In People v. Terrell, No. 321573, the Michigan Court of Appeals held when a trial court erroneously employs mandatory sentencing guidelines, the appellate court must follow the same procedure for resentencing as the Court of Appeals recently established in People v. Stokes. As a result, even if judicial fact-finding does not increase the minimum sentence guidelines, which was the previous requirement for applying the Stokes-remand remedy, the Court of Appeals is now required to remand the case to determine whether the error was harmless when a trial court erroneously applied compulsory sentencing guidelines.
After the Court of Appeals vacated his original sentence, the defendant, Terrell, challenged the sentence imposed on him by the trial court following a shootout with the Detroit police. On remand, the trial court calculated Terrell’s offense variable (“OV”) score for his many convictions related to the shooting. Terrell received a total OV score of 190 points, which placed him at Level VI (75+ points). Terrell claimed on appeal that his OV scoring was not supported by the jury’s verdict. The Court of Appeals concluded that the trial court’s judicial fact-finding was harmless as it did not increase Terrell’s minimum sentence guideline, which is the remand-standard employed in Stokes. (Our blog post on Stokes, can be found here.) While Terrell’s total OV was Level VI, the jury found Terrell guilty beyond a reasonable doubt of a sufficient number of felonies to independently result in a Level VI OV—regardless of whether the convictions that Terrell challenged on appeal were supported by the jury’s verdict. Consequently, any error relating to the scoring was harmless, which, under Stokes, precluded remand.
Nevertheless, the Court of Appeals still remanded the case because the trial court approached the sentencing guidelines as being mandatory—rather than ordering a mere reasonable sentence. In light of the Michigan Supreme Court’s recent decision in People v. Lockridge, which I blogged about here, Michigan sentencing guidelines are merely advisory, not mandatory. As a result, the trial court was not permitted to treat the guideline as compulsory, but was permitted to depart from the guideline ranges so long as the resulting sentence was reasonable. The Court of Appeals, therefore, remanded the case to determine whether this sentencing error was harmless. The Court also rejected Terrell’s argument that his receiving an increased sentence imposed on remand was impermissibly vindictive, noting that the trial court sufficiently explained its rational for imposing the increased sentence.
