                                                                    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 JULY 26, 2007

 PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

 v                                                                No. 130988

 BERNARD GEORGE HARPER, JR.,

             Defendant-Appellant.


 PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

 v                                                                No. 131898

 JESSE GENE BURNS,

             Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 CORRIGAN, J.

       We granted leave to appeal in these two cases to determine whether an

 “intermediate sanction” described in MCL 769.31(b) and MCL 769.34(4)

 constitutes a maximum sentence under Blakely v Washington, 542 US 296; 124 S
Ct 2531; 159 L Ed 2d 403 (2004), for which the facts supporting a departure must

be found by a jury beyond a reasonable doubt or admitted by the defendant. We

conclude that because Michigan has a true indeterminate sentencing scheme, an

intermediate sanction is not a maximum sentence that is governed by Blakely.

      Under Michigan law, the maximum portion of a defendant’s indeterminate

sentence is prescribed by MCL 769.8(1), which requires a sentencing judge to

impose no less than the prescribed statutory maximum sentence as the maximum

sentence for most felony convictions.        Michigan’s unique law requiring the

imposition of an intermediate sanction upon fulfillment of the conditions of MCL

769.34(4)(a) does not alter the maximum sentence that is required upon conviction

and authorized by either the jury verdict or the guilty plea.1        Rather, the

conditional limit on incarceration contained in MCL 769.34(4)(a) is a matter of

legislative leniency, giving a defendant the opportunity to be incarcerated for a

period that is less than that authorized by the jury verdict or the guilty plea, a

circumstance that does not implicate Blakely.2


      1
         Accordingly, we reject the Court of Appeals contrary conclusion in
People v Uphaus, ___ Mich App ___; ___NW2d ___ (2007) (Docket No. 267238,
issued April 3, 2007).
      2
         As Justice Kennedy noted in Harris v United States, 536 US 545, 566;
122 S Ct 2406; 153 L Ed 2d 524 (2002), “[t]he Fifth and Sixth Amendments
ensure that the defendant ‘will never get more punishment than he bargained for
when he did the crime,’ but they do not promise that he will receive ‘anything
less’ than that.” (Emphasis added; citation omitted.) See also Apprendi v New
Jersey, 530 US 466, 498-499; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (Scalia, J.,
concurring), indicating that the Sixth Amendment provides “the right to have a
                                                                  (continued…)

                                        2

      Finally, even if an intermediate sanction were a statutory maximum for

purposes of Blakely and the sentencing courts in these cases violated Blakely, we

conclude that any error was harmless.         In both cases, the facts used by the

sentencing judges to support the sentence were uncontested and supported by

overwhelming evidence, such that we are convinced beyond a reasonable doubt

that a jury would have reached the same result. Accordingly, we affirm the

defendants’ convictions and sentences.

                  I. FACTS AND PROCEDURAL HISTORY

                             A. PEOPLE v HARPER

      On February 14, 2005, defendant Harper pleaded guilty of larceny in a

building, which is a class G offense that carries a statutory maximum sentence of

four years’ imprisonment.3     He admitted that, between December 11 and

December 16, 2004, he stole coats from his employer, the Old News Boys of Flint,

a nonprofit organization that solicits donations to aid needy families in Flint.

Harper then sold some of the coats.




(…continued) 

jury determine those facts that determine the maximum sentence the law allows,”      

and that a defendant receiving a lesser sentence “may thank the mercy of a            

tenderhearted judge (just as he may thank the mercy of a tenderhearted parole        

commission if he is let out inordinately early, or the mercy of a tenderhearted      

governor if his sentence is commuted).” 

      3
          MCL 750.360; MCL 750.503; MCL 777.16r.



                                         3

      As part of the plea agreement, the prosecutor dismissed a related

embezzlement charge.4    The prosecutor also agreed not to seek an enhanced

sentence based on Harper’s status as a fourth-offense habitual offender.5 The

parties made no other agreement regarding Harper’s sentence.

      Harper did not contest that his criminal record included two prior

convictions for high severity felonies, three prior convictions for low severity

felonies, and one prior misdemeanor conviction. Accordingly, he received an

overall prior record variable (PRV) score of 72, based on scores of 50, 20, and 2

points, respectively, for PRV 1, PRV 2, and PRV 5.6 His offense variable (OV)

score consisted of the five points he received under OV 16, because his offense

caused property with a value of $1,000 or more but not more than $20,000 to be

“obtained, damaged, lost or destroyed.”7 These scores placed him in the E-I cell

of the sentencing grid for class G offenses. As a result, his calculated minimum

sentence range was zero to 17 months.8

      Because his minimum sentence range had an upper limit of 18 months or

less, the court was required to impose an intermediate sanction—which may


      4
          MCL 750.174(4)(a).
      5
        As a fourth-offense habitual offender, Harper’s potential maximum prison
sentence for larceny in a building would have increased from 4 years to 15 years
under MCL 769.12(1)(b).
      6
          MCL 777.51; MCL 777.52; MCL 777.55.
      7
          MCL 777.46(1)(c).




                                         4

include, for instance, a term of probation or a jail term of 12 months or less—

unless the court stated on the record a substantial and compelling reason to impose

a prison term.9 The Genesee Circuit Court concluded that departure was justified

for several reasons, including Harper’s extensive criminal history. The court

noted Harper’s record of three parole revocations, his history of absconding from

parole, the bench warrants issued against him for failures to appear in court, and

other “out of state” legal problems reflected in his presentence investigation

report. The court added that the sentencing guidelines did not take into account

that Harper had “ripped off a charity that was trying to do good for cold children.”

Accordingly, on March 11, 2005, the court sentenced Harper to a minimum prison

term of 24 months, and a maximum term of 48 months with credit for time served.

      The Court of Appeals denied defendant’s delayed application for leave to

appeal, citing lack of merit in the grounds presented. Harper then applied for

leave to appeal in this Court. We granted leave to consider whether his sentence,

as an upward departure from an intermediate sanction, violated his constitutional

right to have “‘any fact that increases the penalty for a crime beyond the

prescribed statutory maximum . . . submitted to a jury, and proved beyond a




(…continued)
     8
       MCL 777.68.
      9
          MCL 769.34(4)(a); MCL 769.31(b).



                                         5

reasonable doubt.’” Blakely, supra at 301, quoting Apprendi v New Jersey, 530

US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000).10

                               B. PEOPLE v BURNS

       In July 2002, defendant Burns pleaded guilty of attempted breaking and

entering of a building. His recommended minimum sentence range under the

guidelines was zero to 11 months, which placed him in an intermediate sanction

cell. Burns was placed on probation for three years. Among the conditions of

probation were that he must not violate the law, that he must not engage in

threatening or assaultive behaviors, and that he must avoid alcohol and illegal drug

consumption.

       In June 2005, Burns was charged with four counts of violating the terms of

his probation: using alcohol, committing fourth-degree criminal sexual conduct,

engaging in harassment, and engaging in assaultive behavior. Burns pleaded not

guilty to the probation violation charges.

       A probation violation hearing was held. Two 18-year-old women testified

that Burns had approached them near a boat ramp on Lake Michigan in Ottawa

County. After engaging in small talk, Burns asked one of the women if she gave

“good head.” He also touched the woman on the buttocks and commented that it

was “nice.” Burns asked the other woman similar sexual questions and put his



       10
            477 Mich 933 (2006).



                                             6

arm around her. The two women wrote down Burns’s license plate number and

reported the incident to the police.

        A police officer came to investigate the complaint. The officer stopped

Burns’s boat. The two women identified Burns as the person who had assaulted

them.    Although Burns initially denied that the incident had occurred, he

eventually admitted to the officer that he had asked the women if they knew how

to give “a blow job.” He also admitted that he had touched one woman on the

buttocks and the other on the shoulder. He further told the officer that he had

consumed about six beers and was “buzzed.”              Burns was administered a

preliminary breath test that registered a blood alcohol level above the legal limit.

        Burns called no witnesses and presented no evidence at the probation

violation hearing. The trial court found, by a preponderance of the evidence, that

Burns had been intoxicated, that he had committed fourth-degree criminal sexual

conduct, and that he had done so in an intimidating, aggressive manner.

        At the probation violation sentencing, the trial court departed from the

original guidelines recommendation of zero to 11 months and imposed a sentence

of 18 months to 5 years. The court explained its decision:

               Well, I’m glad to hear that you’ve found religion and the
        reason to—it can give some meaning to your life. It doesn’t
        however change what you did here. You know, there wasn’t any
        question but that you did this to these young girls. I don’t
        understand in a sense why you put them through taking the stand
        and testify [sic] to the whole thing, because there wasn’t any issue,
        you did it. It expresses an attitude to me that is very puzzling. It’s
        kind of a mean spirited thing that you did. Not that you didn’t have


                                          7

        a perfect right to do it, I would never dispute your right to a hearing
        and to have testimony confirm it, but it wasn’t a close case, it was a
        clear cut case of a great deal of abuse on your part. You were about
        as intimidating and—to those young girls and you scared the devil
        out of them.

               It’s a difficult thing to understand how you could publicly do
        that to people, young girls you didn’t even know, you didn’t have
        any—it was gross, it was very gross. Very intimidating.

               I suspect because of the fact that you fondled the one young
        lady you’re probably going to be looking at some serious time in
        Holland if you’re convicted [of fourth-degree criminal sexual
        conduct]. I suspect you will be because the girls told the story very
        honestly in my opinion. You’re very likely going to get convicted
        and go to prison for that one.

               I seldom ever exceed guidelines, in fact I can’t recall a time
        that I have, but I’m going to in your case. The behavior that you
        exhibited here certainly is not or was not contemplated in arriving at
        your original guidelines. It was gross, it was abusive, and I believe
        there’s a compelling reason to exceed guidelines.

              It’s the sentence of this Court that you be committed to the
        Michigan Department of Corrections for a term of 18 months to a
        maximum of 5 years. You have credit I believe for 142 days in the
        county jail.

On the departure evaluation form, the court stated that the original guidelines

recommendation of zero to 11 months failed “to consider [defendant’s] violation

behavior—which constitutes a substantial and compelling reason for a moderate

departure . . . .”11


        11
          Contrary to the apparent assumptions of Justice Kelly, post at 4-6, and
Justice Cavanagh, post at 2, the sentencing judge followed the proper procedure
for stating his reasons for departure. A judge is required to “state[] on the record
a substantial and compelling reason to sentence the individual to the jurisdiction of
                                                                       (continued…)

                                          8

      Burns moved for resentencing, arguing that the fact that his sentence

exceeded the guidelines range on the basis of facts neither admitted by him nor

found by a jury beyond a reasonable doubt violated his due process rights under

Blakely. The trial court denied the motion because this Court had stated in People

v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004), that Blakely did not

apply to Michigan’s indeterminate sentencing system.          The court further

explained:

             Therefore, the Court was not required to find Defendant
      guilty of 4th Degree Criminal Sexual Conduct beyond a reasonable
      doubt in order to consider that behavior for the purpose of exceeding
      guidelines. The Court found objective and verifiable evidence on
      the record, including Defendant’s admission to the public safety
      officer that he touched the victim’s “butt” and the uncontroverted
      testimony of the victims themselves that Defendant was harassing
      and intimidating. Such evidence was not considered in the original
      sentencing, and the Court maintains that Defendant’s behavior
      constituted substantial and compelling reasons for exceeding
      statutory guidelines.

      The Court of Appeals denied Burns’s application for leave to appeal for

lack of merit in the grounds presented. Burns then sought leave to appeal in this

Court. We granted the application and directed the parties to address whether an

intermediate sanction described in MCL 769.31(b) and MCL 769.34(4) is a

statutory maximum sentence under Blakely “for which the departure reasons must




(…continued) 

the department of corrections.” MCL 769.34(4)(a) (emphasis added); see also 

MCR 6.425(E)(1)(e). The judge did precisely this. 




                                        9

be decided by a jury or admitted by the defendant, where the defendant is being

sentenced for a violation of probation.” 477 Mich 933 (2006).

                            II. STANDARD OF REVIEW

       We review de novo questions of constitutional law. People v Nutt, 469

Mich 565, 573; 677 NW2d 1 (2004).

                                   III. ANALYSIS

A. MICHIGAN’S STATUTORY SENTENCING SCHEME UNDER BLAKELY

       Under the Due Process Clause of the Fifth Amendment and the jury trial

guarantees of the Sixth Amendment, any fact that increases the maximum penalty

for a crime must be submitted to a jury and proven beyond a reasonable doubt.12

The Fourteenth Amendment requires that the states’ criminal sentencing schemes

conform to this rule.13       The rule includes exceptions for the fact of prior

convictions and any facts admitted by the defendant.14

       Accordingly, when sentencing a defendant, a judge may not exceed the

maximum sentence authorized by the jury verdict or the guilty plea except on the

basis of the facts reflected in the jury verdict, the facts admitted by the defendant,

and the defendant’s record of prior convictions. In other words, the statutory

maximum, for Blakely purposes, is the maximum sentence a judge may impose


       12
            Apprendi, supra at 476, 490.
       13
            Id. at 476.
       14
            Blakely, supra at 303; Apprendi, supra at 490.



                                           10

“without any additional findings.” Blakely, supra at 304. In the wake of Blakely,

state courts have been called upon to define the relevant statutory maximums

within which judges may continue to exercise the traditional sentencing discretion

legislatures afford them.

       The first question in this inquiry involves whether a state’s sentencing

scheme is determinate or indeterminate. As we have previously explained, under a

determinate scheme, conviction for an offense typically exposes a defendant to a

sentence of a fixed term lying in a standard range for that offense.15 In Blakely,

for instance, Washington’s scheme prescribed a “standard range” of 49 to 53

months for the defendant’s conviction of second-degree kidnapping with a

firearm.16 A judge was authorized to depart beyond the standard range on the

basis of “‘substantial and compelling reasons justifying an exceptional

sentence.’”17 The statute permitted the reasons for departure to be based on facts

found by the sentencing judge.18 In Blakely, the judge sentenced the defendant to

an exceptional 90-month sentence on the basis of the judge’s finding that the

defendant perpetrated the kidnapping with “deliberate cruelty.”19 Accordingly, the


       15
          See People v Drohan, 475 Mich 140, 159-160; 715 NW2d 778 (2006),
citing Claypool, supra at 730 n 14.
       16
            Blakely, supra at 299, citing Wash Rev Code 9.94A.320.
       17
            Blakely, supra at 299, citing Wash Rev Code 9.94A.120(2).
       18
            Blakely, supra at 299, citing Wash Rev Code 9.94A.120(3).
       19
            Blakely, supra at 300.



