6.12Consecutive Sentencing¹

Sentences run concurrently unless otherwise indicated; consecutive sentences may not be imposed unless expressly authorized by law. Gonzalez, 256 Mich App at 229. A trial court’s decision to impose a discretionary consecutive sentence is reviewed for an abuse of discretion. People v Norfleet, 317 Mich App 649, 654 (2016). A trial court abuses its discretion when its decision is “outside the range of reasonable and principled outcomes. Id. “[T]rial courts imposing one or more discretionary consecutive sentences are required to articulate on the record reasons for each consecutive sentence imposed.” Id. 

“To allow for meaningful appellate review, the trial court is required to state on the record its reasoning for each consecutive sentence it imposes.” People v Wisniewski, ___ Mich App ___, ___ (2025). “Under MCL 750.520b(3), the trial court is authorized to impose a consecutive sentence for defendant’s conviction of CSC-I.” Wisniewski, ___ Mich App at ___. However, “[t]he trial court is obligated to identify ‘particularized reasons,’ referring to the specific offenses and the defendant, for imposing a sentence under MCL 750.520b(3) consecutively to another sentence.” Wisniewski, ___ Mich App at ___, quoting Norfleet, 317 Mich App at 666. In Wisniewski, “[d]uring sentencing, the trial court referred to the specific offenses and defendant, and set forth particularized reasons for its decision.” Wisniewski, ___ Mich App at ___. “For example, the trial court noted that [two of the victims] considered defendant to be ‘a second father,’ and to all of the complainants, he was close enough to be considered a member of the family.” Id. at ___. “The trial court characterized this case as evidencing an ‘extraordinary breach of trust,’ in which defendant repeatedly manipulated very young children to satisfy his own sexual needs.” Id. at ___. “Additionally, defendant’s actions ‘deeply impacted’ the complainants on an emotional and psychological level, which put them at risk for the rest of their lives.” Id. at ___. “The trial court . . . also described defendant’s actions as placing each complainant in a prison for the rest of their lives because of the harm caused by the sexual abuse.” Id. at ___. “Given the trial court’s thorough and detailed reasoning with respect to the imposition of the consecutive sentences for Counts 1 and 2, defendant’s claim that the trial court abused its discretion [was] unavailing.” Id. at ___. Further, “the effective 50-year minimum term that defendant received for Counts 1 and 2 resulting from the consecutive sentencing was reasonable and proportionate and therefore did not constitute an abuse of discretion.” Id. at ___. “[B]ecause the aggregate of defendant’s consecutive sentences [did] not exceed the maximum punishment for CSC-I, defendant’s contention that he received a disproportionate sentence [was] not persuasive.” Id. at ___.

A.Aiding and Abetting

Under MCL 767.39, a person convicted of aiding and abetting a controlled substance offense must be punished as if he or she directly committed the offense charged; thus, aiding and abetting a controlled substance offense is subject to the same consecutive sentencing provisions prescribed for conviction of the underlying offense.²

B.Conspiracy

An offender convicted of conspiracy to commit an offense punishable by more than one year imprisonment under MCL 750.157a(a) must be “punished by a penalty equal to that” authorized for conviction of the offense the offender conspired to commit.³ Because a consecutive sentencing provision is a penalty, any consecutive sentencing provisions regarding the conspired offense also apply to a conspiracy conviction. People v Denio, 454 Mich 691, 703 (1997) (the defendant’s sentence for conspiracy to violate MCL 333.7401(2)(a)(iv) was properly made consecutive to his sentence for conspiracy to deliver marijuana).

