If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 25, 2022

v No. 357903

Tuscola Circuit Court

KYLE RICHARD BEAUCHEMIN, LC No. 20-015256-FH

Defendant-Appellant.

Before: JANSEN, P.J., and O’BRIEN and HOOD, JJ.

HOOD, J. (concurring)

I respectfully concur in the result only. I would reverse on the basis that defendant Kyle 

Richard Beauchemin’s objection to a probationary sentence and demand for a jail term barred the 

trial court from sentencing him to a term of probation. People v Bensch, 328 Mich App 1, 7-12; 

935 NW2d 382 (2019). The majority opinion would fault the sentencing court for failing to rely 

on anticipated “good time” credit to conclude that Beauchemin reached his statutory maximum 

jail term. Such sentencing considerations, however, are impermissible. See People v Fleming, 

428 Mich 408, 424-427; 410 NW2d 266 (1987) (holding that “enhancing a defendant’s sentence 

on the basis of anticipated good-time reductions is . . . improper.”). The trial court correctly

concluded that Beauchemin had not reached his statutory maximum, which was 20 days beyond 

the sentence it imposed. 

I. BACKGROUND

The majority opinion accurately describes the factual and procedural background. 

Critically, at Beauchemin’s original sentencing hearing, he objected to probation and demanded 

that the trial court sentence him to a term of incarceration. Over his objection, the trial court 

sentenced Beauchemin to two years’ probation and 345 days’ incarceration, with credit for 339 

days served for the larceny conviction, and 93 days’ incarceration, with credit for time served, for 

the domestic violence and assault and battery convictions, before resentencing Beauchemin to two 

years’ probation with no jail time.

II. LAW AND ANALYSIS
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The trial court did not err in concluding that Beauchemin had not yet served the statutory 

maximum jail sentence for his larceny conviction. Although Beauchemin may have ultimately 

received a reduction for good behavior, see MCL 51.282, it would have been improper for the trial 

court to consider such possible reductions as a sentencing factor, Fleming, 428 Mich at 424-427. 

The trial court, however, erred in both the original sentence and amended sentence by sentencing 

Beauchemin to a term of probation when he objected to probation and demanded a jail term. 

Bensch, 328 Mich App at 7-13.

“We review de novo constitutional challenges to sentencing decisions.” People v Posey, 

334 Mich App 338, 355; 964 NW2d 862 (2020). A “trial court’s decision about the sentence 

imposed is reviewed for an abuse of discretion.” People v Rydzewski, 331 Mich App 126, 132; 

951 NW2d 356 (2020) (quotation marks and citations omitted). We review questions of law, such 

as issues of statutory construction, de novo. Bensch, 328 Mich App at 4 n 2.

A. IMPERMISSIBLE SENTENCING CONSIDERATIONS

At the threshold, I disagree with the majority’s conclusion that the trial court erred by 

imposing a sentence of probation when, based on anticipated good time credits, Beauchemin would 

have already served the statutory maximum term of incarceration. This conclusion not only

depends on this Court and the sentencing court accepting an estimate of Beauchemin’s good time 

credits, but it also requires the trial court to rely on an impermissible sentencing factor. See

Fleming, 428 Mich at 424-427 (holding that the possibility of early release by virtue of good time 

credits may not be used to enhance a defendant’s sentence).

The majority relies on People v Bisogni, 132 Mich App 244, 246-247; 347 NW2d 739 

(1984),

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for the principle that a sentencing court may not sentence a defendant to probation when 

he has already served the statutory maximum jail term associated with his charge. In Bisogni, the 

defendant was convicted of conspiracy to commit larceny under $100, MCL 750.157a, and 

sentenced to two years’ probation, with the first year in jail. Id. at 245. This Court partially vacated 

the defendant’s sentence because once he served the one year of jail time imposed by the court—

the statutory maximum jail term—he could not then be required to serve any additional probation. 

Id. at 246. As the majority correctly notes, the rationale was that even if the defendant violated 

 

1 As a decision issued on or before November 1, 1990, Bisogni is not binding on this Court, MCR 

7.215(J)(1); People v Mathews, 324 Mich App 416, 428 n 4; 922 NW2d 371 (2018), and I am not 

convinced that it was correctly decided. Panels of this Court have applied Bisogni to reach 

different conclusions in factually similar cases. See, e.g., People v Jan, unpublished per curiam 

opinion of the Court of Appeals, issued January 13, 1998 (Docket No. 196492) (holding that 

sentence of two years’ probation with 90 days in jail was void ab initio, where the statutory 

maximum jail term was 90 days); People v Trice, unpublished per curiam opinion of the Court of 

Appeals, issued September 23, 2004 (Docket No. 247537) (holding that sentence of two years’ 

probation for a defendant convicted of a 90-day misdemeanor was valid, where defendant spent 

over 200 days in jail awaiting trial but jail was not a condition of his term of probation). Because 

Bisogni is not binding and the decisions applying it have reached various outcomes, I decline to 

rely on it as persuasive authority.
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his term of probation, the court could not impose additional punishment for the violation because 

such additional punishment would exceed the statute. Id. at 246-247, citing People v Sturdivant, 

412 Mich 92; 312 NW2d 622 (1981). This Court in Bisogni vacated the defendant’s sentence to 

the extent it would impose a period of probation after the defendant completed serving the one 

year of imprisonment. Bisogni, 132 Mich App at 247.