                                         11

sentence violated the defendant’s constitutional rights because it exceeded the

fixed statutory maximum sentence range that was authorized solely by the facts

that the defendant admitted when he pleaded guilty of second-degree

kidnapping.20

      In contrast, under an indeterminate scheme, a defendant receives a

minimum sentence and a maximum sentence. In Michigan, for instance, the law

provides that the maximum portion of a defendant’s indeterminate sentence must

be the “maximum penalty provided by law . . . .”21 As will be explained in detail



      20
           Id. at 304-305.
      21
          MCL 769.8(1); Drohan, supra at 160. Michigan’s habitual-offender
statutes are an exception to the Legislature’s requirement that the maximum
portion of a defendant’s indeterminate sentence be the maximum penalty provided
by law. The habitual-offender statutes grant a sentencing judge the discretion to
increase the maximum portion of a recidivist’s indeterminate sentence beyond the
statutory limit on the basis of the fact of a prior conviction, as permitted by
Apprendi and Blakely. Id. at 161 n 13; MCL 769.10(1)(a) (upon a second felony
conviction, a judge may impose a maximum sentence of up to 1½ times the
statutory maximum prescribed for a first conviction of the offense); MCL
769.11(1)(a) (upon a third felony conviction, a judge may impose a maximum
sentence of up to twice the statutory maximum); MCL 769.12(1)(a) and (b) (upon
a fourth or subsequent felony conviction, a judge may impose a maximum
sentence of up to 15 years for offenses carrying statutory maximum terms of less
than 5 years and a sentence of life in prison for offenses carrying maximum terms
of 5 years or more). When a judge imposes an increased maximum sentence
under these statutes, the defendant’s sentence remains an indeterminate sentence.
Moreover, the judge is expressly prohibited from sentencing a recidivist to a
maximum sentence that is less than the maximum term for a first conviction.
MCL 769.10(2); MCL 769.11(2); MCL 769.12(2).
       A very limited number of offenses carry determinate sentences in
Michigan, such as first-degree murder, MCL 750.316 (life in prison without the
possibility of parole), and carrying or possessing a firearm when committing or
                                                                  (continued…)

                                       12

later in this opinion, the sentencing judge ascertains the minimum portion of a

defendant’s indeterminate sentence by calculating the minimum sentence range

under the statutory sentencing guidelines, which consider the circumstances of the

crime as well as the defendant’s criminal history. The judge may exceed the

statutorily recommended minimum sentence range in a particular case if the judge

finds a “substantial and compelling reason” to depart that the guidelines do not

adequately take into account.22 While the sentencing judge fixes the minimum

portion of a defendant’s indeterminate sentence, a defendant is still liable to serve

his maximum sentence and may only be released before the maximum term has

expired at the discretion of the parole board.23

       Thus, under an indeterminate sentencing scheme like Michigan’s, judicial

fact-finding does not present the same constitutional problems as judicial fact­

finding used to exceed the statutory maximum under a determinate scheme,24



(…continued) 

attempting to commit a felony, MCL 750.227b (two years in prison for a first 

offense, five years for a second offense, and ten years for a third or subsequent 

offense). 

       22
            MCL 769.34(3).
       23
            MCL 791.234; MCL 791.235; Drohan, supra at 163.
       24
          The United States Supreme Court has firmly established that, when a
legislature defines the outer limit of an indeterminate sentence on the basis of the
elements of an offense, judicial fact-finding may be employed to set the minimum
sentence. McMillan v Pennsylvania, 477 US 79, 86-88, 93; 106 S Ct 2411; 91 L
Ed 2d 67 (1986); see also Harris, supra at 567 (opinion of Kennedy, J.) (“Read
together, McMillan and Apprendi mean that those facts setting the outer limits of a
sentence, and of the judicial power to impose it, are the elements of the crime for
                                                                      (continued…)

                                          13

because judicial fact-finding under our scheme never affects the statutory

maximum sentence that was authorized by the jury verdict of guilty or the

defendant’s guilty plea.25 As the Blakely Court observed in distinguishing the two

types of schemes:



(…continued)
the purposes of the constitutional analysis. Within the range authorized by the
jury’s verdict, however, the political system may channel judicial discretion—and
rely upon judicial expertise—by requiring defendants to serve minimum terms
after judges make certain factual findings.”).
      25
          The fact that a defendant is always liable to serve the statutory maximum
sentence in Michigan also distinguishes our scheme from the schemes Justice
Kelly claims are indistinguishable. She compares, for instance, Ring v Arizona,
536 US 584, 592-593; 122 S Ct 2428; 153 L Ed 2d 556 (2002), in which the
United States Supreme Court rejected an Arizona sentencing law allowing the
sentencing judge to determine, at a separate posttrial hearing, whether the
defendant would be subject to a maximum sentence of either death or life
imprisonment. Post at 22-24. The state argued that the jury verdict authorized
either sentence. The Ring Court disagreed, given that the maximum sentence of
death could only be imposed if the judge found aggravating circumstances. Ring,
supra at 603-604. An Arizona offender also could not know until sentencing was
complete whether he would be subject to the death penalty for his crime. In
contrast, and contrary to Justice Kelly’s contention, Michigan’s indeterminate
sentences do “have only one maximum sentence,” post at 16-17, and the statutes
unambiguously notify Michigan offenders of the statutory maximum terms
applicable to their crimes.
       In her dissent in People v McCuller, 479 Mich ___; ___ NW2d ___ (2007)
(Docket No. 128161, decided July 26, 2007), Justice Kelly also compares the
federal sentencing system as it existed before the United States Supreme Court’s
decision in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621
(2005). But the federal sentencing guidelines did not merely set a minimum
sentence and leave a defendant liable to serve the statutory maximum, as in
Michigan. Rather, in Booker, as Justice Kelly concedes, although a separate
federal statute set an absolute maximum sentence of life in prison for the
defendant’s offense, in Booker’s particular case “the guidelines required a
maximum sentence of 21 years and 10 months’ imprisonment.” McCuller, supra
                                                                   (continued…)

                                        14

              [T]he Sixth Amendment by its terms is not a limitation on
      judicial power, but a reservation of jury power. It limits judicial
      power only to the extent that the claimed judicial power infringes on
      the province of the jury. Indeterminate sentencing does not do so.
      It increases judicial discretion, to be sure, but not at the expense of
      the jury’s traditional function of finding the facts essential to lawful
      imposition of the penalty. Of course indeterminate schemes involve
      judicial factfinding, in that a judge (like a parole board) may
      implicitly rule on those facts he deems important to the exercise of
      his sentencing discretion. But the facts do not pertain to whether the
      defendant has a legal right to a lesser sentence—and that makes all
      the difference insofar as judicial impingement upon the traditional
      role of the jury is concerned. In a system that says the judge may
      punish burglary with 10 to 40 years, every burglar knows he is
      risking 40 years in jail. In a system that punishes burglary with a
      10-year sentence, with another 30 added for use of a gun, the burglar
      who enters a home unarmed is entitled to no more than a 10-year
      sentence . . . . [Blakely, supra at 308-309.]

Similarly, as we observed in People v Drohan, 475 Mich 140, 162; 715 NW2d

778 (2006), in Michigan, “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.” For this reason, a

defendant’s constitutional rights are not violated when a sentencing judge exceeds

the recommended minimum sentence range on the basis of a substantial and

compelling reason, as the respective judges did in these cases; even an upward


(…continued)
at ___ (Kelly, J., dissenting) (emphasis added); see Booker, supra at 227.
Accordingly, the judge’s upward departure from that range on the basis of his own
findings was impermissible given the then-mandatory nature of the guidelines,
although the 30-year sentence imposed was within the outer limit of the absolute
maximum. Booker, supra at 226-227. As we will more fully explain later in this
                                                                   (continued…)




                                        15

departure from the guidelines may not exceed the maximum penalty provided by

law.   Id. at 162 n 15.     Therefore, we reaffirm our holding in Drohan that

Michigan’s indeterminate sentencing scheme is valid under Blakely. Id. at 162­

164.

            B. MICHIGAN’S INTERMEDIATE SANCTION CELLS

       Nonetheless, defendants argue that at least one aspect of Michigan’s

sentencing scheme violates Blakely.       They claim that, when the guidelines

minimum sentence range calls for an intermediate sanction, as it did in these cases,

the intermediate sanction becomes the relevant statutory maximum sentence under

Blakely and a defendant is constitutionally entitled to such a sanction.

Accordingly, they claim that a judge may not exceed the range of intermediate

sanction options by sentencing a defendant to an indeterminate prison term, even

if the judge has a substantial and compelling reason to do so. We disagree.

Blakely prohibits a judge from exceeding the maximum sentence authorized by the

jury verdict or the guilty plea. Blakely does not, as defendants would have it,

entitle a defendant to a sentence that is less than the one authorized by the verdict

or plea.

       A defendant’s recommended minimum sentence range under the guidelines

is determined on the basis of the defendant’s record of prior convictions (the PRV


(…continued) 

opinion, Michigan’s sentencing guidelines establish a defendant’s minimum 

                                                              (continued…)


                                         16

score), the facts surrounding his crime (the OV score), and the legislatively

designated offense class.26 A court must generally sentence a defendant to a

minimum prison term within the guidelines range27 unless it states on the record a

substantial and compelling reason to depart.28      A substantial and compelling

reason “exists only in exceptional cases,” and is an “objective and verifiable”

reason that “keenly or irresistibly grabs our attention” and is “of considerable

worth in deciding the length of a sentence . . . .”29 Departure may not be based on

certain qualities of the defendant, such as gender, race, or employment status.30

Departure also may not be based on “an offense characteristic or offender

characteristic already taken into account in determining the appropriate sentence

range unless the court finds from the facts contained in the court record, including

the presentence investigation report, that the characteristic has been given

inadequate or disproportionate weight.” MCL 769.34(3)(b). Finally, a minimum




(…continued) 

sentence. Our statutory maximums for a given offense are static. 

      26
         MCL 777.21(1). The range for the minimum sentence may also be
increased on the basis of a defendant’s status as an habitual offender. MCL
777.21(3).
      27
           MCL 769.34(2)(a).
      28
           MCL 769.34(3).
      29
         People v Babcock, 469 Mich 247, 258; 666 NW2d 231 (2003) (internal
quotations and citation omitted).
      30
           MCL 769.34(3)(a).



                                        17

sentence, including a departure, may not exceed ⅔ of the statutory maximum

sentence.31

       When the upper and lower limits of the recommended minimum sentence

range meet certain criteria, a defendant is eligible for an intermediate sanction. If

the upper limit of the minimum sentence range exceeds 18 months and the lower

limit is 12 months or less, the defendant’s sentence range is in a “straddle cell.”32

When the range is in a straddle cell, the sentencing court may elect either to

sentence the defendant to a prison term with the minimum portion of the

indeterminate sentence within the guidelines range or to impose an intermediate

sanction, absent a departure.33 If the upper limit of the minimum sentence range is

18 months or less, as it was in these cases, the cell containing the range is an

“intermediate sanction cell.” Under these circumstances, the statute provides that

       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. [MCL 769.34(4)(a).]




       31
         MCL 769.34(2)(b). MCL 769.34 does not apply when a defendant is
convicted of an offense punishable by a prison sentence of “life or any term of
years” because the minimum will never exceed ⅔ of the statutory maximum
sentence of life authorized by the jury verdict. Drohan, supra at 162 n 14.
       32
            People v Stauffer, 465 Mich 633, 636 n 8; 640 NW2d 869 (2002).
       33
            MCL 769.34(4)(c).



                                         18

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. Intermediate sanction includes, but is not limited to, 1 or more of”

several options, including probation with any conditions authorized by law,

probation with jail, treatment for substance abuse or mental health conditions, and

other options such as house arrest and community service.34 Defendants argue

that, because the statute states that the sentencing court “shall” impose an


      34
           The nonexhaustive list of intermediate sanction options includes:
             (i) Inpatient or outpatient drug treatment or participation in a
      drug treatment court under chapter 10A of the revised judicature act
      of 1961, 1961 PA 236, MCL 600.1060 to 600.1082.
             (ii) Probation with any probation conditions required or
      authorized by law.
               (iii) Residential probation.
               (iv) Probation with jail.
               (v) Probation with special alternative incarceration.
               (vi) Mental health treatment.
               (vii) Mental health or substance abuse counseling.
               (viii) Jail.
               (ix) Jail with work or school release.
            (x) Jail, with or without authorization for day parole under
      1962 PA 60, MCL 801.251 to 801.258.
               (xi) Participation in a community corrections program.
               (xii) Community service.
               (xiii) Payment of a fine.
               (xiv) House arrest.
               (xv) Electronic monitoring. [MCL 769.31(b).]



                                           19

intermediate sanction, they were constitutionally entitled under Blakely to either a

jail term of 12 months or less or one or more of the other intermediate sanction

options available to the sentencing court.

       Most significantly, they cite Cunningham v California, 549 US ___; 127 S

Ct 856; 166 L Ed 2d 856 (2007), in which the United States Supreme Court

examined California’s determinate sentencing law (DSL), which contains

language that is superficially similar to the language describing intermediate

sanction cells in MCL 769.34(4)(a) quoted above.35           In Cunningham, the

defendant was tried and convicted of continuous sexual abuse of a child under the

age of 14.36 The statute defining the offense prescribed three precise terms of

imprisonment—lower, middle, and upper terms of 6, 12, and 16 years,

respectively.37 The statute that controlled which term a sentencing judge should

impose provided that “‘the court shall order imposition of the middle term, unless

there are circumstances in aggravation or mitigation of the crime.’”38

Circumstances in aggravation or mitigation were to be determined by the court

after considering the trial record, the probation officer’s report, statements


       35
            Cunningham, supra, 127 S Ct at 861-862.
       36
            Id., 127 S Ct at 860.
       37
         Id., 127 S Ct at 861, citing Cal Penal Code 288.5(a) (stating that a person
convicted of continuous sexual abuse of a child “shall be punished by
imprisonment in the state prison for a term of 6, 12, or 16 years”).
       38
        Cunningham, supra, 127 S Ct at 861, quoting Cal Penal Code 1170(b)
(emphasis added).



