Last fall, in People v Carey, Justice Noah Hood wrote a concurring statement in an order denying leave to appeal, and two other justices joined that statement (Justices Bolden and Thomas).¹ In the concurrence, Justice Hood explained that the Court’s earlier decision in People v Kaczmarek² might preclude a defendant from challenging the scoring of the sentencing guidelines following revocation of probation if the guidelines had not been challenged at the time of the original sentencing.

The statement gave me pause, but on reflection there is a straightforward response that should be made to counter this argument.

In his reasoning, Justice Hood provided a specific citation to the Kaczmarek opinion and reasoned that the Court would need to decide at some point “whether Kaczmarek extends so far as to prohibit a challenge to or correction of the guidelines scores when a trial judge revokes probation and imposes a custodial sentence.”³

In Kaczmarek, the Supreme Court relied on its earlier decision in People v Pickett,⁴ where the latter Court warned of limits on the appeal following a probation revocation:

We caution that defendant's appeal of right is limited in scope. It encompasses only those issues that he could not have raised in an appeal from his 1995 marijuana conviction. See Pickett, supra at 316 318,  215 N.W.2d 695. [Kaczmarek, 464 Mich at 485.]

The above language has clearly caused some confusion, but a review of Pickett and also decisions addressing the scope of a resentencing provides sound support for a different understanding when it comes to probation violation sentences. 

In Pickett, the Court addressed the availability of an appeal following revocation of probation and the parameters of that appeal. The Court concluded there should be two appeals when there is a revocation of probation, “the appeal in each case being limited to the matters surrounding the immediate violation involved, i.e., after original conviction to those matters relating to the original crime, after probation violation to those matters relating to the probation violation.”⁵ The Court voiced concerns that a defendant should not be permitted to re-litigate trial issues in a probation revocation appeal: “We have given defendant the opportunity to raise any questions concerning his trial on his first appeal as of right. To allow him to raise trial-related matters on this second appeal would, in effect, be granting two rights of appeal to the same final determination . . . .”⁶ The Court noted the obvious “administration of justice problem if there is an appeal as of right after determination of a probation violation, if that means that the defendant may rake up alleged errors going back to the original conviction and beyond that to arrest . . . the problems of finding witnesses . . . [lack of] memory . . . records . . . are very real and significant.”⁷ 

Although some may have assumed the Pickett rule applies to sentencing challenges, this is very likely not the case. A probation violation sentencing is a resentencing: “[R]evocation of probation simply clears the way for a resentencing on the original offense.”⁸ As the Michigan Supreme Court explained when addressing the scope of resentencing, the parties may object to any part of the new sentence: “Once the Court of Appeals vacated the defendant’s original sentence and remanded for resentencing, the case was before the trial court in a presentence posture, allowing for objection to any part of the new sentence.”⁹ The Court of Appeals and Sixth Circuit have also recognized that “every aspect of the sentence is before the judge de novo,” unless the appellate court limits the scope of resentencing.¹⁰

² People v Kaczmarek, 464 Mich 478, 482 (2002).

³ Carey, 25 NW3d at 682-683.

⁴ People v Pickett, 391 Mich 305 (1974).

⁵ Id. at 308.

⁶ Id. at 317.

⁷ Id. at 307-308.

⁸ Kaczmarek, 464 Mich at 483.

⁹ People v Rosenberg, 477 Mich 1076 (2007), citing People v Ezell, 446 Mich 869 (1994).

¹⁰ People v Williams (After Second Remand), 208 Mich App 60, 65 (1994). See also United States v Miclaus, 177 F4th 740 (CA 6, 2026) (Sixth Circuit joins majority of circuits in concluding that a resentencing opens all aspects of the sentence, including issues arguably waived at the original sentencing, unless the appellate court has limited the scope of resentencing).

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. 

Due to the volume of inquiries, Anne is not able to respond to non-attorney requests for assistance or analysis of individual fact situations.

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