Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.,

 Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra,

 Justices

Order 

June 15, 2012

144261

PEOPLE OF THE STATE OF MICHIGAN,

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.
2

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 
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.

 _________________________________________

 Clerk

June 15, 2012

s0612

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.