Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  June 15, 2012                                                                       Robert P. Young, Jr.,
                                                                                                Chief Justice

  144261                                                                              Michael F. Cavanagh
                                                                                            Marilyn Kelly
                                                                                      Stephen J. Markman
                                                                                      Diane M. Hathaway
                                                                                          Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Brian K. Zahra,
                                                                                                     Justices
            Plaintiff-Appellee,
  v                                                        SC: 144261
                                                           COA: 297455
                                                           Kent CC: 08-011230-FC
  BOBBY JAY FISK,
             Defendant-Appellant.
  _________________________________________/
        On order of the Court, the application for leave to appeal the October 27, 2011
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.
         MARILYN KELLY, J. (concurring).
         This defendant has been sentenced to four life sentences, two of which are
  nonparolable. He has not challenged any of the life sentences. Therefore, requiring
  resentencing for the felonies with the lower offense classes would be a waste of judicial
  resources. Remanding this case could have no practical effect on the sentences this
  defendant will serve.
         Our decision is not intended to apply to cases in which the failure to score lower
  offense class felonies could possibly affect the sentence a defendant will serve.
  Therefore, our refusal to remand for a useless task cannot possibly dilute the sentencing
  guidelines or threaten the integrity of the law as the dissenting justice fears.
         MARKMAN, J. (dissenting).
         Our sentencing guidelines state, “If the defendant was convicted of multiple
  offenses, subject to section 14 of chapter XI [of the Code of Criminal Procedure], score
  each offense as provided in this part.” MCL 777.21(2) (emphasis added). Section 14 of
  chapter XI requires the probation officer to score only the felony with the highest offense
  class when concurrent sentences are to be imposed. MCL 771.14(2)(e)(iii). The
  prosecutor argues that when concurrent sentences are imposed, the trial court only has to
  score the highest-class felony, while defendant argues that, even if the probation officer
  only has to score the guidelines for the highest-class felony, the court itself must score the
  guidelines for all felonies.
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       While there is room for puzzlement with regard to why different obligations would
obtain for the trial court and the probation officer, MCL 777.21(2) nonetheless is explicit
that the trial court must score “each offense.” This is underscored by other sentencing
statutes. MCL 769.34(2) states that “the minimum sentence imposed by a court of this
state for a felony . . . committed on or after January 1, 1999 shall be within the
appropriate sentence range,” and MCL 769.34(3) states, “A court may depart from the
appropriate sentence range . . . [only] if the court has a substantial and compelling reason
for that departure and states on the record the reasons for departure.” (Emphasis added.)
In order for the trial court to know whether it is sentencing within the “appropriate
sentence range,” it must obviously score an offense in the first place. Moreover, there is
no apparent reason why a comprehensive scheme of sentencing guidelines would
arbitrarily except from its coverage felonies simply on the basis that they are scored at the
same time as other criminal offenses. That the probation officer may have a more limited
scoring obligation when concurrent sentences are to be imposed does little, in my
judgment, to overcome the explicit statutory directive that the trial court must “score each
offense.” MCL 777.21(2).
       As a result of the majority’s decision not to address this issue, a trial court is now
empowered to sentence a defendant on the lower-class felony to a term that may exceed
the guidelines—indeed, that may even exceed the guidelines that are applicable to the
highest-class felony—without the obligation to articulate any substantial and compelling
reason for what would otherwise be an upward departure. Concomitantly, the trial court
would be empowered to sentence a defendant on the lower-class felony to a term that
may depart below the guidelines without the obligation to articulate a substantial and
compelling basis for doing so. It is hard to conceive that the Legislature, in framing the
guidelines, could have contemplated that those guidelines, designed to promote
reasonably equal sentences for reasonably equally situated defendants, could be so easily
circumvented and for no apparent good reason.
       I am cognizant that in most cases scoring the lower-class felony will have little
practical effect because (1) if the trial court departs upward in imposing a sentence for the
lower-class felony, this sentence will in all likelihood, as in this case, still not exceed the
sentence imposed for the highest-class felony and (2) if the trial court departs downward
in imposing a sentence for the lower-class felony, the defendant will still be required to
serve the presumably lengthier sentence imposed for the highest-class felony.
Nonetheless, the trial court should be required, as the law provides, to score all felonies
and sentence within the applicable guideline range for each, because otherwise a trial
court could, absent the articulation of substantial and compelling reasons (a) depart
upward so high in imposing a sentence for the lower-class felony that the sentence might
exceed even the guideline range of the highest-class felony or (b) depart downward in
imposing a sentence for the lower-class felony, which sentence would become the
                                                                                                                3


effective sentence of the court in the event that defendant’s convictions and sentences for
the highest-class felonies were subsequently reversed on appeal.
        I respectfully disagree with the concurring justice that addressing the sentencing
guidelines issue in this case would constitute a “waste of judicial resources” because it is
unlikely to have any “practical impact” on this defendant. Specifically, I do not believe it
is a “waste of judicial resources” for this Court to require sentencing courts to undertake
what is plainly obligated of them by the Legislature, particularly in the face of Court of
Appeals decisions apparently relieving these courts of such obligations. By denying
leave to appeal, this Court ensures that large numbers of criminal sentencings will take
place in which the requirements of the Legislature will not be complied with. And
although, as I have acknowledged, more often than not such noncompliance with the
sentencing guidelines will have no “practical impact” on a defendant’s sentence, in some
number of such cases there will be a practical impact and an appeal will not be
undertaken by the prosecutor or the defendant in reliance on what I believe are clearly
erroneous decisions of the Court of Appeals. In the end, trial courts will be allowed to
impose sentences that are above or below the guideline range absent the obligation of
having to articulate “substantial and compelling” reasons for doing so. And as a result,
the sentencing guidelines enacted by the Legislature to render criminal sentences more
uniform and less arbitrary will have been slightly diluted, and for no good reason at all.
It is no “waste of judicial resources” for this Court to undertake every reasonable effort to
maintain the integrity of the law that has become the foundation of our state’s criminal
justice system. The concurring justice also contends that “our refusal to remand for a
useless task cannot possibly dilute the sentencing guidelines or threaten the integrity of
the law . . . .” This is true, of course, only if one assumes that the trial courts of the state
do not feel bound to follow the binding decisions of the Court of Appeals.
       Because I continue to believe that the guidelines require that all felonies be scored
and that all departures be justified, I would remand to the trial court for it to score all the
offenses for which defendant was convicted and either sentence defendant within the
guideline range or else articulate substantial and compelling reasons in support of a
departure. I would also require the trial court to adjust defendant’s sentences that exceed
the statutory maximums, which would then also require the court to ensure that
defendant’s minimum sentences do not exceed 2/3 of the statutory maximum sentences,
as they currently do.




                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          June 15, 2012                       _________________________________________
        s0612                                                                 Clerk
