Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

November 20, 2009

137666

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 137666 COA: 276816 Muskegon CC: 06-053122-FC EARNEST LAMONT WARREN, Defendant-Appellant.

________________ _______________ __________/

On November 4, 2009, the Court heard or al argument on the application for leave to appeal the September 18, 2008 judgment of the Court of Appeals. On order of the Court, the application is again consider ed, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( dissenting ).

The issue here is whether the trial co urt is obligated under the sentencing guidelines to score all felonies or only the highest class felony. Because I believe the trial court is obligated by the plain language of the guidelines to score all felonies, I would reverse the Court of Appeals in part a nd remand to the trial court for resentencing.

MCL 777.21(2) states, “If the defendan t was convicted of multiple offenses, subject to section 14 of chapter XI, score each offense as provided in this part.” Section 14 of chapter XI (MCL 771.14[2][e]) requi res the probation officer to score only the highest class felony when concurrent sentences are imposed. The pr osecutor argues that when concurrent sentences are imposed, the tria l 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 fe lony, the court must score the gu idelines for all felonies.

While there is room for legitimate puz zlement with regard to why different obligations would obtain for the trial c ourt and the probation officer, MCL 777.21(2) nonetheless is explicit that the trial court must score all felonies. This interpretation isI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk November 20, 2009

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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 senten ce range . . . [only] if the court has a substantial and compelling reason for that depa rture and states on the record the reasons for departure.” 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 wh y a thoroughly comprehensive scheme of sentencing guidelines would ar bitrarily except from its coverage certain felonies. That

the probation officer may have a more limited scorin g obligation where concurrent sentences are imposed does little, in my judgm ent, to overcome the explicit statutory

directive that the trial court must “score each offense.”

As a result of the majority position, a tr ial court is now empowered to sentence a

defendant on the lower class felo ny to a term that may exc eed the guidelines — even the guidelines that are applicable to the highes t class felony — without having to articulate any “substantial and compelling” reason for what would otherwise be a clear upward departure. It is inconceivable to me that the drafters of the guidelines could have contemplated that their rules be so easily ci rcumvented, and for no apparent good reason. I respectfully dissent.