Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 4, 2014                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

                                                                                     Michael F. Cavanagh
                                                                                     Stephen J. Markman
  147544                                                                                 Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                  Justices
            Plaintiff-Appellee,
  v                                                       SC: 147544
                                                          COA: 308503
                                                          Kent CC: 09-001404-FC
  KEITH ALAN STONE,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the July 3, 2013 order of
  the Court of Appeals is considered, and it is DENIED, because the defendant has failed to
  meet the burden of establishing entitlement to relief under MCR 6.508(D).

         MARKMAN, J. (dissenting).

          Defendant pleaded guilty to single counts of carjacking, unarmed robbery, and
  resisting and obstructing and the trial court calculated defendant’s recommended
  minimum sentence range under the sentencing guidelines for only the felony with the
  highest offense class, the carjacking. I write to restate the concerns I raised in People v
  Getscher, 478 Mich 887, 888 (2007) (MARKMAN, J., dissenting), and People v Warren,
  485 Mich 970, 970-971 (2009) (MARKMAN, J., dissenting), regarding this practice of
  courts calculating the guidelines only for the highest class felony when imposing
  concurrent sentences for multiple felonies of differing classes.

         MCL 771.14(2)(e)(iii) has served as the basis for this practice, permitting the
  probation officer, when preparing the presentence report, to only include a “computation
  that determines the recommended minimum sentence range for the crime having the
  highest crime class.” However, MCL 777.21(2) places a different responsibility on
  courts themselves in this process, stating:

               If the defendant was convicted of multiple offenses, subject to [MCL
         771.14], score each offense as provided in this part. [Emphasis added.]
                                                                                                               2


This obligation to “score each offense” is underscored when one looks at other provisions
of Michigan’s sentencing guidelines. For instance, MCL 769.34(2) states that “the
minimum sentence imposed by a court of this state for a felony . . . committed on or after
January 1, 1999 shall be within the appropriate sentence range,” and MCL 769.34(3)
states, “A court may depart from the appropriate sentence range . . . [only] if the court has
a substantial and compelling reason for that departure and states on the record the reasons
for departure.” Obviously, a court can only know whether a sentence is “within the
appropriate sentence range” of the guidelines if it first calculates the guidelines for an
offense. The fact that the probation officer is not required to perform a calculation for
each offense in no way relieves the court of its statutory responsibility to perform such a
calculation.

       As a result of courts scoring only the highest class felony and imposing sentences
for lower class felonies on the basis of the guidelines range for the highest class felony,
courts in an unknown number of cases are sentencing defendants to terms in excess of the
guidelines recommendation without being required to set forth “substantial and
compelling reasons” for the departure. In the instant case, the current practice resulted in
defendant’s being sentenced to 20 to 50 years for an unarmed robbery although the
highest guidelines range for a minimum sentence for a person sentenced as a fourth-
offense habitual offender for this offense is 51/ 6 to 19 years.

       I would grant leave to appeal with respect to whether a court is or is not obligated
to score all felonies and sentence a defendant accordingly.




                         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.
                         April 4, 2014
       s0401
                                                                             Clerk
