Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 18, 2008 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 136101 

THEODORE MUTTSCHELER,

 Defendant-Appellee. 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellee, 

v No. 136199 

THEODORE MUTTSCHELER,

 Defendant-Appellant. 

BEFORE THE ENTIRE BENCH 

MEMORANDUM OPINION. 

In this case, we are called on to interpret the intermediate-sanction 

sentencing statute, MCL 769.34(4)(a), and decide whether a defendant whose 

recommended minimum sentence range requires the imposition of an intermediate 

sanction may be sentenced to serve time in prison, rather than jail. The Court of 
 

Appeals held that, absent a departure supported by substantial and compelling 

reasons, a trial court may not impose an indeterminate prison sentence on a 

defendant for whom the sentencing guidelines require an intermediate sanction 

because an “intermediate sanction does not include a prison sentence.” People v 

Muttscheler (On Reconsideration), unpublished opinion per curiam of the Court of 

Appeals, issued March 25, 2008 (Docket No. 275411), p 2. In lieu of granting 

either the prosecution’s or defendant’s application for leave to appeal, we affirm 

that judgment. 

While defendant was incarcerated in prison, guards found a crude weapon 

in his cell during a routine search. Defendant pleaded guilty of attempted 

possession of a weapon by a prisoner, in exchange for the prosecution’s dismissal 

of an habitual-offender notice and the imposition of a sentence within the 

applicable sentencing guidelines range. Under the guidelines, defendant’s 

recommended minimum sentence range was 5 to 17 months. The trial court 

sentenced him to 12 to 30 months in prison, to be served consecutively to the 

sentences he was already serving.1

 Defendant then moved to withdraw his plea, 

1

 Because defendant was incarcerated when he committed the offense, 

MCL 768.7a(1) requires a consecutive sentence. Specifically, the relevant part of 

the statute provides: 

A person who is incarcerated in a penal or reformatory 

institution in this state, or who escapes from such an institution, and 

who commits a crime during that incarceration or escape which is 

punishable by imprisonment in a penal or reformatory institution in 

this state shall, upon conviction of that crime, be sentenced as 

provided by law. The term of imprisonment imposed for the crime 

(continued...) 

2
 
 

but the trial court denied his motion. On leave granted, the Court of Appeals 

reversed in a split decision. The Court held that defendant was entitled to an 

intermediate sanction, which would at most be a jail term of no more than 12 

months. Id. It remanded the case for resentencing within the guidelines, in 

accordance with the plea agreement. If the trial court could not agree to that, the 

Court held, defendant must be allowed to withdraw his plea. Id. 

As noted, under the sentencing guidelines, defendant’s recommended 

minimum sentence range was 5 to 17 months. MCL 769.34(4)(a) 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. [Emphasis added.] 

Furthermore, 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.” The statute identifies a variety of possible 

intermediate sanctions, such as community service, probation, a jail sentence, a 

fine, house arrest, etc., but it unequivocally states that a prison sentence is not an 

intermediate sanction. See also People v Stauffer, 465 Mich 633, 635; 640 NW2d 

(...continued) 

shall begin to run at the expiration of the term or terms of 

imprisonment which the person is serving or has become liable to 

serve in a penal or reformatory institution in this state. 

3
 
869 (2002). Stauffer implies that when the guidelines require an intermediate 

sanction, even if the length of the sentence does not exceed the statute’s 12-month 

maximum, the sentence is an upward departure if the defendant is required to 

serve it in prison, rather than in jail. Id. at 636. Accordingly, the trial court cannot 

impose a prison sentence unless it identifies substantial and compelling reasons for 

the departure. Id. 

The Court of Appeals correctly stated that the trial court erred by relying on 

People v Weatherford, 193 Mich App 115; 483 NW2d 924 (1992). Weatherford, 

predating the enactment of the legislative sentencing guidelines, was decided in 

the “era” of the judicial sentencing guidelines, 1983 through 1998. See People v 

Hegwood, 465 Mich 432, 438; 636 NW2d 127 (2001). Because the minimum 

sentence ranges recommended by the judicial guidelines were not the product of 

legislative action, sentencing courts could not be required to adhere to them. Id. 

Courts could sentence outside the guidelines simply by articulating a reason why 

such a sentence should be imposed. Id.; Michigan Sentencing Guidelines (2d ed, 

1988), p 7. Thus, what the Court of Appeals determined to be a sufficient reason 

for the departure in Weatherford is inapplicable to a sentence imposed under the 

legislative sentencing guidelines. 

More importantly, the sentence in Weatherford was imposed after a jury 

trial. The trial court there was not bound by any plea agreement to sentence within 

the guidelines, as the trial court was in the present case. Because the parties here 

agreed to a sentence within the guidelines, the trial court violated the agreement 

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not only by sentencing defendant to prison, but also by imposing an indeterminate 

sentence, under which defendant could be imprisoned for longer than the 12-

month maximum allowed by the intermediate-sanction statute. 

Finally, we conclude the Court of Appeals did not err when it held that 

defendant will be allowed to withdraw his plea only if the trial court cannot agree 

to a sentence within the guidelines. As the Court noted, defendant does not assert 

his innocence; the heart of his argument is that the prosecution did not fulfill its 

end of the bargain. Muttscheler, supra at 2.2

 Accordingly, enforcement of that 

bargain is the proper remedy. 

Affirmed. 

Clifford W. Taylor 

Michael F. Cavanagh 

 Elizabeth A. Weaver 

 Marilyn Kelly 

 Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

2

 We note that this issue is simplified somewhat by the fact that defendant’s 

new sentence must be served consecutively to the existing sentence. If the 

sentences could have been served concurrently, defendant might have chosen to 

agree to a departure in order to serve his new term in prison while he 

simultaneously served his existing prison term. Agreeing to such a departure from 

an intermediate sanction would waive an appellate challenge, unless the length of 

the sentence also exceeded 12 months, as it did in this case. People v Wiley, 472 

Mich 153, 154; 693 NW2d 800 (2005). 

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