trial court’s sentencing discretion”); People v Ambrose, 317 Mich App 556, 565 (2016) (even assuming an error in scoring the guidelines, the defendant was not entitled to resentencing where a departure sentence was imposed and reasonable “[i]n light of the facts of [the] case, the trial court’s lengthy articulation of its reasons for departing from the guidelines, and the minor extent of the departure”).

The trial court must actually score the guidelines before imposing a departure sentence. See People v Geddert, 500 Mich 859, 859 (2016) (stating “the scoring of the guidelines themselves is mandatory”). Where the trial court failed to score points for any offense variables but departed from the guidelines range in part on the basis of conduct that should have been scored under OV 13, resentencing was required under People v Francisco, 474 Mich 82 (2006); “[e]ven though the guidelines ranges are now advisory[ under Lockridge, 498 Mich 358],” resentencing was required “[b]ecause correcting the OV score would change the applicable guidelines range[.]” Geddert, 500 Mich at 859.

4.Constitutional Errors in Calculating Guidelines Scores

In 2015, the Michigan Supreme Court, applying Alleyne v United States, 570 US 99 (2013), and Apprendi v New Jersey, 530 US 466 (2000), held that “Michigan’s sentencing guidelines . . . [are] constitutionally deficient . . . [to] the extent [that they] . . . require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range[.]” People v Lockridge, 498 Mich 358, 364, 399 2015), rev’g in part 304 Mich App 278 (2014) and overruling People v Herron, 303 Mich App 392 (2013). “To remedy the constitutional violation,” the Lockridge Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory” and “[struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3),” further holding that although “a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence,” the legislative sentencing guidelines “are advisory only.” Lockridge, 498 Mich at 364-365, 391, 399, citing United States v Booker, 543 US 220, 233, 264 (2005) (emphasis added). Subsequently, MCL 769.34 was amended to omit the substantial and compelling language and to explicitly provide for reasonable departures. See 2020 PA 395, effective March 24, 2021.

A defendant raising a constitutional guidelines-scoring error based on Lockridge may be entitled to resentencing. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 5 for discussion of appellate review of felony sentences, and specifically, review of claims of constitutional guidelines-scoring error under Lockridge.