For felony convictions listed in MCL 777.11 through MCL 777.19 that occur on or after January 1, 1999, the statutory sentencing guidelines require a sentencing court to calculate the appropriate minimum sentence range under the version of the guidelines in effect at the time the crime was committed. MCL 769.34(2).1 Previously, sentencing courts were generally required to either impose a minimum sentence within the appropriate minimum range as calculated under the sentencing guidelines, MCL 769.34(2), or to articulate “a substantial and compelling reason” to depart from that range, former MCL 769.34(3). However, in 2015, the Michigan Supreme Court rendered the previously-mandatory sentencing guidelines “advisory only.” People v Lockridge, 498 Mich 358, 365, 399 (2015).2 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).”3 Lockridge, 498 Mich at 391. 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. Accordingly, “the sentencing court may exercise its discretion to depart from [the applicable] guidelines range without articulating substantial and compelling reasons for doing so.” Id. at 392. However, sentencing courts are required to articulate both the justification for an out-of-guidelines sentence and the justification for the extent of the departure itself. People v Steanhouse (On Remand) (Steanhouse III), 322 Mich App 233, 239 (2017) (“An appellate court must evaluate whether reasons exist to depart from the sentencing guidelines and whether the extent of the departure can satisfy the principle of proportionality”), vacated in part 504 Mich 969 (2019).4
Although “sentencing courts [are no longer] bound by the applicable sentencing guidelines range,” they must “continue to consult the applicable guidelines range and take it into account when imposing a sentence,” and they “must justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392. Further, note that because the guidelines are advisory only, sentencing courts are permitted to engage in judicial fact-finding when scoring the sentencing guidelines.5 People v Biddles, 316 Mich App 148, 159-160 (2016).
1 Note that the advisory sentencing guidelines also apply to sentences imposed after a probation violation. People v Hendrick, 472 Mich 555, 557 (2005) (noting guidelines apply “even if the sentence follows the imposition and revocation of probation”).
2 The Lockridge decision is discussed in detail in Section 1.4.
3 The Lockridge Court also stated that “[t]o the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary.” Lockridge, 498 Mich at 365 n 1.
4 For more information on the precedential value of an opinion with negative subsequent history, see our note.
5 For a detailed discussion of scoring the advisory sentencing guidelines, see Chapter 2.