The Michigan Court of Appeals disagreed. It interpreted Lockridge as having rewritten MCL 769.34(2) and (3) based on a finding that Michigan’s mandatory sentencing guidelines violated a defendant’s Sixth Amendment fundamental right to a jury trial. The Rice Court noted that Lockridge did not limit its holding to cases requiring judicial fact-finding.

The Court held that, based on decisions of the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S. Ct. 2151 (2013), it violates the Sixth Amendment right to a jury trial to base a minimum sentence guidelines calculation on facts not admitted by a defendant or found by a jury beyond a reasonable doubt. The court held that, for the application of the Michigan Sentencing Guidelines to be constitutional, (1) MCL 769.34(2) must be severed to the extent that it imposes a mandatory minimum sentence based on facts not admitted by the defendant or found by a jury; (2) the requirement under MCL 769.34(3) that sentencing judges articulate substantial and compelling reasons for departing from the guidelines range must be struck down; (3) the sentencing guidelines must be advisory only. The court held that trial courts, however, must still calculate and consider the guidelines range for each defendant as part of its sentencing decision.

As the Court of Appeals found sufficient evidence of Defendant’s guilt without regard to the perjured testimony, it affirmed the trial court’s denial of his motion for a new trial. The Court also quickly struck down the statutory requirement within MCL 769.34 that a trial court articulate substantial and compelling reasons to depart from an intermediate sanction. After the Michigan Supreme Court’s decision in Lockridge, a trail court no longer needs to provide such justification to depart from the applicable guideline range and an intermediate sanction is no longer mandatory.

Defendant’s guidelines for an armed robbery sentence were calculated with concurrent convictions for felonious assault under PRV 7. The court of appeals vacated the felonious assault convictions, but refused to remand for resentencing under MCL 769.34(10) because the sentence remained within the appropriate guidelines range and defendant had not raised the issue below or in a “proper motion to remand.” After hearing oral argument on whether to grant leave, the supreme court held that remand for resentencing was warranted here.

The court granted leave in November, 2006 in two cases to assessBlakelyin the intermediate sanction cell context and to determine whether a defendant can waive the issue by not objecting to the facts at issue (those facts that should be proved to a jury to justify departure perBlakely) when they appear in the presentence report.People v Harper,477 Mich 933 (2006)(nov'06)andPeople v Burns,477 Mich 933 (2006)(nov'06).See below.InPeople v Uphaus,275 Mich App158 (2007)(april'07),the Michigan Court of Appeals issued a published decision jumping the gun on the supreme court's leave grants inHarper andBurns, and holding thatApprendiandBlakelydo apply in Michigan to prohibit judicial fact finding to be used to justify an upward departure from the intermediate sanction cell limitations imposed by MCL 769.34(4)(a). The case was later held in abeyance by the supreme court (No. 133928, June 22, 2007, 733 NW2d 21) and then reversed, consistent with the decision inPeople v Harper,479 Mich 599 (2007).People v Uphaus,480 Mich 939,November 21, 2007, No. 133928.

The Michigan supreme court found the trial court's departure based on the defendant's "failure to step up to the plate...and admit....guilt" was improper.The exercise of the right to trial cannot be punished at sentencing. See alsoPeople v Conley,270 Mich App 301 (2006)(march'06), holding that consideration by the court of defendant's refusal to admit guilt isconstitutional error, and requires resentencing even in the absence of a guidelines scoring problem (despite MCL 769.34(10) which directs the court to affirm a sentence within the appropriate guidelines sentence range unless there is a scoring error or inaccurate information is relied upon).But seePeople v Dobek,274 Mich App 58 (2007)(jan'07),where the court, without acknowledgingConley,upheld a sentence within guidelines (judicial guidelines as the offense allegedly occurred in 1995), despite the trial court's harassment of defendant with the fact that he failed to provide the complainant closure by admitting to the offense after a jury convicted him.But see the MSC order inPeople v Hatchett,478 Mich 874 (2007)(march'07).

The court of appeals reversed and remanded for resentencing, noting that the guidelines scored out to an intermediate sanction cell (5-17 months) and it was thus improper to sentence Defendant to a prison term of 12-30 months without departing from the guidelines, something the trial court could not do without offering Defendant an opportunity to withdraw his plea. The supreme court unanimously agreed, and interpreted the intermediate sanction sentencing statute, MCL 769.34(4)(a).The court ruled that absent a departure supported by substantial and compelling reasons, a trial court may not impose an indeterminate prison sentence on a defendant for whom the sentencing guidelines require an intermediate sanction because an "intermediate sanction does not include a prison sentence."

Although there is no provision in the felony firearm statute covering imposition of costs, the legislature has expressly provided for imposition of costs in all cases after a finding of guilt in MCL 769.1k, effective January 1, 2006. MCL 769.34(6), addressing the duties of the court at sentencing, also provides a general authority for imposition of costs.