C.Major Controlled Substance Offenses

If a defendant commits a major controlled substance offense⁴ while the disposition of another felony offense is pending, consecutive sentencing is mandatory “upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent offense[.]” MCL 768.7b(2)(b). A felony is pending disposition for purposes of consecutive sentencing “if the second offense is committed at a time when a warrant has been issued in the original offense and the defendant has notice that the authorities are seeking him [or her] with regard to that specific criminal episode.” People v Waterman, 140 Mich App 652, 654-655 (1985) (the defendant left Michigan after he was told that the police were looking for him and a warrant had issued by the time of his arrest for the subsequent offense). See also People v Henry, 107 Mich App 632, 637 (1981) (a felony charge was not pending disposition where a warrant had been issued for the defendant’s first offense, but the defendant was unaware that his conduct was the subject of a criminal prosecution).

“A charge remains ‘pending’ for the purposes of [MCL 768.7b] ‘until a defendant is sentenced on the conviction arising out of the first offense and until the original charge arising out of the first offense is dismissed.’” People v Morris, 450 Mich 316, 330-331 (1995), quoting People v Smith (Timothy), 423 Mich 427, 452 (1985). Accordingly, consecutive sentencing is required “where a defendant commits a major controlled substance offense after being charged, but before being sentenced for a prior felony.” Morris, 450 Mich at 331. A felony charge is no longer pending if probation is imposed following conviction of the charge. People v Malone, 177 Mich App 393, 401 (1989). See also People v Hardy (Eddie), 212 Mich App 318, 322 (1995).

The nature of the offense for which an offender is ultimately convicted has no effect on the nature of the offense when it is pending disposition. People v Ackels, 190 Mich App 30, 32-34 (1991). For purposes of MCL 768.7b, consecutive sentencing is mandatory when an offender commits a felony while another felony charge is pending. Ackels, 190 Mich App at 34. That the pending felony is ultimately disposed of as a misdemeanor or lesser offense of the original felony charge has no effect on the consecutive sentencing mandate of MCL 768.7b. Ackels, 190 Mich App at 33-34.

A sentence imposed for a controlled substance offense under MCL 333.7401(2)(a), a major controlled substance offense under MCL 761.2(a), may be made consecutive to any sentence imposed for the commission of another felony. MCL 333.7401(3).⁵ “[T]he term ‘another felony’ as used in [MCL 333.7401(3)] includes any felony for which the defendant has been sentenced either before or simultaneously with the controlled substance felony enumerated in [MCL 333.7401(3)] for which a defendant is currently being sentenced. The phrase applies to felonies violative of any provision of the controlled substances act [now Article 7 of the PHC], including additional violations of the same controlled substance provision as that for which the defendant is being sentenced, or any other felony. Further, sentences imposed in the same sentencing proceeding are assumed, for the purposes of [MCL 333.7401(3)], to be imposed simultaneously. Therefore, where any of the felonies for which a defendant is being sentenced in the same proceeding are covered by the mandatory consecutive sentencing provision of [MCL 333.7401(3)], the sentence for that felony must be imposed to run consecutively with the term of imprisonment imposed for other felonies.” People v Morris, 450 Mich 316, 320 (1995).

“[T]he trial court abused its discretion by failing to adequately explain its decision to impose discretionary consecutive sentences for [defendant’s] fentanyl conviction (Count 1) and [defendant’s] imitation-controlled-substance conviction (Count 2) under MCL 768.7b(2). People v Hines, ___ Mich App ___, ___ (2025). “‘In Michigan concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.’” Id. at ___, quoting People v Baskerville, 333 Mich App 276, 289 (2020). “At the time of the instant offenses, [defendant] was on bond in connection with additional drug charges arising from his criminal activities in early 2020.” Hines, ___ Mich App at ___. Defendant “acknowledge[d] that his . . . convictions were subject to discretionary consecutive sentences pursuant to MCL 768.7b(2)(a) because he committed those felonies while the 2020 felony charges were pending.” Hines, ___ Mich App at ___. However, defendant argued that “he should be resentenced because the trial court did not adequately explain its reasons for ordering that [his current] convictions be served consecutive to his sentences for the 2020 convictions.” Id. at ___. The Hines Court applied People v Norfleet, 317 Mich App 649, 665 (2016), noting that “the trial court was required to articulate its reasons for ordering each consecutive sentence.” Hines, ___ Mich App at ___. Here, “[t]he trial court’s reference to [defendant’s] criminal history and parole status were mentioned in the context of its discretion to double [defendant’s] authorized terms of imprisonment under MCL 333.7413, and there [was] no indication that it applied the same reasoning to the discretionary consecutive sentences imposed under MCL 768.7b(2)(a).” Hines, ___ Mich App at ___. “The failure to state its reasoning for imposing a discretionary consecutive sentence amounted to an abuse of discretion.” Id. at ___. Therefore, the Hines Court remanded the matter “to allow the trial court to articulate its rationale for imposing consecutive sentences . . . .” Id. at ___.

