Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 int ermediate-sanction sentencing statute, MCL 769.34(4)(a), and decide wh ether 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 ofAppeals 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 se ntencing guidelines require an intermediate sanction because an “intermediate sanction do es 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 People v Muttscheler (On Reconsideration) , unpublished opinion per curiam of the Court of Appeals, issued March 25, 2008 (Docket No. 275411), p 2.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 pr ison, guards found a crude weapon in his cell during a routine search. D efendant pleaded guil ty of attempted possession of a weapon by a prisoner, in exchange for the prosecution’s dismissal of an habitual-offender notice and th e 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. Speci fically, 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 du ring 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...) 2but the trial court denied his motion. On leave granted, the Court of Appeals reversed in a split decision. The Court held that de fendant 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 resent encing within the guidelines, in accordance with the pl ea agreement. If the trial cour t could not agree to that, the Court held, defendant must be al lowed 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 reco mmended minimum sentence range for a defendant determined un der the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless th e court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the dep artment of corrections. An intermediate sanction may include a jail term t hat does not exceed the upper limit of the recommended minimum se ntence range or 12 months, whichever is less . [Emphasis added.] Furthermore, MCL 769.31(b) defines “i ntermediate sanction” as “probation or any sanction, other than imprisonment in a state prison or state reformatory, that may lawfully be imposed.” The stat ute 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.

3869 (2002). Stauffer implies that when the guide lines 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 dep arture 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 identifie s substantial and compelling reasons for the departure. Id

. The Court of Appeals correc tly stated that the trial court erred by relying on People v Weatherford , 193 Mich App 115; 4 83 NW2d 924 (1992). Weatherford, predating the enactment of the legislativ e sentencing guidelin es, was decided in the “era” of the judicial sentencing gu idelines, 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 coul d not be required to adhere to them. Id. Courts could sentence outside the guideli nes simply by articulating a reason why such a sentence shou ld be imposed. Id. ; Michigan Sentencing Guidelines (2d ed, 1988), p 7. Thus, what the Court of Ap peals 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 boun d by any plea agreement to sentence within the guidelines, as the trial court was in the present case. B ecause the parties here agreed to a sentence within the guidelines, the tria l court violated the agreement

4not only by sentencing defenda nt to prison, but also by imposing an indeterminate sentence, under which defen dant could be im prisoned for longer than the 12

- month maximum allowed by the in termediate-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 guid elines. As the Court noted, defendant does not assert his innocence; the heart of his argument is that the prosecuti on did not fulfill its end of the bargain. Muttscheler, supra at 2. 2 Accordingly, en forcement 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 simplifie d somewhat by the fact that defendant’s new sentence must be served consecutiv ely to the existing sentence. If the sentences could have been served concurrently , defendant might have chosen to agree to a departure in order to serv e his new term in prison while he simultaneously served his existing prison term. Agreeing to su ch a departure from an intermediate sanction wo uld waive an appellate cha llenge, unless the length of the sentence also exceed ed 12 months, as it did in this case. People v Wiley , 472 Mich 153, 154; 693 NW2d 800 (2005).

5