6.4Sentencing Principles

When sentencing a defendant, the trial court’s objective is to tailor a penalty that is appropriate to the seriousness of the offense and the criminal history of the offender. People v Rice (On Remand), 235 Mich App 429, 445 (1999). The “framework” of an appropriate sentence consists of four basic considerations:

•the likelihood or potential that the offender could be reformed;

•the need to protect society;

•the penalty or consequence appropriate to the offender’s conduct; and

•the goal of deterring others from similar conduct. Rice, 235 Mich App at 446, citing People v Snow, 386 Mich 586, 592 (1972).

A.Misdemeanor Sentencing

“There is a rebuttable presumption that the court shall sentence an individual convicted of a misdemeanor, other than a serious misdemeanor, with a fine, community service, or other nonjail or nonprobation sentence.” MCL 769.5(3).

“The court may depart from the presumption under [MCL 769.5(3)] if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.” MCL 769.5(4).

“Subject to MCL 769.5(3), if a statute provides that an offense is punishable by imprisonment and a fine, the court may impose imprisonment without the fine or the fine without imprisonment.” MCL 769.5(1). “Subject to MCL 769.5(3), if a statute provides that an offense is punishable by fine or imprisonment, the court may impose both the fine and imprisonment in its discretion.” MCL 769.5(2).

“[U]nder MCL 769.5(4), a court imposing a sentence for an ordinary misdemeanor conviction remains free to depart from the presumption in MCL 769.5(4) ‘if the court finds reasonable grounds for the departure and states on the record the grounds for the departure.’” People of the City of Auburn Hills v Mason, ___ Mich App ___, ___ (2024), quoting MCL 769.5(4). “When reviewing a sentence that constitutes a departure from the recommended minimum guidelines range, the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.” Mason, ___ Mich App at ___ (cleaned up).“The pertinent question is not whether defendant’s sentence departed from the rebuttable presumption that a non-jail or non-probation sentence is a proportionate sentence for an ordinary misdemeanor.” Id. at ___. “Instead, the question is whether the sentence is proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at ___ (quotation marks and citation omitted). Here, “the [district] court did not adequately justify the imposed sentence,” because it “did not consider the circumstances of the offense and did not explain how its departure sentence was more proportionate than a different sentence would have been.” Id. at ___.

B.Felony Sentencing¹

“[T]he minimum sentence imposed by a court  . . . for a felony [to which the statutory sentencing guidelines apply, enumerated in part 2 of Chapter XVII of the Code of Criminal Procedure, MCL 777.11 et seq.,] committed on or after January 1, 1999 may be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.” MCL 769.34(2).

“[S]entencing courts [are no longer] bound by the applicable sentencing guidelines range[.]” People v Lockridge, 498 Mich 358, 392 (2015). “Sentencing courts must, however, 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.” Id. (citation omitted).

1.Calculating the Minimum Sentence Range

The recommended minimum sentence range for an offense to which the sentencing guidelines apply is determined by scoring the appropriate offense variables (OVs) and prior record variables (PRVs) for a specific conviction. MCL 777.21. All felony offenses to which the sentencing guidelines apply fall into one of six offense categories² and each offense category is further organized into an offense class³ that indicates the severity of the offense. See MCL 777.5 and MCL 777.21(1)(c). An offense’s crime class determines which sentencing grid must be used when determining an offender’s recommended minimum sentence range. See MCL 777.61 to MCL 777.69. The crime group an offense falls into dictates which OVs must be scored for that offense and how those variables must be scored.⁴ People v Bonilla-Machado, 489 Mich 412, 422 (2011). The offenses discussed in this benchbook are found primarily in the controlled substance crime group, but some offenses that involve controlled substance offenses are placed in the public safety, public trust, and person crime groups.⁵

a.Scoring Offense Variables (OVs): Controlled Substance Crime Group

“For all crimes involving a controlled substance, score [OVs] 1, 2, 3, 12, 13, 14, 15, 19, and 20.” MCL 777.22(3).

Of the OVs scored for controlled substance crimes, OV 15 is the only offense variable that is uniquely scored only for controlled substance offenses. OV 15 covers aggravated controlled substance offenses, and assigns points on the basis of the grams of a substance involved in the particular crime and on other aggravating circumstances such as the involvement of a minor, the location of the offense, and trafficking. MCL 777.45.⁶

b.Scoring Offense Variables (OVs): Other Crime Groups⁷

Person. “For all crimes against a person, score [OVs] 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 19, and 20.”⁸ MCL 777.22(1).

Public Trust. “For all crimes against . . . public trust, score [OVs] 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20.” MCL 777.22(4).

Public Safety. “For all crimes against public safety, score [OVs] 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20.” MCL 777.22(5).

c.Scoring Prior Record Variables

The rule of Apprendi, 530 US at 490 (“[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”), does not apply to prior convictions and therefore presumably does not implicate the scoring of prior record variables under Michigan’s sentencing guidelines. See Alleyne, 570 US at 111 n 1 (noting that “[i]n Almendarez–Torres v United States, [523 US 224 (1998)], [the United States Supreme Court] recognized a narrow exception to [the] general rule [of Apprendi] for the fact of a prior conviction[;]” the Alleyne Court declined to revisit Almendarez-Torres “[b]ecause the parties [did] not contest that decision’s vitality”); see also, generally, Lockridge, 498 Mich at 370 n 12.

2.Departures

“A court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the departure is reasonable and the court states on the record the reasons for departure.” MCL 769.34(3). “A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness[, and] . . . [r]esentencing will be required when a sentence is determined to be unreasonable.” Lockridge, 498 Mich at 392, citing United States v Booker, 543 US 220, 261 (2005). “[S]entencing courts must justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392. Appellate courts review the reasonableness of a sentence for an abuse of discretion “informed by the ‘principle of proportionality’ standard” set forth in People v Milbourn, 435 Mich 630, 636 (1990). People v Steanhouse, 500 Mich 453, 476 (2017). The principle of proportionality requires “‘sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” Id., quoting Milbourn, 435 Mich at 636. See also Steanhouse, 500 Mich at 474-475, quoting Milbourn, 435 Mich at 661 (“‘the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range’”).