                                         20

submitted by the parties, the victim, or the victim’s family, and “‘any further

evidence introduced at the sentencing hearing.’”39 The judge in Cunningham

sentenced the defendant to the 16-year upper term on the basis of the judge’s

findings of aggravating facts, including the particular vulnerability of the victim

and the defendant’s violent conduct, which indicated a serious danger to the

community.40

      The Cunningham Court concluded that the sentence violated the

defendant’s rights because

      an upper term sentence may be imposed only when the trial judge
      finds an aggravating circumstance. . . . An element of the charged
      offense, essential to a jury’s determination of guilt, or admitted in a
      defendant’s guilty plea, does not qualify as such a circumstance. . . .
      Instead, aggravating circumstances depend on facts found discretely
      and solely by the judge. In accord with Blakely, therefore, the middle
      term prescribed in California’s statutes, not the upper term, is the
      relevant statutory maximum. 542 U.S., at 303, 124 S.Ct. 2531
      (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum
      sentence a judge may impose solely on the basis of the facts
      reflected in the jury verdict or admitted by the defendant.” (emphasis
      in original)). Because circumstances in aggravation are found by the
      judge, not the jury, and need only be established by a preponderance
      of the evidence, not beyond a reasonable doubt, . . . the DSL violates
      Apprendi’s bright-line rule: Except for 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.” 530 U.S., at 490, 120 S.Ct. 2348. [Cunningham,
      supra, 127 S Ct at 868.]



      39
           Cunningham, supra, 127 S Ct at 861-862, quoting Cal Penal Code
1170(b).
      40
           Cunningham, supra, 127 S Ct at 860.



                                        21

       Defendants argue that MCL 769.34(4)(a), which similarly provides that 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,” renders their sentences indistinguishable from the

invalid sentence in Cunningham. We hold that the superficial similarity of the

statutory language in California’s determinate scheme does not transform

Michigan’s intermediate sanction cells into the relevant statutory maximums for

Blakely purposes. Rather, the similar language in MCL 769.34(4)(a) yields a

different result when read in the context of Michigan’s indeterminate scheme.

       Statutes that address the same subject or share a common purpose are in

pari materia and must be read together as a whole.41 This general rule not only

applies to our interpretation of Michigan’s sentencing scheme, it requires us to

examine it in the context of related statutes, including laws defining intermediate

sanctions such as probation.42 Further, we presume that a statute is constitutional.

“We exercise the power to declare a law unconstitutional with extreme caution,

and we never exercise it where serious doubt exists with regard to the conflict.”

Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004).43


       41
            People v Buehler, 477 Mich 18, 26-27; 727 NW2d 127 (2007).
       42
            Id.
       43
            See also Sears v Cottrell, 5 Mich 251, 259 (1858):

             No rule of construction is better settled in this country, both
       upon principle and authority, than that the acts of a state legislature
                                                                      (continued…)

                                          22

      Michigan’s sentencing laws clearly require that the maximum portion of

every indeterminate sentence be no less than the “maximum penalty provided by

law . . . .”     MCL 769.8(1).     Thus, the “‘statutory maximum’ for Apprendi

purposes,” or “the maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant,”44 is the

maximum term set by statute for each enumerated offense.45 Thus, when Harper

pleaded guilty of larceny in a building, his guilty plea alone required the

imposition of a maximum sentence of four years’ imprisonment. Similarly, when

Burns pleaded guilty of attempted breaking and entering, his conviction required

the imposition of a five-year maximum sentence. The guidelines calculations,

which might result in an intermediate sanction cell, relate solely to a defendant’s

recommended minimum sentence range. The guidelines do nothing to alter or

affect the maximum sentence that must be imposed solely on the basis of the jury



(…continued)
     are to be presumed constitutional until the contrary is shown; and it
     is only when they manifestly infringe some provision of the
     constitution that they can be declared void for that reason. In cases
     of doubt, every possible presumption, not clearly inconsistent with
     the language and the subject matter, is to be made in favor of the
     constitutionality of the act.
      44
           Blakely, supra at 303 (emphasis in original).
      45
         As we have explained, the habitual-offender statutes provide a slight
exception to this rule by permitting a sentencing judge to increase a maximum
sentence on the basis of the fact of prior conviction. See n 21 of this opinion; see
also Drohan, supra at 161 n 13.



                                          23

verdict or the guilty plea. The language of our sentencing scheme makes this clear

in several ways.

        MCL 769.8 describes a judge’s general sentencing powers and duties:

                (1) When a person is convicted for the first time for
        committing a felony and the punishment prescribed by law for that
        offense may be imprisonment in a state prison, the court imposing
        sentence shall not fix a definite term of imprisonment, but shall fix a
        minimum term, except as otherwise provided in this chapter. The
        maximum penalty provided by law shall be the maximum sentence in
        all cases except as provided in this chapter and shall be stated by
        the judge in imposing the sentence.

               (2) Before or at the time of imposing sentence, the judge shall
        ascertain by examining the defendant under oath, or otherwise, and
        by other evidence as can be obtained tending to indicate briefly the
        causes of the defendant’s criminal character or conduct, which facts
        and other facts that appear to be pertinent in the case the judge shall
        cause to be entered upon the minutes of the court. [Emphasis
        added.]

Thus, the statute requires that a judge “shall fix a minimum term,” but “[t]he

maximum penalty provided by law shall be the maximum sentence in all

cases . . . .”   MCL 769.8(1) (emphasis added).         Although each mandate is

modified by “except as otherwise provided in this chapter” or “except as provided

in this chapter,” respectively, this or similar language has been included in the

statute since it was enacted in 1927.46 Accordingly, this language creating an

exception to the rule that “[t]he maximum penalty provided by law shall be the


        46
         1927 PA 175. The language originally read “except as hereinafter
provided” and “except as herein provided.” It was modified to its current form by
1978 PA 77.



                                          24

maximum sentence” was not originally aimed at intermediate sanction cells;

intermediate sanction cells were first suggested in the sentencing scheme in 1994

and are a mandatory component of sentencing only for crimes committed after

January 1, 1999.47 Therefore, it takes further examination of the statutory scheme

to discern whether intermediate sanctions are meant to be exceptions to the rule.

      The Legislature explicitly described exceptions to indeterminate sentencing

in our sentencing scheme. For example, MCL 769.9(1) provides: “The provisions

of this chapter relative to indeterminate sentences shall not apply to a person

convicted for the commission of an offense for which the only punishment

prescribed by law is imprisonment for life.” Similarly, MCL 769.9(2) addresses

cases in which the sentencing judge has the option to impose a sentence of either

life imprisonment or a term of years. If the judge imposes a sentence of life

imprisonment, the judge may not also impose a separate minimum sentence. MCL

769.9(2). As we noted previously, the Legislature also explicitly provided for

determinate sentences for a limited number of particular offenses, such as

possession of a firearm during the commission of a felony, MCL 750.227b. In

contrast, nowhere did the Legislature state that intermediate sanctions are an

exception to indeterminate sentencing.

      To the contrary, intermediate sanctions are an explicit component of the

statutory scheme for setting a defendant’s minimum sentence.    A sentencing court


      47
           1994 PA 445; MCL 769.34(2), as amended by 1998 PA 317.


                                         25

calculates a defendant’s PRVs and OVs in order to determine “the recommended

minimum sentence range.”     MCL 777.21(1) (emphasis added).      MCL 769.34

governs the courts’ application of the guidelines and consistently addresses the

minimum sentence range. For instance, MCL 769.34(2) provides:

             Except as otherwise provided in this subsection or for a
      departure from the appropriate minimum sentence range provided
      for under subsection (3), the minimum sentence imposed by a court
      of this state for a felony enumerated in part 2 of chapter XVII
      committed on or after January 1, 1999 shall be within the
      appropriate sentence range under the version of those sentencing
      guidelines in effect on the date the crime was committed.

Subsection 4 defines intermediate sanction cells on the basis of the upper and

lower limits of the “recommended minimum sentence range.” MCL 769.34(4)(a)

and (c) (emphasis added). The statutory maximum for the relevant offense—

which is the maximum authorized by the conviction and therefore the relevant

maximum for Blakely purposes—has never changed.

      That the statutory maximum is not altered by an intermediate sanction cell

becomes particularly evident when we consider the range of intermediate

sanctions available to the sentencing judge. Most significantly, judges commonly

impose a term of probation, which may also be combined with other sanctions

such as jail or substance abuse treatment.48     Accordingly, the nature of a



      48
            See MCL 769.31(b)(i), (ii), and (iv), concerning drug treatment,
probation with any conditions required or authorized by law, and probation with
jail, respectively.



                                      26

probationary sentence aids our understanding of whether the Legislature intended

intermediate sanctions to constitute maximum terms for Blakely purposes.

      MCL 771.1(1), originally enacted in 1927,49 authorizes a sentencing judge

to impose probation in lieu of prison for most crimes if the judge “determines that

the defendant is not likely again to engage in an offensive or criminal course of

conduct and that the public good does not require that the defendant suffer the

penalty imposed by law.”50 Thus, the imposition of probation is a permissive

matter left to the discretion of the sentencing judge. The Legislature provided a

detailed definition of probationary sentences in MCL 771.4:

             It is the intent of the legislature that the granting of probation
      is a matter of grace conferring no vested right to its continuance. If
      during the probation period the sentencing court determines that the
      probationer is likely again to engage in an offensive or criminal
      course of conduct or that the public good requires revocation of
      probation, the court may revoke probation. All probation orders are
      revocable in any manner the court that imposed probation considers
      applicable either for a violation or attempted violation of a
      probation condition or for any other type of antisocial conduct or
      action on the probationer’s part for which the court determines that
      49
           1927 PA 175.
      50
           MCL 771.1(1) provides in full:
              In all prosecutions for felonies, misdemeanors, or ordinance
      violations other than murder, treason, criminal sexual conduct in the
      first or third degree, armed robbery, or major controlled substance
      offenses, if the defendant has been found guilty upon verdict or plea
      and the court determines that the defendant is not likely again to
      engage in an offensive or criminal course of conduct and that the
      public good does not require that the defendant suffer the penalty
      imposed by law, the court may place the defendant on probation
      under the charge and supervision of a probation officer.



                                         27

       revocation is proper in the public interest. Hearings on the
       revocation shall be summary and informal and not subject to the
       rules of evidence or of pleadings applicable in criminal trials. In its
       probation order or by general rule, the court may provide for the
       apprehension, detention, and confinement of a probationer accused
       of violating a probation condition or conduct inconsistent with the
       public good. The method of hearing and presentation of charges are
       within the court’s discretion, except that the probationer is entitled to
       a written copy of the charges constituting the claim that he or she
       violated probation and to a probation revocation hearing. The court
       may investigate and enter a disposition of the probationer as the
       court determines best serves the public interest. If a probation order
       is revoked, the court may sentence the probationer in the same
       manner and to the same penalty as the court might have done if the
       probation order had never been made. [Emphasis added.]

Thus, probation is, by definition, “a matter of grace conferring no vested right to

its continuance.” When a judge imposes a sentence of probation, the Legislature

intended that probation be revocable on the basis of a judge’s findings of fact at an

informal hearing, and largely at the judge’s discretion. Indeed, a judge may

revoke probation for “antisocial conduct or action on the probationer’s part for

which the court determines that revocation is proper in the public interest.” Id.

       In accord, the United States Supreme Court has recently reaffirmed that

probation revocation hearings may be “‘proceedings in which the trial rights of a

jury and proof beyond a reasonable doubt, among other things, do not apply.’”

Samson v California, ___ US ___, ___; 126 S Ct 2193, 2198; 165 L Ed 2d 250

(2006), quoting United States v Knights, 534 US 112, 120; 122 S Ct 587; 151 L

Ed 2d 497 (2001). “Inherent in the very nature of probation is that probationers

‘do not enjoy “the absolute liberty to which every citizen is entitled.”’” Knights,




                                          28

supra at 119 (citations omitted). Cf. United States v Cranley, 350 F3d 617, 621

(CA 7, 2003) (“[I]t has long been understood that a fundamental and unchallenged

condition of probation is that the probationer surrender his right to trial by jury

should the government seek revocation, and thus imprisonment.”).

      Moreover, for this reason, federal courts observe that the rule of Blakely

and Apprendi does not apply to probation revocation hearings. In the words of the

Court of Appeals for the Second Circuit,

      a sentence of supervised release by its terms involves a surrender of
      certain constitutional rights and this includes surrender of the due
      process rights articulated in Apprendi . . . .
             . . . Given a prior conviction and the proper imposition of
      conditions on the term of supervised release, when a defendant fails
      to abide by those conditions the government is not then put to the
      burden of an adversarial criminal trial. [United States v Carlton, 442
      F3d 802, 809 (CA 2, 2006), quoted with approval by United States v
      Cordova, 461 F3d 1184, 1187 (CA 10, 2006).]

The Court of Appeals for the Ninth Circuit recently reached the same conclusion

when addressing arguments similar to those advanced by defendant Burns. In

United States v Ray, 484 F3d 1168, 1169 (CA 9, 2007), the defendant was initially

sentenced to a short prison term, followed by a three-year term of supervised

release. She later admitted that she had violated certain conditions of the release,

and the court revoked her supervised release. Id. She argued that her maximum

term of imprisonment for purposes of resentencing was the high end of her federal

sentencing guidelines range, rather than the statutory maximum imposed by the

United States Code. Id. at 1170. The court observed that the courts of appeals in



                                        29

the First, Second, and Fifth circuits had already rejected this argument in the

supervised release context. Id. at 1171-1172. Further, the federal circuits had

unanimously rejected the same argument in the analogous context of resentencing

after revocation of probation. See id. at 1172. The Ninth Circuit held:

             We now join our sister circuits in holding that [United States
      v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005), the
      counterpart to Blakely in the federal sentencing context,] does not
      define the “statutory maximum” as the high end of the Guidelines
      range for sentences imposed for violations of supervised release.
      Instead, the definition of “statutory maximum” continues to come
      from the United States Code. We may not modify Congress’ clear
      intent that the statutory maximum determines the allowable period
      of imprisonment after the revocation of supervised release, even if
      the Guidelines prescribed a lower maximum sentence for the
      particular defendant. [Id. at 1171.][51]


      51
          Justice Kelly contends that differences between Michigan’s sentencing
scheme and the federal sentencing scheme preclude any comparison in this
context. She observes that, under the federal scheme, a judge need not adhere to
the originally established guidelines range when resentencing a defendant after he
violates the conditions of probation. Post at 17, citing United States v Goffi, 446
F3d 319, 322 (CA 2, 2006). Rather, upon resentencing, a federal judge consults
relevant guidelines or policy statements issued by the United States Sentencing
Commission. Id.; 18 USC 3553(a)(4)(B). The judge is free to exceed the initial
guidelines range as long as the sentence is still within the absolute statutory
maximum for the underlying conviction. Goffi, supra at 322-323. For
comparison, in Michigan the sentencing guidelines continue to apply in this
context and, as usual, a judge must sentence the defendant within the guidelines or
state substantial and compelling reasons for departure. People v Hendrick, 472
Mich 555, 560, 562-563; 697 NW2d 511 (2005). Moreover, “it is perfectly
acceptable to consider postprobation factors in determining whether substantial
and compelling reasons exist to warrant an upward departure.” Id. at 562-563.
      We fail to see how the differences between the two schemes “completely
undermine[] [our] argument.” Post at 17-18. The federal system affords a judge
general discretion to exceed the original guidelines range when sentencing a
defendant who has violated probation as long as the judge consults relevant
                                                                (continued…)

                                        30

       Perhaps most significantly, the Michigan Legislature did not modify or

repeal the probation statutes when it enacted the mandatory sentencing guidelines.

