                                                                         Michigan Supreme Court
                                                                               Lansing, Michigan
                                                  Chief Justice: 	         Justices:



Opinion                                           Clifford W. Taylor 	     Michael F. Cavanagh
                                                                           Elizabeth A. Weaver
                                                                           Marilyn Kelly
                                                                           Maura D. Corrigan
                                                                           Robert P. Young, Jr.
                                                                           Stephen J. Markman




                                                                FILED JUNE 18, 2008

 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

 v                                                               No. 136101

 THEODORE MUTTSCHELER,

              Defendant-Appellee.



 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

 v                                                               No. 136199

 THEODORE MUTTSCHELER,

              Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 MEMORANDUM OPINION.

       In this case, we are called on to interpret the intermediate-sanction

 sentencing statute, MCL 769.34(4)(a), and decide whether a defendant whose

 recommended minimum sentence range requires the imposition of an intermediate

 sanction may be sentenced to serve time in prison, rather than jail. The Court of
Appeals held that, absent a departure supported by substantial and compelling

reasons, a trial court may not impose an indeterminate prison sentence on a

defendant for whom the sentencing guidelines require an intermediate sanction

because an “intermediate sanction does not include a prison sentence.” People v

Muttscheler (On Reconsideration), unpublished opinion per curiam of the Court of

Appeals, issued March 25, 2008 (Docket No. 275411), p 2. In lieu of granting

either the prosecution’s or defendant’s application for leave to appeal, we affirm

that judgment.

      While defendant was incarcerated in prison, guards found a crude weapon

in his cell during a routine search.    Defendant pleaded guilty of attempted

possession of a weapon by a prisoner, in exchange for the prosecution’s dismissal

of an habitual-offender notice and the imposition of a sentence within the

applicable sentencing guidelines range.      Under the guidelines, defendant’s

recommended minimum sentence range was 5 to 17 months. The trial court

sentenced him to 12 to 30 months in prison, to be served consecutively to the

sentences he was already serving.1 Defendant then moved to withdraw his plea,



      1
          Because defendant was incarcerated when he committed the offense,
MCL 768.7a(1) requires a consecutive sentence. Specifically, the relevant part of
the statute provides:
              A person who is incarcerated in a penal or reformatory
      institution in this state, or who escapes from such an institution, and
      who commits a crime during that incarceration or escape which is
      punishable by imprisonment in a penal or reformatory institution in
      this state shall, upon conviction of that crime, be sentenced as
      provided by law. The term of imprisonment imposed for the crime
                                                                      (continued…)
                                        2

but the trial court denied his motion. On leave granted, the Court of Appeals

reversed in a split decision. The Court held that defendant was entitled to an

intermediate sanction, which would at most be a jail term of no more than 12

months. Id. It remanded the case for resentencing within the guidelines, in

accordance with the plea agreement. If the trial court could not agree to that, the

Court held, defendant must be allowed to withdraw his plea. Id.

       As noted, under the sentencing guidelines, defendant’s recommended

minimum sentence range was 5 to 17 months. MCL 769.34(4)(a) provides:

               If the upper limit of the recommended minimum sentence
       range for a defendant determined under the sentencing guidelines set
       forth in chapter XVII is 18 months or less, the court shall impose an
       intermediate sanction unless the court states on the record a
       substantial and compelling reason to sentence the individual to the
       jurisdiction of the department of corrections. An intermediate
       sanction may include a jail term that does not exceed the upper limit
       of the recommended minimum sentence range or 12 months,
       whichever is less. [Emphasis added.]

       Furthermore, MCL 769.31(b) defines “intermediate sanction” as “probation

or any sanction, other than imprisonment in a state prison or state reformatory, that

may lawfully be imposed.”          The statute identifies a variety of possible

intermediate sanctions, such as community service, probation, a jail sentence, a

fine, house arrest, etc., but it unequivocally states that a prison sentence is not an

intermediate sanction. See also People v Stauffer, 465 Mich 633, 635; 640 NW2d


(…continued)
     shall begin to run at the expiration of the term or terms of
     imprisonment which the person is serving or has become liable to
     serve in a penal or reformatory institution in this state.


                                          3

869 (2002). Stauffer implies that when the guidelines require an intermediate

sanction, even if the length of the sentence does not exceed the statute’s 12-month

maximum, the sentence is an upward departure if the defendant is required to

serve it in prison, rather than in jail. Id. at 636. Accordingly, the trial court cannot

impose a prison sentence unless it identifies substantial and compelling reasons for

the departure. Id.

       The Court of Appeals correctly stated that the trial court erred by relying on

People v Weatherford, 193 Mich App 115; 483 NW2d 924 (1992). Weatherford,

predating the enactment of the legislative sentencing guidelines, was decided in

the “era” of the judicial sentencing guidelines, 1983 through 1998. See People v

Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). Because the minimum

sentence ranges recommended by the judicial guidelines were not the product of

legislative action, sentencing courts could not be required to adhere to them. Id.

Courts could sentence outside the guidelines simply by articulating a reason why

such a sentence should be imposed. Id.; Michigan Sentencing Guidelines (2d ed,

1988), p 7. Thus, what the Court of Appeals determined to be a sufficient reason

for the departure in Weatherford is inapplicable to a sentence imposed under the

legislative sentencing guidelines.

       More importantly, the sentence in Weatherford was imposed after a jury

trial. The trial court there was not bound by any plea agreement to sentence within

the guidelines, as the trial court was in the present case. Because the parties here

agreed to a sentence within the guidelines, the trial court violated the agreement


                                           4

not only by sentencing defendant to prison, but also by imposing an indeterminate

sentence, under which defendant could be imprisoned for longer than the 12-

month maximum allowed by the intermediate-sanction statute.

       Finally, we conclude the Court of Appeals did not err when it held that

defendant will be allowed to withdraw his plea only if the trial court cannot agree

to a sentence within the guidelines. As the Court noted, defendant does not assert

his innocence; the heart of his argument is that the prosecution did not fulfill its

end of the bargain. Muttscheler, supra at 2.2 Accordingly, enforcement of that

bargain is the proper remedy.

       Affirmed.



                                                Clifford W. Taylor
                                                Michael F. Cavanagh
                                                Elizabeth A. Weaver
                                                Marilyn Kelly
                                                Maura D. Corrigan
                                                Robert P. Young, Jr.
                                                Stephen J. Markman




       2
        We note that this issue is simplified somewhat by the fact that defendant’s
new sentence must be served consecutively to the existing sentence. If the
sentences could have been served concurrently, defendant might have chosen to
agree to a departure in order to serve his new term in prison while he
simultaneously served his existing prison term. Agreeing to such a departure from
an intermediate sanction would waive an appellate challenge, unless the length of
the sentence also exceeded 12 months, as it did in this case. People v Wiley, 472
Mich 153, 154; 693 NW2d 800 (2005).


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