D.Manufacture, Creation, Delivery, or Possession with Intent to Manufacture, Create, or Deliver Offenses

“A term of imprisonment imposed under [MCL 333.7401(2)(a)] may be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.” MCL 333.7401(3).

“[A]lthough the combined term [resulting from the imposition of consecutive sentences] is not itself subject to a proportionality review,” “[t]he decision as to each consecutive sentence is its own discretionary act and must be separately justified on the record[;] . . . [w]hile imposition of more than one consecutive sentence may be justified in an extraordinary case, trial courts must nevertheless articulate their rationale for the imposition of each such sentence so as to allow appellate review.” Norfleet, 317 Mich App at 664-666. Where “the trial court spoke only in general terms[,] stating that it took into account defendant’s ‘background, his history, [and] the nature of the offenses involved[,]’” and failed to give particularized reasons for imposing five consecutive sentences for drug offenses under MCL 333.7401(2)(a)(iv), it was necessary to remand the case “so that the trial court [could] fully articulate its rationale for each consecutive sentence imposed[,]” “with reference to the specific offenses and the defendant.” Norfleet, 317 Mich App at 666 (third alteration in original).

After remand “to properly articulate its rationale for imposing [multiple] consecutive sentences[]” for five drug convictions under MCL 333.7401, the trial court properly ordered one of the sentences to be served consecutively and ordered the remaining sentences to be served concurrently; “[t]he trial court properly recognized that it could not impose multiple consecutive sentences as a single act of discretion” and appropriately concluded that the single consecutive sentence was justified on grounds including “defendant’s extensive violent criminal history, multiple failures to rehabilitate, and the manipulation of several less culpable individuals in his ongoing criminal operation.” People v Norfleet (After Remand), 321 Mich App 68, 73 (2017). See also People v Hines, ___ Mich App ___, ___ (2025) (holding that “[t]he trial court abused its discretion by failing to adequately explain its decision to impose discretionary consecutive sentences for [defendant’s] fentanyl conviction (Count 1) and [defendant’s] imitation-controlled-substance conviction (Count 2) under MCL 768.7b(2)).

For purposes of consecutive sentencing, a “term of imprisonment,” as that term is used in MCL 333.7401(3), includes a defendant’s jail sentence. People v Spann, 250 Mich App 527, 532-533 (2002) (Spann I), aff’d 469 Mich 904, 905 (2003) (Spann II). In affirming, the Court noted the Legislature uses the term “imprisonment” to refer to both confinement in prison and confinement in jail. Spann II, 469 Mich at 904, citing MCL 769.28, MCL 35.403, MCL 66.8, and MCL 430.55 (noting that the term “imprisonment” is not ambiguous). add to CSBB

MCL 333.7401(3) does not draw any distinction “between an original sentence and a sentence imposed on resentencing,” and “[t]he only relevant inquiry under the statute is whether, at the time of sentencing for the enumerated offense, the defendant has already been sentenced for another felony.” People v Lee, 233 Mich App 403, 406-407 (1999).

E.Other Offenses Committed While Prior Felony is Pending

If a defendant commits an offense that is not a major controlled substance offense while the disposition of another felony offense is pending, consecutive sentencing is discretionary “upon conviction of the subsequent offense or acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent offense[.]” MCL 768.7b(2)(b). The discretionary authority to impose consecutive sentences granted by MCL 768.7b(2)(a) applies only to the “last in time” sentencing court. People v Chambers, 430 Mich 217, 230-231 (1988).