Rather, the statutes inform each other. The limits of a sentence that includes

probation are defined in MCL 771.1 et seq., which provide, for instance, time

limits for probationary sentences on the basis of the crime committed. See, e.g.,

MCL 771.2; MCL 771.2a. Indeed, the statute defining intermediate sanction cells,

MCL 769.34(4)(a), does not define or limit available intermediate sanctions; it

merely relies on and reiterates definitions of intermediate sanctions provided by

other statutes.   Crucially, the mandate in MCL 769.34(4)(a) that a jail term

imposed as part of an intermediate sanction may not “exceed the upper limit of the

recommended minimum sentence range or 12 months, whichever is less,”

reiterates a mandate from the probation statutes that long preceded the enactment

of MCL 769.34.52 MCL 771.3(2) provides, in part:

              As a condition of probation, the court may require the
       probationer to do 1 or more of the following:



(…continued)
guidelines or policy statements. The Michigan system affords such discretion as
long as the judge gives legally sufficient substantial and compelling reasons for
departure. In both systems, the statutory maximum authorized by jury verdict or
the defendant’s guilty plea has not changed and may not be exceeded. Neither
system grants a defendant a special right to a sentence limited to the initial
guidelines range merely because he was initially afforded probation and chose to
violate the probationary conditions.
       52
          The 12-month limit placed on jail time by MCL 771.3(2)(a) has been
effective since 1981, when it was increased from six months by 1980 PA 514.



                                       31

             (a) Be imprisoned in the county jail for not more than 12
       months, at the time or intervals, which may be consecutive or
       nonconsecutive, within the probation as the court determines.
       However, the period of confinement shall not exceed the maximum
       period of imprisonment provided for the offense charged if the
       maximum period is less than 12 months. [Emphasis added.]


       Thus, first, the 12-month limitation, as restated in MCL 769.34(4)(a), is not

a new, independent limit on jail time established by the sentencing guidelines in

the intermediate sanction cell context.    Second, the nature of a probationary

sentence clearly reveals the Legislature’s intent that the 12-month limit on

incarceration may be exceeded, even when jail time is imposed pursuant MCL

769.34(4)(a). “Probation with jail” is explicitly listed as an intermediate sanction

in MCL 769.31(b)(iv). Yet if a judge imposes an initial jail term of 12 months or

less with a term of probation, the term of probation effectively becomes

meaningless.53 For if a judge may never impose additional imprisonment, he is

unable to revoke probation. This is because, when revoking probation, “the court

may sentence the probationer in the same manner and to the same penalty as the

court might have done if the probation order had never been made.” MCL 771.4.

But to avoid placing a defendant in double jeopardy by punishing him twice for


      53
         Justice Kelly contrasts a situation in which a defendant is sentenced only
to 12 months or less of jail time without a period of probation. Post at 17 n 12. A
judge may simply sentence a defendant to jail with no further monitoring or
evaluation. But the statute also empowers the judge to impose both jail and
probation. It is this latter option that Justice Kelly’s analysis would render
impossible to exercise.



                                        32

the same offense, a judge must subtract the initial jail term from any term of

incarceration he imposes upon revocation and resentencing.54 If the judge could

not depart upward by considering postprobation factors, such as the defendant’s

probation-violating behavior, the judge would be effectively unable to revoke

probation or resentence the defendant because the judge would have exhausted his

ability to impose jail time. The same problem would occur even when a judge

initially sentenced a defendant only to probation; if the defendant continually

violated probation after multiple revocations and one or more short jail sentences,

the judge would quickly lose the ability to revoke probation by exhausting the 12

months of available jail time. The overall result would be essentially to make 12

months of jail or less the only sanction truly available to judges in the intermediate

sanction cell context; after a defendant had served 12 months in jail, a judge would

have no means to enforce the conditions of other sanctions such as probation.55

       In sum, we find no basis for the conclusion that the Legislature intended an

intermediate sanction to become a new statutory maximum for Blakely purposes


       54
        People v Sturdivant, 412 Mich 92; 312 NW2d 622 (1981), mod People v
Whiteside, 437 Mich 188 (1991); see also North Carolina v Pearce, 395 US 711;
89 S Ct 2072; 23 L Ed 2d 656 (1969), overruled in part on other grounds by
Alabama v Smith, 490 US 794 (1989).
       55
          Justice Kelly essentially treats the 12-month jail term as the only
meaningful measure of an intermediate sanction, saying that the term “defines the
upper limit of an intermediate sanction cell sentence[.]” Post at 15. But because
intermediate sanctions can include a jail term added to other sanctions, any
characterization of the “upper limit” of an intermediate sanction must take into
account the nature and effect of additional sanctions such as probation.



                                         33

when a defendant’s minimum sentence range is in an intermediate sanction cell.56

To hold otherwise ignores the definition and function of intermediate sanctions

such as probation and deprives them of their intended effect. Further, imposition

of an intermediate sanction never affects the maximum sentence “provided by

law,” MCL 769.8(1), as listed in MCL 777.11 et seq., for the crime of which the

defendant has been convicted. When statutes, such as those listed in MCL 777.11

et seq., establish absolute maximum sentences on the basis of the elements of the

offense, it is entirely within a legislature’s province to authorize judges to exercise

their discretion and expertise when sentencing defendants below those maximum

limits, as they do by sentencing and monitoring probationers, as well as by

subsequently revoking a probationary sentence, if appropriate.             As Justice

Kennedy lucidly explained in his plurality opinion in Harris v United States, 536

US 545, 567; 122 S Ct 2406; 153 L Ed 2d 524 (2002) (Kennedy, J., joined by

Rehnquist, CJ., and O’Connor and Scalia, JJ.):


       56
          Moreover, we disagree with Justice Kelly that, “[e]ven if the Legislature
intended [that probation violators be punished with more than 12 months in jail], it
is irrelevant.” Post at 21. As we have explained, the Legislature has successfully
conveyed its intent—and therefore has also put potential offenders on notice—that
no defendant is guaranteed a sentence of only 12 months’ jail time merely because
his minimum sentence range under the guidelines falls into an intermediate
sanction cell. Thus, even under Justice Kelly’s theory that the legislative scheme
appears to improperly shift sentencing discretion to judges under limited
circumstances, the Legislature’s clear intent in this area would require a result like
the one employed in Booker. There the United States Supreme Court rendered the
offending portions of the federal sentencing guidelines advisory in order to best
effectuate Congress’s intent in enacting them. Booker, supra at 245, 265.



                                          34

              Read together, McMillan [v Pennsylvania, 477 US 79; 106 S
       Ct 2411; 91 L Ed 2d 67 (1986)] and Apprendi mean that those facts
       setting the outer limits of a sentence, and of the judicial power to
       impose it, are the elements of the crime for the purposes of the
       constitutional analysis. Within the range authorized by the jury’s
       verdict, however, the political system may channel judicial
       discretion—and rely upon judicial expertise—by requiring
       defendants to serve minimum terms after judges make certain factual
       findings.

Our Legislature clearly limits sentencing judges’ exercise of discretion when it

sees fit to do so, as exemplified by the crimes for which judges must impose

statutorily mandated terms, such as life in prison, MCL 769.9(1), or a determinate

number of years, MCL 750.227b. Blakely does not foreclose the Legislature’s

concomitant ability to define circumstances under which a judge may exercise

sentencing discretion within the outer limit authorized by the jury verdict, as in the

intermediate sanction context.

       In Michigan, every offender is on notice of the maximum sentence to which

he is subject on the basis of the elements of the crime when he is convicted either

by a jury or as the result of a plea, as is exemplified by these cases. In Harper, for

instance, before Harper pleaded guilty of larceny in a building the judge informed

him, as required by MCR 6.302(B)(2), that the maximum penalty for the crime is

four years in prison.57 The judge also specifically responded when Harper stated

that he had heard that the judge “was a fair judge and wouldn’t go over the



       57
            See MCL 777.16r.



                                         35

guidelines . . . .” The judge explained, first, that lawyers’ initial guidelines

estimations are often wrong. The judge added:

             . . . I don’t know what your history is, I might wanna drop a
      big hammer on you or I might just decide to give you a feather and
      tell you to walk out of the door, I don’t know what I’m going to do
      and I’m not making any predications today . . . .

When asked if he understood this, Harper responded: “Yes, sir, your Honor.”

When asked if anyone had told him that the judge would “go easy on” him, Harper

answered: “No, sir.” The judge continued:

             Now, I’ve asked you all those kinds of questions because you
      could file an appeal later on and you could say that there was
      something else going on, for example, like Mr. Harper could say that
      his lawyer promised him that he would get no worse than jail or
      probation and I decide to send him off to prison . . . .

Finally, just before Harper established the factual basis for his plea, the judge

explained:

              . . . I could sentence you to go to jail, or I could sentence you
      to probation, or I could fine you up to 5,000 dollars, I can make you
      pay a bunch of court cost[s], I could even send you off to prison as
      long as four years, do you understand?

Harper responded: “Yes, sir.”58

      In contrast, the defendant in Cunningham did not have the same

expectation under California’s DSL.        California’s determinate scheme was



      58
         The record in Burns does not contain a transcript of the plea hearing, but
Burns does not contend that the trial judge failed to advise him of the five-year
maximum prison sentence for attempted breaking and entering, as the judge was
required to do under MCR 6.302(B)(2).



                                         36

premised on a defendant’s right to a fixed, middle term sentence. The DSL then

permitted the judge, after conviction, to sentence a defendant to a higher or lower

term based on judicial fact-finding.59 Thus, upon conviction of continuous sexual

abuse of a child, the Cunningham defendant had a legal entitlement to the

statutory middle term of 12 years’ imprisonment. The sentencing judge violated

Blakely by sentencing him to 16 years on the basis of the judge’s own findings.60

Significantly, the Supreme Court of California attempted to justify its scheme

based on its conclusion that, “‘in operation and effect,’ . . . the DSL ‘simply

authorize[s] a sentencing court to engage in the type of factfinding that

traditionally has been incident to the judge’s selection of an appropriate sentence

within a statutorily prescribed sentencing range.’” Cunningham, supra, 127 S Ct

at 868, quoting People v Black, 35 Cal 4th 1238, 1254; 29 Cal Rptr 3d 740; 113

P3d 534 (2005), vacated sub nom Black v California ___ US ___; 127 S Ct 1210

(2007). The Cunningham Court rejected this reasoning, stating: “If the jury’s

verdict alone does not authorize the sentence, if, instead, the judge must find an

additional fact to impose the longer term, the Sixth Amendment requirement is not

satisfied.” Cunningham, supra, 127 S Ct at 869.

      Michigan’s scheme is inherently different from California’s DSL, however,

as we have explained.      We need not attempt to invoke sentencing judges’


      59
           Cunningham, supra, 127 S Ct at 861-862.




                                        37

traditional discretion in order to avoid the plain language of our statute. Under the

plain language of the DSL, the elements of the crime entitled a defendant to a

presumptive middle term. Therefore, the DSL is like the hypothetical determinate

system described in Blakely “that punishes burglary with a 10-year sentence, with

another 30 added for use of a gun . . . .”61 In such a system, “the burglar who

enters a home unarmed is entitled to no more than a 10-year sentence . . . .”62

Under the plain language of our sentencing scheme, on the other hand, Harper was

entitled to the statutory maximum of four years’ imprisonment when he pleaded

guilty of larceny in a building, as he agreed he was fully aware, and Burns was

entitled to the statutory maximum of five years’ imprisonment when he pleaded

guilty of attempted breaking and entering of a building. Thus, our system mirrors

the Blakely Court’s hypothetical indeterminate system “that says the judge may

punish burglary with 10 to 40 years,” and, therefore, under which “every burglar

knows he is risking 40 years in jail.”63

       Our statutes clearly describe the range of intermediate options available to

the sentencing judge, and the nature and effect of those options, when a

defendant’s minimum sentence range under the guidelines is in an intermediate


(…continued)
     60
        Id., 127 S Ct at 868.
       61
            Blakely, supra at 309.
       62
            Id.
       63
            Id.



                                           38

sanction cell. A defendant is not entitled to a circumscribed term of prison when

he qualifies for an intermediate sanction, as was the case with the middle term

prescribed by California’s DSL. Rather, a Michigan defendant expects a range of

possible sanctions, including jail and probation. He is also clearly aware that

probation may be revoked—and that additional incarceration may therefore be

imposed—at a hearing subject to a lower standard of proof than that required at

trial. These clear expectations on the part of defendants are what cause us to reject

Justice Kelly’s contention that “[t]here is no meaningful difference between a

Michigan court departing from an intermediate sanction cell and a California court

imposing the upper term available under [the DSL].” Post at 14. A Michigan

defendant is fully on notice that he never gains an entitlement to a mere 12 months

in jail.

