Michigan Supreme Court Sentencing Decisions 2022-2023 Term

From the August, 2023 Criminal Defense Newsletter
August tends to be a relatively quiet month in the criminal justice system, making it a good time to reflect on the Michigan Supreme Court’s sentencing decisions of the 2022-2023 term – a term that ended July 31, 2023. There were some interesting sentencing guidelines decisions, but overall, it wasn’t a particularly momentous year because the Supreme Court ducked several important sentencing issues. Let’s begin with what was not decided.

Not Decided

After several years of litigation spanning two separate cases and three oral arguments, the Supreme Court reached no decision on the constitutionality of the court cost statute, MCL 769.1k. Three justices believed the problems posed by the statute were more appropriately resolved and fixed by the legislature, with those three justices (Bolden, Clement, and Bernstein) also questioning whether the statute could be said to be facially unconstitutional in its application to every criminal case. One justice (Cavanagh) would have found a due process violation in addition to a separation of powers problem, and one justice (Welch) would have found a separation of powers violation. In the end, the Supreme Court denied leave to appeal.  People v Johnson, ___ Mich ___ (Docket No. 163073, 7/7/23). See also People v Cameron, 504 Mich 927 (2019).

After hearing oral argument addressing an unobjected-to use of video conferencing technology for a defendant’s appearance at a felony sentencing, the Supreme Court declined to resolve whether the error was structural or how a defendant might show prejudice on appeal. People v Enciso, ___ Mich ___ (Docket No. 162311, 5/12/23).

After oral argument on the limits and potential ambiguity of a Cobbs evaluation that promised a sentence “at the low end of the guidelines,” the Supreme Court denied leave to appeal. People v Jones, ___ Mich ___ (Docket No. 164110, 6/30/23). Note, there is a proposed court rule amendment that remains pending and is somewhat related. The amendment would alter MCR 6.302 and MCR 6.310 so that a judge offering a preliminary sentence evaluation must specify the estimated sentencing guidelines range at the time of the plea and offer plea withdrawal at sentencing if the range turns out to be different. ADM File No. 2021-05.


On the last day of its term, the Supreme Court issued a decision that struck down the first sentence of MCL 769.34(10), although four justices could not agree on why the provision was unconstitutional. Three justices (Bolden, Bernstein, and Cavanagh) concluded that the prohibition on appellate review of a within-guidelines sentence violated its earlier decision in People v Lockridge, 498 Mich 358 (2015). One justice (Welch) believed the prohibition violated the right of appellate review found in Const 1963, art 1, § 20. Because four justices agreed that the provision was unconstitutional, a within-guidelines sentence may now be reviewed for reasonableness on appeal, although there is a rebuttable presumption of reasonableness to the sentence. People v Posey, ___ Mich ___ (Docket No. 162373, 7/31/23).

The future of sentencing for aiding and abetting conduct turned decidedly more interesting following the Supreme Court’s recent decision addressing the scoring of Offense Variables 1 and 2. The multiple offender instruction does not apply to the first offender to be sentenced, even when that person is the least culpable. In other words, the first to be sentenced is not scored for the more-aggravated conduct of others with reference to OV 1, OV 2, and presumably OV 3. People v Dupree, 511 Mich 1 (3/21/23).

When evaluating the evidence of serious psychological injury of family members under Offense Variable 5, grief alone is insufficient. Likewise, failing to speak at sentencing, without more, does not suggest a serious psychological injury. People v Jaber, ___ Mich ___ (Docket No. 162970, 3/29/23).

A denial of culpability, without more, will not satisfy the test for scoring Offense Variable 19. There was some debate among the justices over whether the defendant’s conduct went beyond a denial of culpability, but a majority of the justices concluded that defendant’s statement to the police that he was not using meth, did not know there were meth components in the home, and would have left had he known was a denial of culpability that could not support an assessment of ten points under OV 19. People v Deweerd, ___ Mich ___ (Docket No. 162966, 6/9/23).

In a case that centered on plea withdrawal in the context of promises related to the sentence, the Supreme Court concluded that a plea is involuntary (but not necessarily illusory) when there is a mistake that relates to the maximum possible sentence with reference to a dismissed habitual offender notice.  There were other legitimate elements of the plea bargain for this defendant, thus defeating the illusory plea argument, but the exaggerated and inaccurate nature of the bargain with reference to dismissal of a third (but in reality, only a second) habitual offender notice rendered the plea unknowing and involuntary. People v Guyton, ___ Mich ___ (Docket No. 163700, 7/18/23).

There were a few other orders (footnote 1) and one decision affirming a grant of parole, (footnote 2) but on the whole it was not an exceptional term of the Supreme Court with reference to new sentencing decisions. That said, the guidelines cases were eye-catching, and the Court now has before it a challenge to OV 3 for prophylactic measures. Stay tuned and enjoy the end of summer.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023


1. See e.g., People v Lockmiller, ___ Mich ___ (Docket No. 164505, 12/7/22) (remand for resentencing allows defendant to challenge any part of the new sentence); People v Riley, ___ Mich ___ (Docket No. 164718, 12/2/22) (remand for correction of presentence report as to defendant’s age and date of birth); People v Taylor, ___ Mich ___ (Docket No. 164596, 10/4/22) (remand for resentencing before another judge where the trial judge once again failed to justify the 27.5-year departure).
2. In re McBrayer, ___ Mich ___ (Docket No. 164311, 7/24/23).