Order                                                                           Michigan Supreme Court
                                                                                      Lansing, Michigan

  July 12, 2013                                                                         Robert P. Young, Jr.,
                                                                                                   Chief Justice

  146527                                                                                 Michael F. Cavanagh
                                                                                         Stephen J. Markman
                                                                                             Mary Beth Kelly
                                                                                              Brian K. Zahra
                                                                                      Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                          David F. Viviano,
            Plaintiff-Appellee,                                                                         Justices

  v                                                          SC: 146527
                                                             COA: 306085
                                                             Wayne CC: 11-001669-01-FH
  JOHN ALLEN ALEXANDER,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 13, 2012
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         ZAHRA, J. (concurring).

          I concur in the Court’s decision to deny leave to appeal. The trial courts are the
  front line of the criminal justice system, with more than 50,000 criminal cases initiated in
  2012. 1 We should not and cannot require absolute perfection. When a trial court
  imposes a sentence outside the sentencing guidelines, we must only require adherence to
  the statutory requirements. The trial court in this case fulfilled its obligation to justify its
  departure from the sentencing guidelines.

          The Legislature has authorized trial courts to depart from a defendant’s
  recommended minimum sentence range under the guidelines if the court “has a
  substantial and compelling reason for that departure and states on the record the reasons
  for departure.” MCL 769.34(3). This Court has properly held that the trial court must
  justify not just some departure, but the particular departure in the case before it. People v
  Smith, 482 Mich 292, 303 (2008). Put another way, the trial court must justify “both the
  departure and the extent of the departure” on the record. Id. at 313. The trial court’s
  justification of its sentence “must be sufficient to allow for effective appellate review.”
  People v Babcock, 469 Mich 247, 259 n 13 (2003). But this Court has stopped short of
  requiring the trial court to say any “magic words.” Id.

         The trial court in this case satisfied its statutory obligation to articulate on the
  record substantial and compelling reasons for its departure from the guidelines in
  sentencing defendant. The court expressed its understanding of the guidelines, stating on

  1
      See Michigan Supreme Court Annual Report 2012, p 31, available at
  http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Statistics
  /2012/2012MSCAnnualReport.pdf (accessed June 28, 2013).
                                                                                          2

the record that defendant’s guidelines minimum sentence range was “29 months to 114
months.” The trial court also understood that a life sentence exceeded the guidelines.
Moments before the trial court imposed its sentence, the prosecutor asked the court to
“exceed the guidelines and sentence the defendant to life based on a number of reasons.”
The trial court specifically noted that, if the facts and circumstances so warranted, it
possessed the statutory authority to impose a life sentence even though that sentence
would exceed the guidelines because defendant had been convicted as a fourth-offense
habitual offender. MCL 769.12(1)(b). The trial court then painstakingly proceeded to
list each of defendant’s thirteen convictions, noting the many instances in which
defendant was arrested for committing new crimes shortly after being released from
confinement for previous crimes. The trial court then stated that “if there was any
candidate who the legislature envisioned ought to receive parolable life under the
Habitual 4th statute, it would be Mr. Alexander.” And on that basis, the trial court
exceeded the guidelines range and imposed a life sentence with the possibility of parole.

       Thus, the trial court stated on the record that it was exceeding the guidelines range
because of defendant’s status as an habitual offender, the full extent of which was not
captured by the guidelines. And the trial court justified the extent of this particular
departure on the basis of the sheer number of felony convictions over a lengthy criminal
career and defendant’s propensity for rapid recidivism. The facts that formed the basis
for the departure were objective and capable of being confirmed through an examination
of the record. The trial court therefore satisfied the standard set forth in MCL 769.34(3)
and our opinion in Smith. I would not require more from the trial courts, which toil not in
the ivory tower but in the trenches of our judicial system. Thus, I concur with the Court’s
decision to deny leave to appeal.

       YOUNG, C.J., joins the statement of ZAHRA, J.

       MARKMAN, J. (dissenting).

       I respectfully dissent. In enacting MCL 769.34(3), which governs departures from
the sentencing guidelines, “the Legislature put the burden on the trial court to place on
the record one or more substantial and compelling reasons for a particular departure.
Hence, it is the trial court that must justify on the record both the departure and the
extent of the departure.” People v Smith, 482 Mich 292, 313 (2008) (citations omitted;
emphasis altered). Here, the trial court departed from the guidelines recommended
minimum sentence range of 29 to 114 months to a sentence of life imprisonment, but
failed utterly to explain or justify the extent of the departure. It is not that the court
provided insufficient or unpersuasive reasons for the extent of the departure, but that it
gave no reasons. Indeed, it appears the court may have been unaware of its obligation to
justify the particular sentence imposed, stating that “to the extent that [the sentence
imposed] may constitute a departure,” the court would “fill out a departure form just in
case.” (Emphasis added.) The court then proceeded to list a single “aspect” of the case
                                                                                             3

that supposedly permitted it to impose a sentence outside the guidelines range:
“SENTENCE AGREEMENT.” There was no sentencing agreement in this case.

        At sentencing, the trial court referred to defendant’s lengthy criminal record,
which includes 13 prior felonies. Such a criminal history, although partially taken into
account in the calculation of the guidelines range, would have been far more than
sufficient, in my judgment, to explain and justify a substantial upward departure in this
case. Yet it is the obligation of the trial court, not the appellate court, to explain and
justify a departure. Here, the court undertook no effort whatsoever to explain and justify
the particular departure imposed. “A sentence cannot be upheld when the connection
between the reasons given for departure and the extent of the departure is unclear.”
Smith, 482 Mich at 304.

        I would thus remand this case and require the trial court to articulate reasons
explaining and justifying its specific departure from the guidelines range. This obligation
is far more than simply an inconvenient and ponderous exercise in having the trial court
dot its i’s and cross its t’s. Rather, it is the means chosen by the Legislature to ensure that
the sentencing guidelines—one of the most far-reaching and significant pieces of
criminal justice legislation ever enacted in this state—are effective in ensuring that
equivalent sentences are imposed on persons with equivalent criminal conduct and
histories and constraining the ability of sentencing judges to replace the criminal
punishments set by the Legislature with criminal punishments, above and below these
levels, set at their own discretion.

        The concurrence explains the trial court’s failure to comply with this legislative
plan by observing that the trial court (a) knew it was authorized by MCL 769.12(1)(b) to
exceed the guidelines range because defendant was a fourth-offense habitual offender and
(b) after recounting defendant’s criminal record, stated that defendant was just the type of
“candidate who the legislature envisioned ought to receive parolable life . . . .” But
authorization does not equal justification, and the trial court’s authority to sentence above
or below the guidelines is an authority that is specifically conditioned on justification.
This is what the Legislature has made clear, MCL 769.34(3), and this is what this Court
has made clear, Smith, 482 Mich at 313. The guidelines have operated to render our
justice system fairer and replace the unfettered sentencing discretion of individual judges
with the sentencing judgments of the representative branches of government. These
                                                                                                              4

accomplishments are diluted when cursory statements by trial courts of what the
Legislature supposedly “envisioned” are allowed to substitute for statements of actual
sentencing justification as required by the law.

      MCCORMACK, J., joins the statement of MARKMAN, J.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        July 12, 2013
       p0709
                                                                            Clerk