           In sum, as is exemplified by these cases, Michigan’s intermediate sanction

cells are part of the legislative scheme for setting a minimum sentence that is

tailored to the offender’s history and the circumstances of the offense.         The

statutes governing a sentencing court’s imposition of a minimum sentence never

allow a judge to exceed the maximum sentence authorized by a jury verdict or a

guilty plea.       Even when a defendant’s minimum sentence range is in an

intermediate sanction cell, the Legislature made clear its intent that the sentencing

judge retain the discretion to exceed the list of intermediate sanctions, and to




                                           39

impose a minimum sentence of up to ⅔ of the statutory maximum, if an

intermediate sanction is inappropriate in a given case.

       When a defendant’s minimum sentence range under the guidelines is in an

intermediate sanction cell, the defendant has a statutory right to an intermediate

sanction, conditioned on the absence of substantial and compelling reasons to

depart upward. Therefore, a defendant may appeal an upward departure on the

basis of an alleged violation of this statutory right by arguing that the sentencing

judge did not state on the record a legally sufficient substantial and compelling

reason to depart. But the defendant does not gain a constitutional right to an

intermediate sanction under Blakely.           Indeed, the essence of defendants’

arguments here is that Blakely entitles them to a sentence that is less than the

maximum authorized by the jury verdict or the guilty plea. But Blakely, which

prohibits a judge from exceeding the maximum authorized by the jury verdict or

the guilty plea, does not require this result. Allowing judges to impose any

sentence that is less than the authorized maximum does not implicate a

defendant’s Sixth Amendment rights because it does not usurp the jury’s task of

finding the facts that set the maximum sentence.          Thus, in the intermediate

sanction cell context, because the defendant’s sentence never exceeds the

maximum sentence authorized by the jury verdict or the guilty plea, the sentencing

judge may exercise his statutorily granted discretion to depart upward on the basis

of facts not found by a jury.



                                         40

      In Harper, faced with intermediate options such as jail and probation, the

sentencing judge observed several factors, including, most significantly, Harper’s

record of bench warrants, his three parole revocations, and his history of

absconding from parole. These factors were not included in Harper’s PRV score,

and they certainly cast doubt on the appropriateness of a sentence that would again

include probation. As a result, these factors alone constituted substantial and

compelling reasons to sentence Harper to the jurisdiction of the Department of

Corrections. Accordingly, we affirm Harper’s sentence.

      In Burns, the judge found substantial and compelling reasons to exceed the

guidelines on the basis of Burns’s admission to the officer that he had touched a

young woman’s buttocks and the uncontroverted testimony of two young women

that Burns had harassed and intimidated them. This evidence was not considered

in scoring the guidelines for Burns originally because it occurred after the judge

had originally sentenced Burns to three years of probation. Burns’s objective and

verifiable behavior while on probation certainly provided substantial and

compelling reasons to sentence Burns to the jurisdiction of the department of

corrections rather than impose an intermediate sanction. Accordingly, we affirm

Burns’s sentence.

                    C. HARMLESS ERROR UNDER BLAKELY

      Finally, we find it important to note that Blakely errors are reviewed for

harmless error. Accordingly, we add that even if an intermediate sanction is



                                        41

construed as a maximum sentence for Blakely purposes, in each of these cases, if

an error occurred, it was harmless beyond a reasonable doubt.

       In Washington v Recuenco, ___ US ___; 126 S Ct 2546, 2553; 165 L Ed 2d

466 (2006), the United States Supreme Court ruled that Blakely errors are not

structural, but are subject to harmless error analysis. The Court had already

rejected the argument that failure to submit aggravating facts to a jury offends a

“watershed” rule of criminal procedure, such that it undermines the fairness and

accuracy of the overall proceeding, in Schriro v Summerlin, 542 US 348, 355-356;

124 S Ct 2519; 159 L Ed 2d 442 (2004) (holding that such errors do not offend

any “watershed” rule of criminal procedure to the extent of requiring retroactive

application). In Schriro, the Court explained that it could not “confidently say that

judicial factfinding seriously diminishes accuracy.” Id. at 356.

       Recuenco compared Blakely errors to the error analyzed in Neder v United

States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999). Neder involved a jury

trial for charges that included tax fraud.64 One element of the offenses was the

materiality of the fraudulent representation on the defendant’s tax form. The trial

court constitutionally erred when it failed to submit the question of materiality—as

an element of the offense—to the jury and, instead, decided the issue itself.65 The

error was harmless, however, because uncontested facts presented at trial showed


       64
            Neder, supra at 4.




                                         42

that the misrepresentation—which consisted of the defendant’s failure to report $5

million of income—was material. Indeed, the defendant did not suggest that he

could introduce any contrary evidence, and he did not argue to the jury, or to the

courts on appeal, that his false statements could be found immaterial.66

Accordingly, the judge’s conclusion that the element of materiality was proved

was harmless beyond a reasonable doubt because no jury could reasonably find

otherwise.67 The Court summarized the analysis as follows: “In this situation,

where a reviewing court concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence, such that the

jury verdict would have been the same absent the error, the erroneous instruction

is properly found to be harmless.” Id. at 17.

       Recuenco, in turn, concluded that a similar analysis is appropriate if a trial

court fails to submit sentencing factors to a jury, because there is no distinction,

for Sixth Amendment purposes, between an element of an offense and a

sentencing factor that increases a sentence beyond the sentence authorized by the

elements of the offense.68 The Washington Supreme Court had previously held




(…continued)
     65
        Id.
       66
            Id. at 15-16.
       67
            Id. at 16.
       68
            Recuenco, supra, 126 S Ct at 2552-2553.



                                         43

that Blakely errors are structural.69 The Recuenco Court disagreed and remanded

the case, directing the Washington courts to analyze whether the error was

harmless.70



       69
            Id., 126 S Ct at 2550.
       70
          Id., 126 S Ct at 2553. Justice Kelly’s position would ultimately render
Blakely errors in Michigan harmful per se because Michigan “has no process for
criminal juries to make special findings of fact.” She states that “the procedural
discussion in Recuenco suggests that the prosecution could not carry its burden in
this case to prove the Blakely error harmless beyond a reasonable doubt.” Post at
25-26. When the defendant posed this argument in Recuenco, the United States
Supreme Court did not need to resolve the question. Rather, the question before
the Court was “whether Blakely error can ever be deemed harmless.” Recuenco,
supra, 126 S Ct at 2550-2551. Contrary to Justice Kelly’s contention, it was
unclear whether Washington “state law specifically allowed juries to make
findings of fact.” Post at 26. The high court left this question to the Washington
courts on remand. Recuenco, supra, 126 S Ct at 2550-2551. In any event, the
Recuenco Court questioned the defendant’s interpretation of Washington law,
observing that the Washington Court of Appeals had allowed juries to issue
special verdicts on aggravating factors and the Washington Supreme Court had
explicitly chosen not to establish a contrary rule in a case that did not squarely
present the question. Id., 126 S Ct at 2550.
       Similarly, Michigan law is not perfectly clear on this point. Justice Kelly
points to two nineteenth century cases in which this Court refused to allow the use
of special questions in criminal cases because such questions “limit[] . . . the right
of the jury to find a general verdict,” People v Roat, 117 Mich 578, 583; 76 NW
91 (1898), and because the then-governing statutes did not clearly permit it,
People v Marion, 29 Mich 31, 40-41 (1874). We note that, more recently, Justice
Levin observed, in his dissent in People v Ramsey, 422 Mich 500, 536; 375 NW2d
297 (1985), that many jurisdictions have concluded that not all use of special
verdicts is error per se because specific findings of fact may be necessary to
determine the nature of the conviction or the sentence. Indeed, the Michigan
Court of Appeals has implicitly condoned the use of special verdict forms
enabling a jury to find a particular fact under some circumstances. See People v
Matuszak, 263 Mich App 42, 51; 687 NW2d 342 (2004); People v Kiczenski, 118
Mich App 341, 345; 324 NW2d 614 (1982).
                                                                       (continued…)

                                         44

                                     1. HARPER 


       In Harper, defendant preserved the constitutional challenge to his sentence

by raising this issue in a motion for resentencing before the circuit court. Thus, as

in Neder, our review must consider whether the alleged error is harmless beyond a

reasonable doubt.71

       The sentencing judge here exceeded the list of intermediate sanctions, and

imposed a prison sentence on the basis of facts contained in the presentence

investigation report (PSIR). Contrary to Justice Kelly’s contention that “Harper

had no opportunity to present contrary evidence,” post at 27, the judge permitted


(…continued)
        Most significantly, the Recuenco Court did not reach the question whether
the unavailability of a particular procedure in the trial court necessarily renders all
errors harmful, in essence transforming Blakely errors into structural errors for all
defendants in a given state. As Justice Kelly ultimately concedes, at most
Recuenco “advises [that] the lack of a procedure for special findings will increase
the difficulty of the prosecution’s burden to prove any error harmless beyond a
reasonable doubt.” Post at 26 n 18. Moreover, any conclusion on our part—based
on dicta in Recuenco—that the lack of a procedure is alone dispositive would run
counter to the crux of the harmless error analysis that forms the basis of the
Recuenco Court’s holding. The central question remains whether the facts used by
a sentencing judge to support a sentence were “uncontested and supported by
overwhelming evidence,” such that a jury would have reached the same result.
Neder, supra at 17. To illustrate, as we will explain further in parts III(C)(1) and
(2) of this opinion, neither defendant in the cases before us seriously contends that
a jury would have returned findings different from those of the sentencing judge,
given the overwhelming evidence presented at each proceeding. Thus, even if the
sentencing judges erred under Blakely, the errors in these cases would be precisely
the sort of technical errors that do not require reversal under a harmless error
analysis because they do not affect the substance or outcome of the proceedings.
       71
         Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967);
People v Shepherd, 472 Mich 343; 697 NW2d 144 (2005).



                                          45

Harper and his attorney to review the PSIR and to challenge the accuracy of its

contents, as required by MCL 771.14(5) and (6). The judge also specifically

explained to Harper the importance of noting inaccuracies, saying: “Now,

sometimes they make mistakes on those reports and if they do it’s important that

you catch them, Mr. Harper, because we keep these reports for years and if there is

a mistake now it could be used against you next year . . . .” Harper stated that he

had read the PSIR. When asked if he saw any mistakes, he pointed out that a prior

felony conviction had not been included, previously, when his attorney estimated

his PRV score. He agreed that he understood that the felony was properly added,

however, and stated: “I’m not contesting anything . . . .” Defense counsel also

specifically indicated that “we ha[ve] reviewed this report, I have no additions,

corrections or deletions to the report.”72

       Now, on appeal, Harper makes no claim that his record—of parole

revocations, absconding from parole, bench warrants for failures to appear, and

run-ins with law enforcement in other states—is inaccurate.       During his oral


       72
         We also note, first, that Michigan courts have long held that a sentencing
court may presume that unchallenged facts contained in a PSIR are accurate.
People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). Second, we do
not need to reach the question whether Harper effectively admitted the facts
contained in the PSIR or waived his rights under Blakely, as is expressly permitted
by the Blakely Court when a defendant pleads guilty. Blakely, supra at 310. In
light of Harper’s express agreement that no corrections to the PSIR were
necessary, however, we note that, under many circumstances, a defendant waives
a right—and, for purposes of review, extinguishes rather than merely forfeits
                                                                     (continued…)



                                             46

argument before this Court, he mounted a slight challenge to the sentencing

judge’s conclusion that he had “ripped off a charity that was trying to do good for

cold children.” He claimed that “[n]othing at the plea talked about stealing coats

from children,” adding that, although Old News Boys is a “charity that served

needy people . . . , there’s lots of different needy people adult and children . . . .”

On this point, we simply note that, at the sentencing hearing, the president of Old

News Boys explained that the organization served “needy children and families

who are less fortunate.”

       Therefore, we conclude beyond a reasonable doubt that the facts used by

the sentencing judge to support Harper’s sentence were “uncontested and

supported by overwhelming evidence,” such that a jury would have reached the

same result.73 Indeed, like the defendant in Neder, Harper does not suggest that he

would offer contrary evidence, particularly concerning the facts contained in his

court records, if given the opportunity to do so.74 Accordingly, if the judge is

found to have violated Blakely at sentencing, any error is harmless beyond a

reasonable doubt and does not require reversal.




(…continued) 

error—when the defendant affirmatively agrees to a course of action in the trial 

court. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). 

       73
            Neder, supra at 17.
       74
            Id. at 15-16.



                                          47

                                    2. BURNS 


      Similarly, in Burns, we conclude that if any Blakely error is found to have

occurred, it would be harmless beyond a reasonable doubt.75 At sentencing on the

probation violation, the judge relied on evidence presented at the probation

violation hearing to conclude that substantial and compelling reasons existed to

depart from the original guidelines sentence. At the hearing, defense counsel did

not contest that his client had touched the young woman’s buttocks, nor did he

contest that his client had used alcohol in violation of his probation order. Burns

himself admitted to the officer that the sexual touching had occurred and that he

had consumed six beers.      The defense presented no evidence and called no

witnesses to contest these facts, despite having an opportunity to do so. We thus

conclude beyond a reasonable doubt that the facts used by the sentencing judge to

support Burns’s sentence were “uncontested and supported by overwhelming

evidence,” such that a jury would have reached the same result.76

                               IV. CONCLUSION

      For these reasons, we reaffirm our holding in Drohan that Michigan has a

true indeterminate sentencing system in which the statutory maximum is

prescribed by law and in which the sentencing guidelines are used only to


      75
           As in Harper, the defendant in Burns preserved the Blakely issue by
raising it in a motion for resentencing. Thus, we review whether the alleged error
is harmless beyond a reasonable doubt.




                                        48

determine a defendant’s minimum sentence. An intermediate sanction does not

constitute a maximum sentence under Blakely; it bears no relation to the maximum

sentence authorized by the jury verdict or the guilty plea. Rather, it establishes a

statutory right to a cap on the defendant’s period of incarceration, conditioned on

the absence of substantial and compelling reasons to depart upward. Significantly,

accepting defendants’ arguments in these cases would require us to conclude that

Blakely guarantees them a right to sentences that are less than those authorized by

a jury verdict or guilty plea; to the contrary, Blakely prohibits a sentencing judge

from exceeding the sentence authorized by the verdict or plea. Agreeing with

defendants would also deprive intermediate sanctions such as probation of much

of their intended effect. Finally, if any Blakely error is found to exist in either of

these cases, we are convinced that any such errors were harmless beyond a

reasonable doubt, given that the facts used by the sentencing judges were

uncontested and supported by overwhelming evidence, such that a jury would

have reached the same result. Accordingly, we affirm the defendants’ convictions

and sentences.

