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Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED NOVEMBER 4, 2003 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v No. 123658 

DAVID LEE GARZA, 

Defendant-Appellant. 

MEMORANDUM OPINION 

After assaulting a young woman in the parking lot of a 

store near Monroe, the defendant pleaded guilty of criminal 

sexual conduct in the second degree and indecent exposure. 

MCL 750.520c, 750.335a. The circuit court sentenced the 

defendant to a term of three to fifteen years in prison.1 

The three-year minimum sentence was within the thirty-sixto seventy-one-month recommendation stated in the 

1

 The defendant spent a long period in the county jail

awaiting disposition of this matter (his alternative was to

go back to an Ohio prison). Thus, for indecent exposure, 
 

sentencing guidelines. MCL 777.64.2 

The defendant applied to the Court of Appeals, which 

denied leave to appeal.3 He then filed the present 

application for leave to appeal in this Court. 

The defendant argues that the first sentence of MCL 

769.34(10) is unconstitutional. That measure requires the 

Court of Appeals to uphold a minimum sentence that falls 

within the guidelines range, provided that the guidelines 

have been properly scored and the judge has not relied on 

inaccurate information: 

If a minimum sentence is within the 

appropriate guidelines sentence range, the court 

of appeals shall affirm that sentence and shall 

not remand for resentencing absent an error in 

scoring the sentencing guidelines or inaccurate 

information relied upon in determining the 

defendant’s sentence. A party shall not raise on

appeal an issue challenging the scoring of the 

sentencing guidelines or challenging the accuracy

of information relied upon in determining a 

sentence that is within the appropriate

guidelines sentence range unless the party has

raised the issue at sentencing, in a proper

motion for resentencing, or in a proper motion to 

he was sentenced to time already served. 

2

 This case fell into cell E-III of the class C grid

set forth in MCL 777.64. 

3

 Unpublished order, entered March 27, 2003 (Docket No.

246549). 

2 
remand filed in the court of appeals. [MCL

769.34(10) (emphasis supplied).] 

The defendant asserts that this legislative directive 

violates the constitutional principle of separation of 

powers. Such a constitutional question we review de novo. 

DeRose v DeRose, 469 Mich 320, 326; 666 NW2d 636 (2003). 

In presenting this argument, the defendant relies on 

the Constitution of this state: 

The powers of government are divided into

three branches: legislative, executive and 

judicial. No person exercising powers of one

branch shall exercise powers properly belonging

to another branch except as expressly provided in

this constitution. [Const 1963, art 3, § 2.] 

He also notes that Articles I, II, and III of the United 

States Constitution separately describe the legislative, 

executive, and judicial power of the nation’s government. 

Finally, the defendant cites cases---none on point---that 

generally discuss the importance of this concept. 

The difficulty with the defendant’s position is that a 

mere statement of the principle of separation of powers 

does not provide guidance regarding which powers belong to 

which branch of government. Thus, the framers of both the 

Michigan and United States constitutions stated at length 

the responsibilities and prerogatives of each branch. 

As we explained in People v Hegwood, 465 Mich 432, 

436-437; 636 NW2d 127 (2001): 

3 
 

[T]he ultimate authority to provide for 

penalties for criminal offenses is 

constitutionally vested in the Legislature.

Const 1963, art 4, § 45. The authority to impose

sentences and to administer the sentencing

statutes enacted by the Legislature lies with the 

judiciary. See, e.g., MCL 769.1(1). [Emphasis

supplied.] 

In various eras, and with regard to various offenses, the 

Legislature has chosen to delegate various amounts of 

sentencing discretion to the judiciary. At present, for 

instance, there are offenses with regard to which the 

judiciary has no sentencing discretion,4

 offenses about 

which discretion is sharply limited,5

 and offenses regarding 

which discretion may be exercised under the terms set forth 

in the sentencing guidelines legislation.6 In previous 

years, before the 1999 effective date of the legislative 

sentencing guidelines, the Legislature provided sentencing 

discretion that in many instances was virtually without 

limit.7 

4

 E.g., MCL 750.316 (first-degree murder), MCL 750.227b

(possession of a firearm while committing a felony). 

5

 E.g., MCL 333.7401 et seq. (controlled-substance

offenses). 

6

 See, generally, MCL 769.34 and MCL 777.1 et seq. 

7 This Court's sentencing guidelines were in effect

during most of the 1980s and 1990s. Administrative Orders 

1983-3, 1984-1, 1985-2, and 1988-4; 417 Mich cxxi (1983),

418 Mich lxxx (1984), 420 Mich lxii (1985), and 430 Mich ci

(1988). Pursuant to these orders, the sentencing court was 

4 
 

 

All this is for the Legislature to decide. In MCL 

769.34, the Legislature plainly implemented a comprehensive 

sentencing reform. The evident purposes included reduction 

of sentencing disparity,8 elimination of certain 

inappropriate sentencing considerations,9 acceptance of this 

Court’s Tanner10 rule,11 encouragement of the use of 

sanctions other than incarceration in the state prison 

system,12 and resolution of a potential conflict in the 

law.13 As part of that reform, the Legislature dealt 

specifically, and in detail, with appellate review of 

sentences. MCL 769.34(7)-(12). See People v Babcock, 469 

Mich 247, 264-270, 273-274; 666 NW2d 231 (2003). 

obliged to follow the procedure of “scoring” a case on the

basis of the circumstances of the offense and the offender,

and articulate the basis for any departure from the 

recommended sentencing range the scoring produced. But 

because the recommended ranges were not the product of

legislative action, a judge was not required to impose a

sentence within that range. People v Hegwood, 465 Mich 

432, 438; 636 NW2d 127 (2001); People v Raby, 456 Mich 487,

496-7; 572 NW2d 644 (1998). 

8

 MCL 769.34(2), (3). 

9

 MCL 769.34(3). 

10 People v Tanner, 387 Mich 683, 690; 199 NW2d 202

(1972). 

11 MCL 769.34(2)(b). 

12 MCL 769.34(4). 

13 MCL 769.34(5). 

5 
 

Among the rules stated in MCL 769.34(7)-(12) is the 

one to which the defendant objects---the Court of Appeals is 

not to set aside minimum sentences that are within the 

guidelines and that are based on accurate information. We 

have not been presented with a persuasive argument that the 

constitution of this state or of this nation bars the 

Legislature from enacting such a measure; nor have we 

located such an argument on our own. Accordingly, we 

reject the defendant’s assertion that the first sentence of 

MCL 769.34(10) is unconstitutional.14 

For these reasons, we affirm the judgment of the Court 

of Appeals. MCR 7.302(G)(1). 

Maura D. Corrigan

Michael F. Cavanagh

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman 

14 The defendant also argues that the circuit court

abused its sentencing discretion in imposing this sentence.

We reject this argument as well. The fifteen-year maximum

sentence is set by law, MCL 750.520c(2) and 769.8(1), and

the three-year minimum sentence (at the low end of the

range provided in the sentencing guidelines) must be upheld

under MCL 769.34(10). 

6