1.4Sentencing Before and After Lockridge

In 2015, the Michigan Supreme Court rendered the previously-mandatory sentencing guidelines “advisory only.” People v Lockridge, 498 Mich 358, 365 (2015). The following discussion aims to provide a historical backdrop for this conclusion and a detailed discussion of how courts are required to use the sentencing guidelines in imposing sentences post-Lockridge. See also the Michigan Judicial Institute’s Lockridge flowchart.

A.How Michigan’s Sentencing Scheme Was Justified Under Apprendi and Alleyne Before the Lockridge Decision

Under the Sixth Amendment, “[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.” Apprendi v New Jersey, 530 US 466, 490 (2000); see also Blakely v Washington, 542 US 296, 303-304 (2004). In Alleyne v United States, 570 US 99, 112 (2013), the United States Supreme Court extended the Apprendi/Blakely rule to “mandatory minimum” sentences, overruling Harris v United States, 536 US 545 (2002), and holding that “a fact increasing either end of [a sentencing] range produces a new penalty and constitutes an ingredient of the offense.” Additionally, in United States v Booker, 543 US 220, 226, 245, 259 (2005), the United States Supreme Court held that the mandatory federal sentencing guidelines violated the Sixth Amendment under Apprendi and Blakely; as a remedy, two provisions of the federal guidelines were invalidated,¹ and the guidelines were rendered advisory rather than mandatory.

In caselaw that preceded Alleyne, 570 US 99, the Michigan Supreme Court concluded that the Apprendi/Blakely rule was inapplicable to Michigan’s “indeterminate” sentencing scheme. See People v Drohan, 475 Mich 140, 163-164 (2006) (defining indeterminate as a sentence of unspecified duration), abrogated in part as recognized by People v Lockridge, 498 Mich 358, 378-379 (2015). Noting that “Blakely[, 542 US 296,] applies only to bar the use of judicially ascertained facts to impose a sentence beyond that permitted by the jury’s verdict” and that “a Michigan trial court may not impose a sentence greater than the statutory maximum,” the Drohan Court concluded that “the trial court’s power to impose a sentence is always derived from the jury’s verdict, because the ‘maximum-minimum’ sentence will always fall within the range authorized by the jury’s verdict”; accordingly, “[a]s long as the defendant receives a sentence within [the] statutory maximum, a trial court may utilize judicially ascertained facts to fashion a sentence within the range authorized by the jury’s verdict.” Drohan, 475 Mich at 160-161, 164 (citations omitted).

In People v Herron, 303 Mich App 392, 403-404 (2013), rev’d in part 498 Mich 901 (2015) and overruled by Lockridge, 498 Mich at 399,² the Court of Appeals rejected the defendant’s challenge to the scoring of the sentencing guidelines on the basis of Alleyne, 570 US at 99. The Herron Court concluded that “[w]hile judicial fact-finding in scoring the sentencing guidelines produces a recommended range for the minimum sentence of an indeterminate sentence, the maximum of which is set by law, Drohan, 475 Mich at 164, it does not establish a mandatory minimum; therefore, the exercise of judicial discretion guided by the sentencing guidelines scored through judicial fact-finding does not violate due process or the Sixth Amendment’s right to a jury trial.” Herron, 303 Mich App at 403-404, citing Alleyne, 570 US at 116, 116 n 6. The Court explained:

“[J]udicial fact-finding to score Michigan’s sentencing guidelines falls within the ‘“wide discretion”’ accorded a sentencing court ‘“in the sources and types of evidence used to assist [the court] in determining the kind and extent of punishment to be imposed within limits fixed by law[.]”’ Michigan’s sentencing guidelines are within the ‘broad sentencing discretion, informed by judicial factfinding, [that] does not violate the Sixth Amendment.’” Herron, 303 Mich App at 405, quoting Alleyne, 570 US at 116, 128 (alterations in original; internal citation omitted).

