Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  November 15, 2019                                                             Bridget M. McCormack,
                                                                                              Chief Justice

  159834                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                Richard H. Bernstein
            Plaintiff-Appellant,                                                  Elizabeth T. Clement
                                                                                  Megan K. Cavanagh,
                                                                                                   Justices
  v                                                      SC: 159834
                                                         COA: 341585
                                                         Lenawee CC: 17-005792-AR
  JOSEPH ROBERT BENSCH,
            Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the April 30, 2019
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

        VIVIANO, J. (concurring).

         I concur in the Court’s denial order and write separately to explain my decision.
  This Court may exercise its discretion to deny leave when we determine that, despite the
  obvious and significant impact of the case on the parties, the Court does not believe that
  the legal issues raised in the appeal are of sufficient statewide import for the Court to
  intervene. See MCR 7.305(B)(3) (including as one alternative ground for granting leave
  that the application “show[s] that . . . the issue involves a legal principle of major
  significance to the state’s jurisprudence.”). The prosecutor here concedes something that
  I also know to be true from my time as a trial judge: criminal defendants very rarely
  prefer jail time or a prison sentence over probation. And when that rare circumstance
  occurs, trial judges routinely oblige the defendant—after all, why would a trial judge
  sentence the defendant to a probationary sentence when the defendant has already
  indicated that he or she is unable or unwilling to comply with the terms and conditions of
  probation? Probation is an alternative to incarceration that “is granted in the hope of
  rehabilitating the defendant . . . .” People v Gallagher, 55 Mich App 613, 619 (1974)
  (cleaned up). There would appear to be little hope of rehabilitating a defendant who
  refuses in advance to comply with the terms and conditions of his probation, especially
  since the only sanction left for the court to impose is the very term of incarceration
  already requested by the defendant. This is all another way of saying that, even if the
  dissenting justices’ legal analysis is correct—a conclusion subject to debate—why spend
  considerable judicial resources resolving the issue when it arises so infrequently and in
  such strange circumstances?

        I am not inclined to intervene here for yet another reason: the sentence imposed by
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the trial judge appears to be an effort to evade our rule requiring concurrent sentences in
the absence of statutory authority for consecutive sentences. See People v Sawyer, 410
Mich 531, 534 (1981). See also In re Petition of Bloom, 53 Mich 597, 598 (1884). Here,
although no statute authorized consecutive sentencing, the trial judge crafted a sentence
that would essentially allow for at least the possibility of a consecutive sentence by
imposing a jail sentence in the first case and a probationary sentence in the second.
Rather than the defendant receiving the maximum term of incarceration (one year) in
both cases and having those terms run concurrently, he received the maximum term only
in the first case. He then faces the same term again in the second case if he fails to
complete his term of probation successfully. Because the sentence in the second case
may be imposed after completion of the defendant’s first sentence, the two sentences
would be, in essence, consecutive sentences. Thus, even if the dissenting justices’
analysis were correct and the legal issue were significant enough to be vindicated in an
appropriate case, I also would not intervene here because it would sanction the trial
judge’s end run around our longstanding rule regarding concurrent sentencing.

       For these reasons, I concur in the Court’s denial order.

       CLEMENT, J. (concurring).

        I concur in the Court’s order denying leave to appeal. Regardless of what one
thinks of the Court of Appeals’ attention to its own precedents interpreting the law of
probation, I believe that the text and structure of the Code of Criminal Procedure indicate
that a defendant must consent to a sentence of probation. First, MCL 771.4 says that
“probation is a matter of grace,” and a “matter of grace” is defined as “[a] situation in
which a decision-maker uses a high degree of discretion in deciding whether to grant
some form of relief,” Black’s Law Dictionary (11th ed) (emphasis added). It is difficult
for me to see how something involuntarily imposed on a party is a “form of relief,”
especially since “relief” is defined as “[t]he redress or benefit . . . that a party asks of a
court.” Id. (emphasis added). Second, the structure of the probation system suggests that
a defendant must agree to be placed on probation. Because MCL 771.3(2)(b) allows the
trial court to impose a fine (but without limits), the trial court is not bound by the
sentencing restrictions otherwise provided by the Michigan Penal Code. See, e.g., People
v Oswald, 208 Mich App 444, 445-446 (1995) (allowing a fine of $1500 as a condition of
probation for a crime which the Michigan Penal Code caps the allowable fine at $1000).
Indeed, MCL 771.3(3) allows a trial court to “impose [any] other lawful conditions of
probation as the circumstances of the case require or warrant or as in its judgment are
proper,” under which “judges have great discretion . . . limited only by the requirement
that conditions be lawful,” keeping in mind that “[t]here is no ultimate catalogue of legal
or illegal terms.” People v Johnson, 92 Mich App 766, 768 (1979). The manner in
which a probationary sentence can deviate from the restrictions the Legislature has
otherwise placed on a court’s sentencing power and discretion is a structural indication
that a sentence of probation requires the consent of the defendant; if it could be
involuntarily imposed, the Michigan Penal Code would only limit a sentencing court to
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the extent that a court chose to be limited, which does not seem to me to be any real limit
at all. 1

       For these reasons, I concur in the Court’s order denying leave to appeal.

       MARKMAN, J. (dissenting).