                                                         Maura D. Corrigan


(…continued)
     76
        Neder, supra at 17.




                                         49

      Clifford W. Taylor
      Elizabeth A. Weaver
      Robert P. Young, Jr.
      Stephen J. Markman




50

                         STATE OF MICHIGAN

                               SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                            No. 130988

BERNARD GEORGE HARPER, JR.,

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             No. 131898

JESSE GENE BURNS,

             Defendant-Appellant.


CAVANAGH, J. (concurring in part and dissenting in part).

       I concur with the result reached by the majority in People v Harper. Facts

admitted by a defendant may be used by a trial court to determine the relevant

statutory maximum. See Blakely v Washington, 542 US 296, 303; 124 S Ct 2531;

159 L Ed 2d 403 (2004). In light of the guidance and admonitions given by the

trial court, I believe that defendant Harper admitted to the facts used by the trial

court to sentence defendant when he pleaded guilty and stated that he did not

contest the information in the presentence investigation report.
       Moreover, I concur with the result advocated by Justice Kelly in her dissent

in People v Burns. I agree that the trial court did not articulate substantial and

compelling reasons to depart from the sentencing guidelines.            See People v

Babcock, 469 Mich 247; 666 NW2d 231 (2003). Thus, this case should be

remanded for resentencing.     Because the trial court did not comply with the

requirements for sentencing and this case can be decided on statutory grounds, it is

improper to address the constitutional issue decided by the majority.

                                                 Michael F. Cavanagh




                                         2

                          STATE OF MICHIGAN

                              SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                       No. 130988

BERNARD GEORGE HARPER, JR.,

             Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                        No. 131898

JESSE GENE BURNS,

             Defendant-Appellant.


KELLY, J. (dissenting).

      The Court heard oral argument in these cases along with People v

McCuller, which was on remand to us from the United States Supreme Court.

Michigan v McCuller, __ US ___; 127 S Ct 1247 (2007). My dissenting opinion

in McCuller contains my most thorough analysis of the application of the Sixth
Amendment1 to the Michigan sentencing guidelines.2 People v McCuller, 479

Mich ___; ___ NW2d ___ (Docket No. 128161, decided July 26, 2007). For a full

understanding of the issues involved, I urge the reader to turn to my dissent in that

case.

        With respect to Burns, this Court should not even reach the constitutional

issue. The trial court failed to articulate substantial and compelling reasons to

exceed the range set by the sentencing guidelines. Because of this, defendant

Jesse Burns is entitled to resentencing, irrespective of the constitutional issue.

        In Harper, the majority continues to exempt Michigan from the Sixth

Amendment precedent set by the United States Supreme Court in Jones v United

States3 and its progeny. However, it is clear to me that the judicial fact-finding

that took place in Harper violated Bernard Harper’s Sixth Amendment right to a

trial by jury. In fact, the violation is even clearer than the violation in McCuller.

Michigan’s sentencing guidelines are unconstitutional as applied. I would vacate


        1
            The Sixth Amendment of the United States Constitution provides:

                In all criminal prosecutions, the accused shall enjoy the right
        to a speedy and public trial, by an impartial jury of the State and
        district wherein the crime shall have been committed, which district
        shall have been previously ascertained by law, and to be informed of
        the nature and cause of the accusation; to be confronted with the
        witnesses against him; to have compulsory process for obtaining
        witnesses in his favor, and to have the Assistance of Counsel for his
        defence. [US Const, Am VI.]
        2
            MCL 777.1 et seq.




                                           2

the sentence and remand the case to the trial court for resentencing in a manner

that conforms to the Sixth Amendment.

                               I. PEOPLE V BURNS

                             A. PROCEDURAL FACTS

       In July 2002, Burns pleaded guilty of attempted breaking and entering.

MCL 750.110; MCL 750.92. It is undisputed that the guidelines range for his

minimum sentence was zero to 11 months. This range falls in what is properly

referred to as an intermediate sanction cell. MCL 769.34(4)(a) creates these cells.

It 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.

Pursuant to MCL 769.31(b), one possible intermediate sanction is probation. The

trial court in this case chose that option and sentenced Burns to three years’

probation.

       In 2005, the court found, by a preponderance of the evidence, that Burns

had violated his probation. At sentencing, the court noted that the original range



(…continued)
     3
       526 US 227; 119 S Ct 1215; 143 L Ed 2d 311 (1999).



                                        3

had been zero to 11 months.4 But it decided to exceed the range given in the

intermediate sanction cell and not impose an intermediate sanction. It sentenced

Burns to 1 1/2 to five years in prison.

       Because the court did not impose an intermediate sanction as a sentence, it

had to articulate a substantial and compelling reason for the departure. MCL

769.34(4)(a).   The court completed a sentencing information report departure

evaluation form stating its reason:

              The original SGL of 0-11months [sic] fails to consider his
       violation behavior—which constitutes a substantial and compelling
       reason for a moderate departure from this range.

No additional reasons were given.

 B. SUBSTANTIAL AND COMPELLING REASONS FOR THE GUIDELINES DEPARTURE

       The trial court’s statement in support of its departure does not constitute a

substantial and compelling reason to exceed the sentencing guidelines range.

              The phrase “substantial and compelling reason” has, in our
       judgment, acquired a peculiar and appropriate meaning in the law
       and, thus, it must be construed according to such meaning. That is, a
       “substantial and compelling reason” must be construed to mean an
       “objective and verifiable” reason that “‘keenly’ or ‘irresistibly’ grabs
       our attention”; is “of ‘considerable worth’ in deciding the length of a
       sentence”; and “exists only in exceptional cases.” [People v
       Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003), quoting
       People v Fields, 448 Mich 58, 62, 67-68; 528 NW2d 176 (1995).]



       4
        The sentencing court is required to apply the sentencing guidelines when
sentencing after a probation violation. People v Hendrick, 472 Mich 555, 560;
697 NW2d 511 (2005).



                                          4

Whether a reason for departure is objective and verifiable is a question of law

subject to review de novo. Babcock, 469 Mich at 265.

      In this case, the court relied solely on Burns’s postprobation conduct to

exceed the guidelines range. A sentencing court may consider postprobation

conduct when determining whether substantial and compelling reasons exist to

depart upward. But the fact that probation was violated does not automatically

constitute a substantial and compelling reason. People v Hendrick, 472 Mich 555,

562-563; 697 NW2d 511 (2005). The trial court’s statement on the departure

evaluation form does not satisfy Hendrick’s requirement.

      By simply referring to Burns’s “violation behavior,” the court did nothing

more than repeat the fact that Burns had violated the terms of his probation. The

statement did not explain why his behavior separated Burns from the typical

probation violator. It did not explain why this particular departure was warranted,

or why this is an “exceptional case[]” warranting a departure. Babcock, 469 Mich

at 258. And it said nothing about why this case should “keenly or irresistibly”

seize our attention. Id. Without such detail, the stated reason for departure is

insufficient. Id.; Hendrick, 472 Mich at 563. And Burns must be remanded to the

trial court for resentencing. MCL 769.34(11).

      The majority turns to the sentencing transcript to bolster the trial court’s

stated reason for departure. This is inappropriate. A reviewing court may not

search the record to find its own substantial and compelling reason to depart.



                                        5

Instead, it must rely on the reasons stated by the trial court.        If they are

insufficient, the review must end there, and the case must be remanded for

resentencing. Babcock, 469 Mich at 273 (appendix to majority opinion).

       But even if we were to refer to the sentencing transcript, a substantial and

compelling reason justifying the departure cannot be found. The only statement in

the record that might constitute a reason for departure is the following statement

by the court:

              I seldom ever exceed guidelines, in fact I can’t recall a time
       that I have, but I’m going to in your case. The behavior that you
       exhibited here certainly is not or was not contemplated in arriving at
       your original guidelines. It was gross, it was abusive, and I believe
       there’s a compelling reason to exceed guidelines.

One could infer from this that the court intended to depart because Burns’s

behavior was “gross” and “abusive.”

       These are subjective words. Whether conduct is “gross” and “abusive” is a

determination that changes depending on who is reviewing it. It could vary

drastically according to a person’s culture, upbringing, religion, and education.

Because of its subjective nature, a finding that actions were “gross” and “abusive”

cannot be a substantial and compelling reason to depart from the sentencing

guidelines. Babcock, 469 Mich at 257-258. Burns must be resentenced. MCL

769.34(11).5



       5
       The Michigan Department of Corrections paroled Burns on November 14,
2006. But the parole does not render moot the discussion of his sentence. Burns
                                                                  (continued…)

                                         6

       Therefore, no need exists to reach the Sixth Amendment question in this

case. It is a well-accepted rule that an appellate court will not grapple with a

constitutional issue if a case can be decided on other grounds. J & J Constr Co v

Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728

(2003); Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211,

234; 507 NW2d 422 (1993). The majority disregards this rule without providing

its reason. At the very least, the majority should have addressed the Babcock issue

before undertaking the application of Blakely v Washington6 here. If it had done

so, the constitutional issue could have been avoided entirely.7




(…continued)
remains under supervision until November 14, 2007. See Offender Tracking
Information                    System,                available               at
<http://www.state.mi.us/mdoc/asp/otis2profile.asp?mdocNumber=414793>
(accessed June 28, 2007). Until that date, he faces the potential of parole
revocation and could be returned to prison for the remainder of his five-year
maximum sentence. Were the Court to order him resentenced, however, and were
the trial court to impose the intermediate sanction cell maximum sentence of 11
months in jail, Burns would be released from supervision. And he would not face
the potential of returning to prison.
       6
           542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
       7
         Because I find that no substantial and compelling reason to depart was
articulated in this case, I need not address whether the court’s departure violated
the Sixth Amendment. But I note that my analysis from McCuller, 479 Mich at
___, and my discussion of Harper here would apply equally to Burns had the trial
court found appropriate reasons to depart. Therefore, if the reasons stated to
depart had been objective and verifiable, I would have remanded the case for
resentencing because of the Blakely violation.



                                         7

                              II. PEOPLE V HARPER

                             A. PROCEDURAL FACTS

      Harper pleaded guilty of larceny in a building under MCL 750.360, which

provides:

             Any person who shall commit the crime of larceny by
      stealing in any dwelling house, house trailer, office, store, gasoline
      service station, shop, warehouse, mill, factory, hotel, school, barn,
      granary, ship, boat, vessel, church, house of worship, locker room or
      any building used by the public shall be guilty of a felony.

This is a class G offense with an absolute maximum sentence of four years in

prison. MCL 750.503; MCL 777.16r.

      Before imposing sentence, the trial court calculated a score for both the

prior record variables (PRVs) and the offense variables (OVs). It scored 50 points

for PRV 1 because of defendant’s two prior high-severity felony convictions.

MCL 777.51(1)(b). It scored 20 points for PRV 2 because of defendant’s three

prior low-severity felony convictions. MCL 777.52(1)(b). And it scored 2 points

for PRV 5 because of defendant’s prior misdemeanor conviction.                 MCL

777.55(1)(e). The court also scored 5 points for OV 16. To do so, it made a

finding of fact using a preponderance of the evidence standard. It found that the

stolen property in question “had a value of $1,000.00 or more but not more than

$20,000.00.” MCL 777.46(1)(c). Harper did not admit the value of the stolen

property.




                                        8

       MCL 777.68 sets forth the class G sentencing grid. On this grid, a PRV

level of 72 points and an OV level of 5 points converge in cell E-I. This cell

provides a minimum sentence range of zero to 17 months. MCL 777.68. Had the

trial court not scored 5 points for OV 16, Harper’s OV level would have been zero

points. This would not have changed his minimum sentence range under the

guidelines. A PRV level of 72 points and an OV level of zero points still converge

in cell E-I. MCL 777.68. Because the judicial findings necessary to score OV 16

did not change the range, they are immaterial to this case.

       In light of the fact that the top end of the guidelines range is less than 18

months, Harper’s minimum sentence range is in an intermediate sanction cell.

This means that his sentence must not exceed 12 months in jail, absent substantial

and compelling reasons to depart. MCL 769.34(4)(a). The trial court imposed a

sentence of 24 to 48 months in prison.8 It prepared a sentencing information

report departure evaluation form stating its reasons for the upward departure:




       8
         The Michigan Department of Corrections paroled Harper on February 14,
2007. The parole does not make discussion of his sentence moot. He remains
under supervision until August 14, 2008. See Offender Tracking Information
System,                               available                                  at
<http://www.state.mi.us/mdoc/asp/otis2profile.asp?mdocNumber=358848>
(accessed June 28, 2007). On resentencing, were the trial court to impose the
intermediate sanction cell maximum sentence of 12 months in jail, Harper would
be released from supervision immediately, with no potential of returning to prison.




                                         9

              Guidelines do not include at least 3 parole revocations,
       abscondings from probation, Bench warrants from various courts
       and stealing from a charity that serves freezing children[.]

  B. SUBSTANTIAL AND COMPELLING REASONS FOR THE UPWARD DEPARTURE

       In this case, the reasons stated for departure survive review under Babcock.

The parole revocations, the abscondings from probation, and the bench warrants

could be objectively verified using court files and the records of the Department of

Corrections. These facts were of “considerable worth” in determining Harper’s

sentence because they demonstrated a pattern of failing to meet legally imposed

expectations and minimum societal behavioral requirements.         Therefore, they

provided substantial and compelling reasons to exceed an intermediate sanction at

sentencing. Babcock, 469 Mich at 257-258.

       The final stated reason, “stealing from a charity that serves freezing

children,” was also substantial and compelling. It is undisputed that Harper stole

from the Old Newsboys, a charity associated with Goodfellows.            While the

“freezing children” comment could be viewed as hyperbole, it is undisputed that

the charity is dedicated to helping needy families and children.        One of its

missions is to provide winter coats. Because of this, I would find that the final

reason for departure was objective and verifiable. The fact that Harper stole from

a charity was of considerable importance at sentencing, given that it distinguished

him from the typical defendant. Because of this, it also satisfied the requirements

of Babcock. Id.




                                        10

       The trial court complied with the sentencing guidelines requirements and

stated substantial and compelling reasons to depart from an intermediate sanction.

The discussion now must turn to the constitutionality of doing so.