B.Lockridge and Remedy for Alleyne Violation

In People v Lockridge, 304 Mich App 278, 284 (2014), rev’d in part 498 Mich 358 (2015),³ the Court of Appeals applied People v Herron, 303 Mich App 392 (2013), and rejected the defendant’s Alleyne⁴ challenge to the scoring of the guidelines. However, two judges on the Lockridge panel filed concurring opinions indicating that they disagreed with the analysis in Herron, 303 Mich App 392. Judge Beckering opined that Alleyne, 570 US 99, “renders Michigan’s indeterminate sentencing scheme unconstitutional,” and that the appropriate remedy “would [be to] make the sentencing guidelines in Michigan advisory as the United States Supreme Court did with the federal sentencing guidelines in [United States v Booker, 543 US 220 (2005)].” Lockridge, 304 Mich App at 285-286 (Beckering, P.J., concurring). Judge Shapiro agreed with Judge Beckering that Herron, 303 Mich App 392, “[did] not comport with the constitutional mandate of Alleyne[, 570 US 99,]” but only to the extent “that fact-finding is used to set a sentencing ‘floor,’ i.e., a mandatory minimum”; therefore, Judge Shapiro would have made “only the lower end of a range . . . advisory only.” Lockridge, 304 Mich App at 311, 315-316 (Shapiro, J., concurring).

The Michigan Supreme Court reversed, in part, the judgment of the Court of Appeals, 304 Mich App 278, and overruled Herron, 303 Mich App 392, holding that “[b]ecause Michigan’s sentencing guidelines scheme allows judges to find by a preponderance of the evidence facts that are then used to compel an increase in the mandatory minimum punishment a defendant receives, it violates the Sixth Amendment to the United States Constitution under Alleyne.” Lockridge, 498 Mich at 383, 399 (additionally noting that “[b]ecause Michigan’s sentencing scheme is not ‘indeterminate’ as that term has been used by the United States Supreme Court, [it] cannot be exempt from the Apprendi^[5] and Alleyne rule on that basis”).⁶

“To remedy the constitutional flaw in the guidelines,” 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).” Lockridge, 498 Mich at 391, 399. 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. The Court further held, in accordance with Booker, 543 US at 233, 264, 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.” Lockridge, 498 Mich at 365, 399.

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.

C.Imposing a Sentence Under the Post-Lockridge Advisory Guidelines

“[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., citing People v Coles, 417 Mich 523, 549 (1983), overruled in part on other grounds by People v Milbourn, 435 Mich 630, 644 (1990).⁷ The Lockridge Court specifically noted that its holding “[did] nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not.” Lockridge, 498 Mich at 392 n 28, citing MCL 777.21(1)(a); MCL 777.31(1); MCL 777.32(1).

Under Lockridge, 498 Mich 358, “the Legislative sentencing guidelines are advisory in every case, regardless of whether the case involves judicial fact-finding”; the Lockridge Court “drew no distinction between cases that applied judge-found facts and cases that did not.” People v Rice, 318 Mich App 688, 690, 692 (2017) (holding that where the guidelines were scored without judicial factfinding and the trial court departed downward, the trial court properly treated the guidelines as advisory and properly rejected the prosecution’s argument “that the trial court was mandated to apply the sentencing guidelines . . . because [the] case did not involve constitutionally impermissible judicial fact-finding”). See also People v Steanhouse (Steanhouse II), 500 Mich 453, 466 (2017) (“reaffirm[ing] Lockridge’s remedial holding rendering the guidelines advisory in all applications”).

“When a defendant’s sentence is calculated using a guidelines minimum sentence range in which OVs have been scored on the basis of facts not admitted by the defendant^[8] or found beyond a reasonable doubt by the jury, the sentencing court may exercise its discretion to depart from that guidelines range without articulating substantial and compelling reasons for doing so.”⁹ Lockridge, 498 Mich at 391-392. However, the trial court must score the now-advisory guidelines before imposing a departure sentence.¹⁰ People v Geddert, 500 Mich 859, 859 (2016). See also Steanhouse II, 500 Mich at 474-475 (“repeat[ing the] directive from Lockridge[, 498 Mich at 391,] that the guidelines remain a highly relevant consideration in a trial court’s exercise of sentencing discretion’ that trial courts must consult and take . . . into account when sentencing”) (quotation marks and citations omitted).

“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 Booker, 543 US at 261. See also MCL 769.34(3) (court may depart from guidelines range “if the departure is reasonable and the court states on the record the reasons for departure”). “[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the ‘principle of proportionality’ set forth in People v Milbourn, [435 Mich 630, 636 (1990)], [and reaffirmed in People v Babcock, 469 Mich 247 (2003), and People v Smith, 482 Mich 292, 304-305 (2008),] ‘which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.’” Steanhouse II, 500 Mich at 459-460, 473, aff’g in part and rev’g in part 313 Mich App 1 (2015). Further, the reasonableness of a trial court’s sentence is reviewed for an abuse of discretion. Steanhouse II, 500 Mich at 459-460.

See Chapter 5 for a discussion of appellate review of sentence departures and a discussion of appellate review of sentences in cases that have been held in abeyance for Lockridge, 498 Mich 358.