Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

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 oral 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 considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 MARKMAN, J. (dissenting). 

 The issue here is whether the trial court 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 and remand to the trial court for resentencing. 

 MCL 777.21(2) states, “If the defendant 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]) requires the probation officer to score only the 

highest class felony when concurrent sentences are imposed. 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 must score the guidelines for all felonies. 

 While there is room for legitimate 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 all felonies. This interpretation is 
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

November 20, 2009 

1117 

 

2

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.” 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 thoroughly comprehensive scheme of 

sentencing guidelines would arbitrarily except from its coverage certain felonies. That 

the probation officer may have a more limited scoring obligation where concurrent 

sentences are imposed does little, in my judgment, to overcome the explicit statutory 

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

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

defendant on the lower class felony to a term that may exceed the guidelines — even the 

guidelines that are applicable to the highest 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 circumvented, and for no apparent good reason. 

I respectfully dissent.