Beauchemin is differently situated than the defendant in Bisogni because, unlike that 

defendant, the jail term in Beauchemin’s original sentence was not the statutory maximum. The 

sentencing court sentenced Beauchemin to two years’ probation with 345 days in jail as a 

condition. His jail term was 20 days short of the statutory maximum. In Bisogni, the trial court 

had no authority to sanction the defendant for probation violations that occurred after his one-year 

jail term. Bisogni, 132 Mich App at 246-247. Here, Beauchemin would still be subject to up to

20 days in jail for a potential future probation violation. Therefore, his sentence could not be void 

until his total jail time reached 365 days. For this reason, Bisogni is distinguishable.

The majority appears to resolve this difference by relying on Beauchemin’s anticipated 

good-time credit. Acknowledging that good-time credit for jail sentences is a determination left 

to the sheriff or jailor, see MCL 51.282, I also acknowledge that Beauchemin could effectively 

“bank” good-time credit that he had accumulated awaiting sentence,see People v Resler, 210 Mich 

App 24; 532 NW2d 907 (1995); see also People v Tyrpin, 268 Mich App 368; 710 NW2d 260 

(2005). The sentencing court would have to apply this banked good-time credit toward sanctions 

for future misconduct. Resler, 210 Mich App at 27-28 (concluding that a defendant is entitled to 

good-time credit when his or her probation is revoked). This means that Beauchemin’s sentence 

of two years’ probation with 345 days in jail, though not immediately void under the principles in 

Bisogni, would become void as soon as Beauchemin violated probation and his banked good-time 

credit applied. In short, unlike the defendant in Bisogni, Beauchemin’s sentence was not void on 

the day of sentencing, but it would become void once the court had to apply banked good-time 

credit toward a future probation violation. The majority opinion appears to expand Bisogni’s 

application to include this situation.

The problem is that the majority opinion requires the sentencing court to consider 

anticipated good-time credit in fashioning its sentence, which is illegal. See Fleming, 428 Mich 

at 424-427. The sentencing court could not have considered anticipated credit for good behavior 

in fashioning its sentence even if at a defendant’s request. See id. It is unlawful for a sentencing 

court to rely on the possibility of good-time credits, early release, or disciplinary credits as an 

aggravating sentencing factor. See id.; see also People v Lundy, 145 Mich App 847; 378 NW2d 

622 (1985) (holding that a sentencing judge may not consider the possibility of a prisoner’s early 

release under the Prison Overcrowding Emergency Powers Act, 1980 PA 519; MCL 800.71, as a 

factor enhancing a sentence); People v Humble, 146 Mich App 198; 379 NW2d 422 (1985) (same). 

Here, Beauchemin had spent 339 days in custody at the time of his sentencing, 26 days short of 

the statutory maximum jail term for larceny. Because he had not yet served the statutory 

maximum, the original sentence was not invalid.

Acknowledging that Beauchemin requested—and apparently preferred—a jail sentence, a 

jail sentence is still harsher than probation. See Bensch, 328 Mich App at 7 (noting that probation 

is a matter of grace). The court cannot rely on anticipated credit for good behavior to impose a 
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harsher sentence. To reach this conclusion, the trial court would have had to consider an 

impermissible sentencing consideration, which it correctly refused to do. This was not an error.

Because of the differences between Beauchemin’s case and Bisogni, in order to fit 

Beauchemin into the Bisogni framework, the sentencing court would have to have considered 

anticipated good-time credit, which is unlawful. See Fleming, 428 Mich at 424-427. This creates 

a Catch-22, where the sentencing court would have to choose between committing one of two 

errors. The sentencing court could follow Fleming and not consider how good-time credit would 

impact his sentence. This would likely eventually result in a sentence that is void under the Bisogni 

principles once Beauchemin’s banked good-time credit kicked in. Or the sentencing court could 

consider anticipated good-time credit in contravention of Fleming and long-established precedent 

to avoid this result. In my view, it is unnecessary for us to resolve this potential paradox because 

Beauchemin’s original and amended sentence were both unlawful under Bensch, 328 Mich App at 

10-13.