                           C. BLAKELY’S BRIGHT-LINE RULE

       As I explain in McCuller,9 the United States Supreme Court has articulated

a bright-line rule for Sixth Amendment analysis:

              Except for 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.”
       [Cunningham v California, 549 US __; 127 S Ct 856, 868; 166 L Ed
       2d 856 (2007), quoting Apprendi v New Jersey, 530 US 466, 490;
       120 S Ct 2348; 147 L Ed 2d 435 (2000).]

The “statutory maximum” sentence is not always the absolute maximum sentence

set by statute.

               The dispositive question, we said, “is one not of form, but of
       effect.” If a State makes an increase in a defendant’s authorized
       punishment contingent on the finding of a fact, that fact—no matter
       how the State labels it—must be found by a jury beyond a
       reasonable doubt. A defendant may not be “expose[d] . . . to a
       penalty exceeding the maximum he would receive if punished
       according to the facts reflected in the jury verdict alone.” [Ring v
       Arizona, 536 US 584, 602; 122 S Ct 2428; 153 L Ed 2d 556 (2002),
       quoting Apprendi, 530 US at 483, 494 (citations omitted; emphasis
       in Apprendi).]

       Therefore, the statutory maximum sentence for Sixth Amendment purposes

is the maximum sentence permissible based on the jury’s verdict, the defendant’s




       9
           479 Mich at ___ (Kelly, J., dissenting).



                                           11

prior criminal record, and any admissions that the defendant made. It is irrelevant

that the trial court could have found additional facts that could have increased the

sentence. Blakely v Washington, 542 US 296, 303-304; 124 S Ct 2531; 159 L Ed

2d 403 (2004). This rule is necessary to properly protect the people’s control of

the judiciary, as intended by the Framers of the United States Constitution. Id. at

313.

       When a defendant is entitled to a sentence that is within the range specified

in an intermediate sanction cell, MCL 769.34(4)(a) sets his or her maximum

sentence. That maximum sentence is a jail term of either the upper limit of the

recommended minimum sentence range or 12 months, whichever is shorter.

Under the guidelines statutes, the court may not exceed this maximum sentence,

unless it can state substantial and compelling reasons to do so. MCL 769.34(4)(a).

Therefore, unlike a typical sentencing in Michigan, the process no longer is

concerned with the defendant’s minimum sentence. Under the Supreme Court’s

bright-line rule, this alteration in focus changes what has become known as the

defendant’s “statutory maximum.”

       The new maximum sentence established under MCL 769.34(4)(a) is the

defendant’s “statutory maximum.” This is true because it is the longest sentence

that the court can give a defendant solely on the basis of the defendant’s criminal

record and admissions and the jury’s verdict. Cunningham, 127 S Ct at 868;

United States v Booker, 543 US 220, 244; 125 S Ct 738; 160 L Ed 2d 621 (2005);



                                        12

Blakely, 542 US at 301; Apprendi, 530 US at 490; Jones, 526 US at 251-252. The

effect of making findings of fact that move the sentence to a higher statutory

maximum is that the defendant faces either (1) a different criminal charge or (2)

the increased stigma of an extended sentence.          This is specifically what the

Supreme Court sought to avoid. Apprendi, 530 US at 484. Any judicial fact­

finding that lifts the defendant’s sentence above the statutory maximum is

unconstitutional and violates Jones and its progeny.

        D. WHY HARPER’S SENTENCE VIOLATES THE SIXTH AMENDMENT

      As I explain in McCuller,10 scoring the OVs can violate Blakely’s bright­

line rule. The violation in Harper is particularly clear. Harper’s case closely

mirrors the situation in Cunningham. California’s determinate sentencing law

(DSL) created a three-tiered sentencing system for most crimes. The statute

defining Cunningham’s offense provided a lower, a middle, and an upper

sentence. The California Penal Code mandated that the trial court impose the

middle term, unless circumstances existed that mitigated or aggravated the

offense. Cunningham, 127 S Ct at 861-863. The Supreme Court paid special

attention to the fact that a defendant in California was entitled to the middle

sentence unless the sentencing court made additional findings of fact:

            California’s DSL, we note in this context, resembles pre-
      Booker federal sentencing in the same ways Washington’s
      sentencing system did: The key California Penal Code provision

      10
           479 Mich at ___ (Kelly, J., dissenting).



                                          13

       states that the sentencing court “shall order imposition of the middle
       term” absent “circumstances in aggravation or mitigation of the
       crime,” [Cal Penal Code] 1170(b) (emphasis added), and any move
       to the upper or lower term must be justified by “a concise statement
       of the ultimate facts” on which the departure rests, [Cal Ct R]
       4.420(e) (emphasis added). [Cunningham, 127 S Ct at 866 n 10
       (emphasis in original).]

       MCL 769.34(4)(a) contains similar mandatory language: “[T]he 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.” (Emphasis added.) Therefore, just like a defendant in

California, a defendant in Michigan is entitled to an intermediate sanction cell

sentence. And the court is authorized to depart from the sentence only through

judicial fact-finding after the jury verdict. As in California, these findings of fact

need be based only on a preponderance of the evidence.

       Hence, as in the California scheme, a sentence resulting from an

intermediate sanction cell in Michigan constitutes a “statutory maximum” for

purposes of Apprendi. Cunningham, 127 S Ct at 868. There is no meaningful

difference between a Michigan court departing from an intermediate sanction cell

and a California court imposing the upper term available under that state’s penal

code. It follows that reversal is mandated in this case.

       The majority effectively attempts to rewrite MCL 769.34(4)(a) to make it

provide for no more than a minimum sentence. As I explain in McCuller, the

attempt falls short of its goal. The language of the statute is not ambiguous. “An




                                         14

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.”

MCL 769.34(4)(a) (emphasis added). The statute mandates that the sentencing

court impose an intermediate sanction when a defendant falls into an appropriate

cell, unless the court makes judicial findings of fact to support a departure. MCL

769.34(4)(a). It also defines the upper limit of an intermediate sanction cell

sentence: 12 months in jail. Because this is the highest sentence a defendant may

face, it is, in every sense, a maximum sentence. Absent judicial fact-finding, the

trial court has no power to impose even a 13-month sentence. At most, Harper

should have faced 12 months in jail. MCL 769.34(4)(a).11

      The majority tries to change this fact by turning to MCL 769.8(1). MCL

769.8(1) states that there are cases in which the sentencing court will not fix the

minimum sentence and in which the absolute maximum sentence will not apply. It

notes that other provisions in that chapter of the Code of Criminal Procedure state

the exceptions to the general rule. MCL 769.34 is in the same chapter. And MCL

769.34(4)(a) provides that the sentencing court sets the maximum sentence.

Therefore, these statutes, read together, show that intermediate sanction cells do


      11
         The majority claims that a Michigan defendant is liable to serve the
absolute maximum sentence in every case. See ante at 14 n 25. MCL
769.34(4)(a) shows the fallacy of this point. Some Michigan defendants face no
higher maximum than 12 months in jail, even though a second, higher statutory
maximum sentence exists for their crime. This undeniable fact destroys the
majority’s premise that Michigan has only one maximum sentence for each crime.



                                        15

not merely set minimum sentences. The Legislature intended that intermediate

sanction cells set maximum sentences. MCL 769.34(4)(a); MCL 769.8(1). This

Court has no right to change this fact.

       Hence, there are two possible maximum sentences for the offense in

question, the absolute statutory maximum and the intermediate sanction cell

statutory maximum. A defendant is entitled to whichever one is supported by his

or her conviction, admissions, and criminal record. “[A]nd by reason of the Sixth

Amendment [any additional] facts bearing upon that entitlement must be found by

a jury.” Blakely, 542 US at 309. Therefore, if other facts are used to move the

defendant to the higher of the two maximum sentences, they must be proved to the

jury beyond a reasonable doubt.

 E. MICHIGAN’S MIXED DETERMINATE—INDETERMINATE SENTENCING SCHEME

       The majority attempts to justify its conclusion in this case by claiming that

Michigan has a traditional indeterminate sentencing scheme. See id. at 308-309.

The United States Supreme Court has noted that such schemes do not violate the

Sixth Amendment.        But because intermediate sanction cells set maximum

sentences, Michigan’s sentencing scheme is distinct from the traditional

indeterminate scheme. For Sixth Amendment purposes, it is properly viewed as a

mixed determinate/indeterminate sentencing scheme.           This is because, as

discussed in Blakely, a traditional indeterminate scheme can have only one

maximum sentence. Id. at 308-309. The fact that Michigan’s scheme is different



                                          16

in this way mandates that it be treated differently. Again, this makes Michigan’s

system strikingly similar to California’s system, which the Supreme Court found

unconstitutional in Cunningham.

       As I discuss in McCuller, the majority also attempts to distinguish the

Michigan system from a wholly determinate scheme by noting that one possible

intermediate sanction is probation. MCL 769.31(b). To support its argument, the

majority relies on the federal probation system. But Michigan’s probation system

differs greatly from the federal system. Whereas the federal system imposes a

new sentence after a probation violation, the Michigan system merely directs

resentencing using the original sentencing guidelines. See United States v Goffi,

446 F3d 319, 322 (CA 2, 2006), and Hendrick, 472 Mich at 560. Because the

same guidelines apply before and after a probation violation in this state, Blakely

continues to apply after a probation revocation. This completely undermines the

majority’s argument that intermediate sanction cells set only minimum sanctions.12

       The Court of Appeals for the Second Circuit explained why Blakely does

not apply to sentencing after a federal probation violation:

             The statutory scheme thus requires a sentencing court to
       consider a variety of factors, including the non-binding policy
       statements applicable to probation violations, in determining an

       12
         Further undermining the majority’s theory is the fact that intermediate
sanction cell sentences are treated as maximum sentences in Michigan. When a
defendant receives only an intermediate sanction jail sentence, he or she faces that
sentence and nothing more. The defendant is not reevaluated after completing the
sentence to see if prison time is required. Rather, the defendant is set free.



                                         17

       appropriate sentence. Nowhere, however, does it require a court to
       sentence within the Guidelines range for the underlying conviction
       in determining punishment for separate and distinct malfeasance by
       the defendant—violation of probation. . . . United States v. Pena,
       125 F.3d 285, 287 (5th Cir.1997). (“Because there are no guidelines
       for sentencing on revocation of probation, and because the district
       court was not limited to the sentencing range available at the time of
       the initial sentence, we find no error in the trial court’s failure to
       employ the analysis normally required in departure case[s].”) . . . .
       [Goffi, 446 F3d at 322-323 (emphasis added).]

      The exact opposite is true in Michigan. The guidelines continue to apply to

a Michigan defendant. Hendrick, 472 Mich at 560. The sentencing court is

limited to the sentence range available at the time of the initial sentence. And the

probation violation is not treated as a separate malfeasance in Michigan. People v

Kaczmarek, 464 Mich 478, 483-484; 628 NW2d 484 (2001).

      These fundamental differences between the Michigan system and the

federal system mandate different results when Blakely’s bright-line rule is applied.

Because none of the factors relied on by the federal courts exists in Michigan,

Blakely continues to apply after probation revocation in Michigan.              This

completely undermines the majority’s argument that, because of the possibility of

probation as an intermediate sanction, intermediate sanction cells produce a

minimum sentence rather than a maximum sentence.13



       13
         The majority simply disregards the reasoning of Goffi and Pena. And in
doing so, it disregards the distinctions between the two systems. In fact, the two
systems differ greatly. In the federal system, a court no longer sentences under the
guidelines, probation is viewed as a distinct malfeasance, and the former statutory
maximum no longer applies. Goffi, 446 F3d at 322-323; Pena, 125 F3d at 287. In
                                                                      (continued…)

                                        18

       The majority further argues that intermediate sanctions must be minimum

sentences because a defendant subject to them can be given a sentence of

probation with jail. It argues that recognizing that intermediate sanction cell

sentences are statutory maximum sentences will limit the effectiveness of

imposing such sentences. Although it is true that MCL 769.31(b)(iv) allows for

intermediate sanction cell sentences that include both probation and jail, the

majority’s reliance on this point is irrelevant.

       The Legislature has determined that a sentence of 12 months in jail is an

appropriate statutory maximum sentence for defendants who merit an intermediate

sanction.14 Our constitution vests the Legislature with the ultimate authority to set

criminal penalties. Const 1963, art 4, § 45; People v Hegwood, 465 Mich 432,

436; 636 NW2d 127 (2001). The Legislature inserted the 12-month limit on jail

sentences in MCL 769.34(4)(a).         Only the Legislature, not this Court, may

increase this limit. Someone who believes that the 12-month cap is insufficient

can petition the Legislature to amend the statute. But the Court cannot ignore the




(…continued)
Michigan, probation is not a separate offense, the guidelines still apply, and the
defendant remains subject to the statutory maximum sentence created by MCL
769.34(4)(a). Therefore, unlike the federal system, the Michigan system is still
subject to the Blakely bright-line rule after a defendant violates probation.
       14
        “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.” MCL 769.34(4)(a).



                                          19

statutory maximum sentence and a defendant’s Sixth Amendment rights because it

finds the statutory penalty insufficient.

       For example, those who believe that 12 months is insufficient incarceration

to punish probation violators could petition the Legislature to change Michigan’s

probation system to mimic the federal system. The Legislature could follow the

lead of Goffi and treat a probation violation as a separate malfeasance. It could

make probation violation subject, not to the guidelines for the underlying offense,

but to independent punishment. See Goffi, 446 F3d at 322-323; Pena, 125 F3d at

287.   If the Legislature effected such a change, it could eliminate the Sixth

Amendment violation now lurking in the Michigan system.             But, again, this

decision must be left to the Legislature.

       Ultimately, and most importantly, the majority cannot disregard the Sixth

Amendment simply because it is convenient for purposes of the status quo or

because it comports with legislative intent. Blakely specifically rejected any such

approach:

               Ultimately, our decision cannot turn on whether or to what
       degree trial by jury impairs the efficiency or fairness of criminal
       justice. One can certainly argue that both these values would be
       better served by leaving justice entirely in the hands of
       professionals; many nations of the world, particularly those
       following civil-law traditions, take just that course. There is not one
       shred of doubt, however, about the Framers’ paradigm for criminal
       justice: not the civil-law ideal of administrative perfection, but the
       common-law ideal of limited state power accomplished by strict
       division of authority between judge and jury. As Apprendi held,
       every defendant has the right to insist that the prosecutor prove to a



                                            20

       jury all facts legally essential to the punishment. [Blakely, 542 US at
       313 (emphasis in original).]