[LP: COPIED AND PASTED FROM CHAPTER 2.]“[T]he trial court abused its discretion by failing to adequately explain its decision to impose discretionary consecutive sentences for [defendant’s] fentanyl conviction (Count 1) and [defendant’s] imitation-controlled-substance conviction (Count 2) under MCL 768.7b(2). People v Hines, ___ Mich App ___, ___ (2025). “‘In Michigan concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.’” Id. at ___, quoting People v Baskerville, 333 Mich App 276, 289 (2020). “At the time of the instant offenses, [defendant] was on bond in connection with additional drug charges arising from his criminal activities in early 2020.” Hines, ___ Mich App at ___. Defendant “acknowledge[d] that his . . . convictions were subject to discretionary consecutive sentences pursuant to MCL 768.7b(2)(a) because he committed those felonies while the 2020 felony charges were pending.” Hines, ___ Mich App at ___. However, defendant argued that “he should be resentenced because the trial court did not adequately explain its reasons for ordering that [his current] convictions be served consecutive to his sentences for the 2020 convictions.” Id. at ___. The Hines Court applied People v Norfleet, 317 Mich App 649, 665 (2016), noting that “the trial court was required to articulate its reasons for ordering each consecutive sentence.” Hines, ___ Mich App at ___. Here, “[t]he trial court’s reference to [defendant’s] criminal history and parole status were mentioned in the context of its discretion to double [defendant’s] authorized terms of imprisonment under MCL 333.7413, and there [was] no indication that it applied the same reasoning to the discretionary consecutive sentences imposed under MCL 768.7b(2)(a).” Hines, ___ Mich App at ___. “The failure to state its reasoning for imposing a discretionary consecutive sentence amounted to an abuse of discretion.” Id. at ___. Therefore, the Hines Court remanded the matter “to allow the trial court to articulate its rationale for imposing consecutive sentences . . . .” Id. at ___.

F.Public Health Code Misdemeanors

For purposes of the Code of Criminal Procedure, misdemeanors punishable by more than one year (“two-year misdemeanors”) are felonies for purposes of consecutive sentencing. People v Smith (Timothy), 423 Mich 427, 434 (1985). See also People v Washington, 501 Mich 342, 347 (2018) (stating, in the context of determining whether a prior misdemeanor conviction under the Public Health Code constituted a felony for purposes of serving as a predicate felony for the defendant’s felony-firearm conviction under the Penal Code, that “[a]lthough the Legislature intended the offense of keeping or maintaining a drug house to be a misdemeanor for purposes of the Public Health Code, that offense is punishable by imprisonment in a state prison, and, therefore, it unquestionably satisfies the definition of ‘felony’ in the Penal Code”; “an offense expressly labeled a misdemeanor in one code does not necessarily mean the same offense is a misdemeanor for purposes of interpreting and applying a different code”).

However, for purposes of the PHC, offenses “expressly designated” as misdemeanors retain their character as misdemeanors without regard to the length of incarceration possible for conviction of the offense. People v Wyrick, 474 Mich 947 (2005) (even though punishable by not more than 2 years of imprisonment, misdemeanor possession of marijuana, second offense, does not constitute a felony for purposes of the consecutive sentencing provision in MCL 333.7401(3)). This case is distinguishable from Washington in that Wyrick “involved a sentence-enhancement statute and an underlying offense that were both located in the Public Health Code.” Washington, 501 Mich at 361 n 47.

G.Violations Arising Out of the Same Transaction As The Sentencing Offense

A court is authorized to order that a sentence of imprisonment imposed for a conviction under MCL 333.7401c be consecutive to a sentence imposed for any other offense arising out of the same transaction as the sentencing offense. MCL 333.7401c(5).⁶