        I respectfully dissent and instead would affirm the unremarkable proposition that
within our state’s justice system, it is the trial court that determines criminal sentences
and not the defendant. And in dissenting from this order, I would also affirm the equally
unremarkable proposition that in reviewing criminal sentences, the appellate courts of
this state, including this Court, must affirm criminal sentences in the absence of
unconstitutionality, unlawfulness, or abuse of discretion. Despite these commonplace
propositions, the district court here has imposed a probationary sentence-- one within the
scope of its legal judgment-- only to have the circuit court strike down that sentence and
the Court of Appeals to affirm, on the grounds that the defendant must be allowed to
“waive” his sentence and demand instead a sentence more to his liking-- oddly, to be
sure, a sentence of incarceration in lieu of a sentence of probation but, perhaps more
rationally understood, a sentence allowing defendant to serve less cumulative time under
state supervision for concurrent convictions of operating while intoxicated. Indisputably,
criminal defendants are entitled to argue for punishments in what they view as their best
interest, and they are entitled to urge these views upon the trial court, and they are
entitled even to apprise the court that, if given a probationary sentence, they would
violate a condition of probation and thus compel the court to reincarcerate them.
However, where the defendant fails in these pursuits to persuade the trial court as to an

1
  The dissent correctly notes that unlawful conditions of probation can be appealed. I still
maintain that the broad flexibility the trial court has under MCL 771.3(3), when
contrasted with the constrained sentencing discretion trial courts possess under the
Michigan Penal Code, suggests that a defendant must accept being placed on probation,
with appeals from unlawful conditions of probation available when a defendant wants
probation (and thus to avoid incarceration), but believes a particular term of probation is
unduly onerous. See, e.g., People v Higgins, 22 Mich App 479 (1970) (probationary term
requiring defendant not to play college or professional basketball held unlawful). In any
event, however, what apparently cannot be appealed, as a condition of probation, is a
penal fine in excess of the maximum authorized by the Michigan Penal Code. See
Oswald, 208 Mich App at 445-446. Even assuming that any such fine must still be
reasonable—presumably a $100,000 assessment in Oswald would not have passed
muster—I believe the trial court’s ability to exceed the clearly delineated boundaries for
fines expressed in the Michigan Penal Code when a defendant is sentenced to probation is
a structural indication that the defendant must agree to be placed on probation. If the trial
court can impose probation without the defendant’s consent, it would seem to have the
unilateral ability to exceed the caps on fines expressed in the Michigan Penal Code,
which appears to me to defeat the purpose of establishing a cap in the first place.
                                                                                           4

appropriate sentence, it is the court that determines a criminal sentence, not the defendant
himself, and it is the obligation of appellate courts, including this Court, absent some
legal defect, to abide by that sentence.

        The Court of Appeals’ dissent correctly identifies the issue involved in the instant
case-- “[i]s there any circumstance under which a criminal defendant may veto a sentence
which the trial judge intends to impose and demand a sentence more to the defendant’s
liking?”-- and the dissent equally correctly answers this query-- No. People v Bensch,
328 Mich App ___, ___ (2019) (Docket No. 341585) (TUKEL, J., dissenting), at 1.
Moreover, the dissent correctly understands everything else that matters about this case--
(1) that it is of no consequence, as the Court of Appeals majority seemed to think, that the
prosecutor allegedly failed to “identif[y] any difficulties” with defendant’s assertion of
authority to determine his own sentence since, as the dissent avers, “[t]he correct
resolution [of this case] turns on legislative intent” as expressed in the language of MCL
771.1 and not on “policy determinations,” id. at ___, slip op at 3; (2) that the availability
of probation as a sentencing option “rests in the sound discretion of the trial court,” id.
(quotation marks and citation omitted); (3) that there is no language in our probation
statute providing that a defendant must consent to, or may veto, a court’s decision; (4)
that probation being understood as a “matter of grace” does not confer discretion upon
the defendant but upon the trial court either to grant or to revoke probation; and (5) that
(at least until today) there has not been the slightest indication in any case of this Court
that the probationary decisions of the trial court are either “dependent on a defendant’s
approval” or “subject to [his] veto,” id. at ___, slip op at 6.

       Concerning Justice CLEMENT’s concurring statement, first, I respectfully disagree
that a defendant “must consent to a sentence of probation” because such a sentence is “a
matter of grace” under MCL 771.4. Indeed, under the concurrence’s own definition,
“matter of grace” is defined as “[a] situation in which a decision-maker uses a high
degree of discretion in deciding whether to grant some form of relief.” Black’s Law
Dictionary (11th ed) (emphasis added). Thus, it is obviously the court, and not the
defendant, who possesses discretion in deciding whether to allow probation. And equally
obviously, a probationary sentence in lieu of incarceration is most commonly understood
as constituting “relief” in the context of MCL 771.4. Second, I respectfully disagree that
the “structure of the probation system suggests that a defendant must agree to be placed
on probation” on the grounds that a court can deviate from the restrictions the Legislature
has placed on its sentencing power without “any real limit at all.” That is simply not so.
Rather, a trial court may only render a sentence that imposes “lawful conditions of
probation as the circumstances of the case require or warrant or as in its judgment are
proper,” MCL 771.3(3). Indeed, even if an unlawful condition was imposed, the remedy
would be to remove the condition, not to allow the defendant to choose whether he
wished to continue with a sentence of probation or not.

      I would reverse the Court of Appeals and instead adopt the analysis and
conclusion of the dissenting judge in the Court of Appeals.
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ZAHRA, 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.
                 November 15, 2019
t1112
                                                                     Clerk