       It might be easier to continue the current modus operandi:         to punish

probation violators by allowing judges to increase their statutory maximum

sentence by using findings of fact not supported by the violators’ prior record or

admissions or the jury’s verdict. But the Sixth Amendment does not allow courts

to disregard defendants’ rights just because to make a correction would require the

judicial system to undergo change. Id.

       The majority is also incorrect in relying on its belief that the Legislature

intended that probation violators be punished with more than 12 months in jail.

Even if the Legislature intended that punishment, it is irrelevant. This fact is made

obvious by the decision in Ring. The Arizona legislature intended that a sentence

of death should be imposed in first-degree murder cases in which aggravating

factors existed. Ring, 536 US at 592-593. But the Supreme Court found that this

intent could not be effectuated in light of the Sixth Amendment. Notwithstanding

the Arizona legislature’s intent, the judicial fact-finding that increased Ring’s

maximum sentence to the death penalty violated Blakely’s bright-line rule: “If a

State makes an increase in a defendant’s authorized punishment contingent on the

finding of a fact, that fact—no matter how the State labels it—must be found by a

jury beyond a reasonable doubt.” Id. at 602.

       Moreover, the proper application of the Sixth Amendment to Michigan’s

intermediate sanction cells need not weaken an intermediate sanction cell sentence


                                         21

of probation with jail. The system easily could be made to comply with Blakely.

For example, this Court could amend our court rules to provide for a jury to be

impaneled after a court found a probation violation. If the jury then found beyond

a reasonable doubt the facts necessary to move the defendant from an intermediate

sanction cell, there would be no Sixth Amendment violation. Therefore, Michigan

could both retain its current probation system and protect a defendant’s

constitutional rights.15

       The majority contends that the imposition of an intermediate sanction cell

sentence does not affect the absolute maximum statutory sentence. It reasons that

a defendant is not entitled to an intermediate sanction cell sentence until after the

court decides that substantial and compelling reasons to depart from it do not

exist. Therefore, it reasons, there is only one statutory maximum sentence. But

the Supreme Court heard and rejected a similar argument in Ring. There the

pertinent statute directed the judge to conduct a separate sentencing hearing. The

purpose of the hearing was to enable the judge to determine the existence of

specified circumstances in order to decide which to impose, the death penalty or

life imprisonment. Ring, 536 US at 592-593. But the Supreme Court concluded

that the fact that the judge could impose a higher sentence under the sentencing

scheme is not relevant. A defendant is entitled to a sentence based solely on the


       15
           For a complete discussion of the appropriate remedy for the
constitutional violation occurring in these cases, please see my dissenting opinion
                                                                      (continued…)


                                         22

jury’s verdict and the defendant’s admissions and criminal history. The Supreme

Court explained:

              In an effort to reconcile its capital sentencing system with the
      Sixth Amendment as interpreted by Apprendi, Arizona first restates
      the Apprendi majority’s portrayal of Arizona’s system: Ring was
      convicted of first-degree murder, for which Arizona law specifies
      “death or life imprisonment” as the only sentencing options, see
      Ariz. Rev. Stat. Ann. § 13-1105(C) (West 2001); Ring was therefore
      sentenced within the range of punishment authorized by the jury
      verdict. See Brief for Respondent 9-19. This argument overlooks
      Apprendi’s instruction that “the relevant inquiry is one not of form,
      but of effect.” 530 U.S., at 494. In effect, “the required finding [of
      an aggravated circumstance] expose[d] [Ring] to a greater
      punishment than that authorized by the jury’s guilty verdict.” Ibid.;
      see 200 Ariz., at 279, 25 P. 3d, at 1151. The Arizona first-degree
      murder statute “authorizes a maximum penalty of death only in a
      formal sense,” Apprendi, 530 U.S., at 541 (O’Connor, J.,
      dissenting), for it explicitly cross-references the statutory provision
      requiring the finding of an aggravating circumstance before
      imposition of the death penalty. See [Ariz Rev Stat Ann] 13-1105(C)
      (“First degree murder is a class 1 felony and is punishable by death
      or life imprisonment as provided by [Ariz Rev Stat Ann] 13-703.”
      (emphasis added)). If Arizona prevailed on its opening argument,
      Apprendi would be reduced to a “meaningless and formalistic” rule
      of statutory drafting. [Id. at 603-604.]

      The Supreme Court made clear that the majority’s argument in this case

must fail. The Arizona court in Ring was imposing a statutory maximum sentence

by sentencing the defendant to a life sentence rather than the death penalty.

Similarly, a Michigan court imposes a statutory maximum sentence when

sentencing a defendant to an intermediate sanction cell sentence rather than to the



(…continued) 

in People v McCuller, 475 Mich 176, 208-213; 715 NW2d 798 (2006). 




                                        23

absolute maximum sentence. Both systems set statutory maximum sentences.

And, in both situations, judicial fact-finding by the sentencing court increasing this

sentence violates the Sixth Amendment, no matter what formalistic gloss is placed

on the fact-finding.16

       In summary, Michigan’s intermediate sanction cells set maximum

sentences. They can be increased only through judicial fact-finding after the

jury’s verdict. Because of this fact, intermediate sanction cell sentences equate to

the middle term of California’s DSL system. Cunningham, 127 S Ct at 868. Both

constitute a statutory maximum sentence for Apprendi purposes.

       In this case, but for the trial court’s findings of fact made using a

preponderance of the evidence standard, Harper would have received an

intermediate sanction. The highest valid sentence he would have faced was 12

months in jail. MCL 769.34(4)(a). The sentence he received was four years in


       16
          The majority attempts to distinguish Ring by focusing on the fact that the
sentence of death in that case could be imposed only if the judge found
aggravating circumstances. Ante at 14 n 25. It concludes that this distinguishes
Arizona’s sentencing scheme from Michigan’s sentencing guidelines because, it
postulates, only one maximum sentence exists in Michigan. As I explain both
here and in McCuller, this is simply inaccurate. Just as in Ring, a defendant in
Michigan who falls in an intermediate sanction cell faces one maximum sentence
(12 months in jail) unless the court makes findings of fact that move him or her
out of that cell. Whether these findings are called an identification of aggravating
circumstances, a scoring of OVs, or a departure from the guidelines, one fact
remains the same: the trial court is engaging in activity that increases the
defendant’s sentence by making findings not supported by the jury’s verdict, the
defendant’s admissions, or the defendant’s past convictions. This violates
Blakely’s bright-line rule.



                                         24

prison.      This violated the Sixth Amendment, and the violation requires

resentencing.

                                E. HARMLESS ERROR

          The Supreme Court concluded that Blakely errors are not structural errors

requiring automatic reversal. Washington v Recuenco, __ US __; 126 S Ct 2546,

2553; 165 L Ed 2d 466 (2006). The Court reasoned that sentencing factors were

equivalent to the elements of the crime. Both must be proved to a jury beyond a

reasonable doubt.      Id. at 2552.   The appropriate standard of review for this

constitutional issue is whether the omission of an element of the offense was

harmless beyond a reasonable doubt.       Neder v United States, 527 US 1, 18-19;

119 S Ct 1827; 144 L Ed 2d 35 (1999).

          Michigan has no process for criminal juries to make special findings of

fact. See MCR 6.420. This procedural problem is no small issue. In Recuenco,

the United States Supreme Court considered the consequences of there being no

procedure by which a jury could have made a finding.           It suggested that a

defendant would be more likely to demonstrate successfully that the Blakely

violation was not harmless in such a situation. Recuenco, 126 S Ct at 2550. This

case evidences the procedural problem noted in Recuenco.

          The jury convicted Recuenco of second-degree assault on the basis of its

finding that he had assaulted his wife with a deadly weapon. Id. at 2549. He

objected to the judicial finding that was made after the verdict that the deadly



                                         25

weapon was a firearm. Id. Thus, in Recuenco, state law specifically allowed

juries to make findings of fact. And the fact used by the judge in sentencing

closely related to the fact found by the jury.

       In this case, no procedure was available for the jury to make special

findings. The United States Supreme Court has not addressed the application of a

harmless error analysis to Blakely questions in such situations. But the procedural

discussion in Recuenco suggests that the prosecution could not carry its burden in

this case to prove the Blakely error harmless beyond a reasonable doubt. See id. at

2550.17 At the very least, it is not clear that the jury’s verdict would have been the

same as the trial court’s findings. Therefore, the error was not harmless. Neder,

527 US at 18-19.18


       17
          The majority apparently misses the point of why the Supreme Court
indicated that the lack of procedure would increase the difficulty in proving the
error harmless. Simply, if the jury has no means of making the finding, how can a
reviewing court presume that the jury would have made that finding regardless of
the prohibition against it?
       18
          The majority accuses me of effectively concluding that all Blakely errors
are “harmful per se.” Ante at 44 n 70. This is inaccurate. I acknowledge that the
Blakely error in Recuenco was not harmful per se. But when I apply the words of
the United States Supreme Court, it is not clear to me that Blakely errors in
Michigan may be harmless beyond a reasonable doubt. This is because, as the
Supreme Court advises, the lack of a procedure for special findings will increase
the difficulty of the prosecution’s burden to prove any error harmless beyond a
reasonable doubt. And Michigan lacks a procedure.

       As I discuss at length in McCuller, 479 Mich at ___ (Kelly, J., dissenting),
the majority also misstates the law regarding the ability of a jury to make special
findings in a criminal proceeding. This Court specifically rejected such
procedures long ago in People v Marion, 29 Mich 31, 40-41 (1874). And the
                                                                      (continued…)

                                          26

       Even if procedures for special jury findings existed here, the prosecution

could not prove that the failure to submit these issues to the jury was harmless

beyond a reasonable doubt.

               Of course, safeguarding the jury guarantee will often require
       that a reviewing court conduct a thorough examination of the record.
       If, at the end of that examination, the court cannot conclude beyond
       a reasonable doubt that the jury verdict would have been the same
       absent the error—for example, where the defendant contested the
       omitted element and raised evidence sufficient to support a contrary
       finding—it should not find the error harmless. [Id. at 19.]

In this case, Harper had no opportunity to present contrary evidence. The majority

relies on the fact that he did not object to the presentence investigation report

(PSIR). But this reliance is misplaced.

       “[T]he prosecution’s burden to prove every element of the crime is not

relieved by a defendant’s tactical decision not to contest an essential element of

the offense.” Estelle v McGuire, 502 US 62, 69; 112 S Ct 475; 116 L Ed 2d 385

(1991). The right to trial by jury is a basic right that cannot be waived, unless the

waiver is fully informed and publicly acknowledged. Taylor v Illinois, 484 US

400, 418 n 24; 108 S Ct 646; 98 L Ed 2d 798 (1988). Harper decided not to object

at sentencing to the information in his PSIR. When he did that, he could not have

known that he was entitled to have the prosecution prove the statements contained


(…continued) 

court rules do not permit our breaking with this longstanding precedent in this 

case. 





                                          27

in the PSIR beyond a reasonable doubt. Had he known that, and had he known

that this Court would treat his failure to object as a waiver, he likely would have

put the prosecution to its proofs. And it is not certain that the prosecution could

have proved the information in the PSIR beyond a reasonable doubt.

      In any event, the information in the PSIR does not support the judicial

findings in this case beyond a reasonable doubt. The trial court’s reasons for

departure were:

             Guidelines do not include at least 3 parole revocations,
      abscondings from probation, Bench warrants from various courts
      and stealing from a charity that serves freezing children[.]

      The PSIR only briefly mentions a bench warrant in the investigating

agent’s evaluation. Nothing in the PSIR talks of freezing children. In fact, the

prosecution has presented no evidence to this Court to support either finding on

these matters beyond a reasonable doubt. It is unknown if children were harmed

by Harper’s actions. And it is unclear what defenses Harper may have had against

the unknown bench warrants. Therefore, the prosecution has not proved beyond a

reasonable doubt that the error in this case was harmless. Neder, 527 US at 19.

Resentencing is mandated.19



      19
         I disagree with Justice Cavanagh’s assessment that Harper’s guilty plea
and his statement that he did not contest the PSIR constituted an admission for
Sixth Amendment analysis purposes. A waiver “consists of (1) specific
knowledge of the constitutional right and (2) an intentional decision to abandon
the protection of the constitutional right.” People v Williams, 475 Mich 245, 261;
716 NW2d 208 (2006). Courts should endulge every reasonable presumption
                                                                     (continued…)

                                        28

                                III. CONCLUSION


      There was no need for the majority to reach the Sixth Amendment issue in

Burns. The trial court failed to articulate substantial and compelling reasons to

depart upward from the sentencing guidelines range. Burns must be resentenced

without regard to the Blakely issue. Because he was not properly sentenced under

existing law, the Sixth Amendment issue is not ripe for review.

      Harper’s sentence does violate the Sixth Amendment. The trial court based

its departure sentence on facts that a jury never decided were true and that Harper

never admitted.     But for those findings, Harper would have received an

intermediate sanction cell sentence, which could not have exceeded 12 months in

jail. MCL 769.34(4)(a). But his sentence was four years in prison. This violated

the Sixth Amendment, and it requires resentencing.




(…continued) 

against waiver of a fundamental right. Id. at 260. This Court has set an even 

higher standard for an admission: 

              [A] statement made by a party or his counsel, in the course of
      trial, is considered a binding judicial admission if it is a distinct,
      formal, solemn admission made for the express purpose of, inter
      alia, dispensing with the formal proof of some fact at trial. [Ortega
      v Lenderink, 382 Mich 218, 222-223; 169 NW2d 470 (1969).]

        This case meets neither standard. Harper did not know that he was
addressing his Sixth Amendment rights when he reviewed the PSIR at sentencing.
And his plea did not address the facts used to depart from the sentence required by
the intermediate sanction cell. Thus, his statements could not constitute a waiver,
let alone an admission.



                                        29

       The Harper case illustrates that a grave constitutional problem arises in this

state when Blakely is correctly applied.       In its effort to save the Michigan

sentencing guidelines, the majority fails to pay respect to the United States

Supreme Court’s Sixth Amendment precedent. When this precedent is properly

applied, it becomes apparent that a major restructuring of Michigan’s sentencing

guidelines is in order.

                                                 Marilyn Kelly




                                         30