B. DECLINING A PROBATIONARY SENTENCE

The trial court erred by imposing a probationary sentence because such a sentence was 

barred once Beauchemin objected to probation and requested incarceration. See Bensch, 328 Mich 

App at 13; MCL 771.4(1). MCL 771.4(1) states: “It is the intent of the legislature that the granting 

of probation is a matter of grace requiring the agreement of the probationer to its granting and 

continuance.” In People v Peterson, 62 Mich App 258, 264-265; 233 NW2d 250 (1975), this 

Court examined an earlier version of MCL 771.4 to analyze whether a probationer may reject 

certain conditions of probation. After considering that statute, and the fact that “a probationer is 

no less deprived of all constitutional guarantees than the one incarcerated pursuant to sentence[,]” 

id. at 266, the Peterson Court determined that “[p]robation is a matter of grace and rejectable, we 

think, at the option of the probationer,” id. at 265.

In applying the 2019 version of MCL 771.4(1), which merely stated “the granting of 

probation is a matter of grace conferring no vested right to its continuance[,]” this Court in Bensch

relied on Peterson to conclude that a defendant may reject probation. Bensch, 328 Mich App at 7. 

When asked to abandon the rule iterated in Peterson regarding a defendant’s ability to reject 

probation, this Court noted that “the rule that defendants may reject probation has been accepted 

and relied on in subsequent cases in which a defendant agreed to probation but objected to a 

particular condition.” Id. Accordingly, this Court “decline[d] to simply abandon that rule without 

a compelling reason to do so.” Id. at 9. This Court reaffirmed Peterson, and expressly stated that

“a defendant may decline a sentence of probation and instead seek a sentence of incarceration.” 

Id. at 13.

This Court’s determination in Bensch is consistent with People v Oswald, 208 Mich App 

444, 445-446; 528 NW2d 782 (1995), where this Court analyzed whether a fine imposed as a 

condition of probation was limited to the maximum fine authorized under the statute of which the 

defendant was convicted. The Oswald Court determined that the trial court was not limited to the 

maximum fine authorized by the applicable statute, and further determined “had [the] defendant 

found the term of probation to be overly onerous, he could have declined the grant of probation, . . . 

and submitted himself for sentencing directly under the . . . statute . . . .” Id. at 446.
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The prosecution argues that this Court should overrule Peterson and Bensch, but Peterson

is not binding on this Court, and this Court cannot overrule Bensch. Under MCR 7.215(J)(1), “A 

panel of the Court of Appeals must follow the rule of law established by a prior published decision 

of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or 

modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this 

rule.” Bensch was issued in 2019, our Supreme Court has not overruled Bensch, and there are no 

conflicts in this Court regarding that decision. Accordingly, this Court is bound by Bensch. MCR 

7.215(J)(1).

The prosecution also appears to argue that trial court could simply ignore Bensch if there 

were a “compelling reason to do so.” I disagree. The prosecution’s argument relies on one 

sentence that appears to be misread or taken out of context. The Court in Bensch explained its 

reasoning for adopting a longstanding rule of law that was not binding on the Court, stating:

Unpublished decisions of this Court have also relied on the fact that a 

defendant agrees to probation in resolving challenges to orders of probation. These 

decisions are not binding precedent, MCR 7.215(C)(1), but it is clear that the rule 

that a defendant can elect to reject probation has been used by this Court (and 

others) to dispose of arguments made by defendants challenging the terms of their 

probation. Under these circumstances, we decline to simply abandon that rule 

without a compelling reason to do so. [Bensch, 328 Mich App at 9 (citations 

omitted; emphasis added).]

Later, the Court stated that the prosecution’s arguments were “not compelling reasons to depart 

from the longstanding interpretation of MCL 771.1 . . . .” Id. at 13. In these statements, the Court 

was explaining the reasoning for affirming a rule of law in a published decision. It was not stating 

that trial courts could ignore this rule if there was a “compelling reason.” See id. at 9, 13. The 

sentencing court in this case could not just ignore Bensch.

Under MCL 771.4(1), which expressly requires a defendant to agree to a grant of probation,

Bensch, and Oswald, Beauchemin was permitted to reject probation and request incarceration. In 

a motion for personal bond or for immediate sentencing, which Beauchemin filed after the 

conclusion of his jury trial, Beauchemin explicitly requested that the trial court impose a sentence 

of incarceration. Although in his sentencing memorandum, which was filed after the motion for 

immediate sentencing, Beauchemin requested probation, he objected to probation at sentencing, 

in his motion for resentencing, and at the hearing on that motion. Because he objected to probation 

and requested incarceration, the trial court erred in imposing a term of probation on Beauchemin. 

Bensch, 328 Mich App at 13.

III. CONCLUSION

With respect, I agree with the result reached in the majority opinion that Beauchemin’s 

sentence should be vacated and the court should sentence him to a term of incarceration, but on 

the basis that his objection to a probationary sentence and demand for a jail term barred the trial

court from sentencing him to a term of probation.

/s/ Noah P. Hood