Unpublished Decisions That Mislead

Unpublished decisions of the Michigan Court of Appeals may at times leave something to be desired in terms of legal reasoning or the quality of research underlying a legal issue. These decisions do not serve as binding precedent, MCR 7.215(C)(1), but at their worst they can lead others astray and may operate in direct conflict with established law. The former concern has prompted me to venture down the rabbit hole more than once as I try to decipher why a particular opinion appears troublesome. That was the case recently when I read that Offense Variable 7 of the legislative sentencing guidelines could be scored for conduct that occurred before the crime was committed. My first thought was, No, that’s not right.

After checking the law set forth by the court and also reviewing related case law, I can only conclude that the panel got it wrong. Offense Variable 7 is limited to conduct that occurs during the sentencing offense. I’ll explain why in a moment, but my research serves as a good reminder that unpublished decisions are not binding for a reason, and it’s never wise to assume that the intermediate appellate court possesses superior knowledge or understanding on fine points of the law.

By way of background, there are published decisions of the Michigan Supreme Court and the Court of Appeals holding that certain offense variables must be scored using conduct that occurred during the sentencing offense. See e.g., People v McGraw, 484 Mich 120 (2009); People v Siders, 497 Mich 985 (2015); People v Chelmicki, 305 Mich App 58, 71 (2014). The McGraw decision dealt with a prohibition on consideration of post-offense conduct with reference to OV 9, but more recent decisions have applied that same rule to other variables. And in one instance, the Court of Appeals has extended that rule, without express acknowledgment, to prohibit pre-offense conduct with reference to multiple variables. See People v Biddles, 316 Mich App 148 (2016) (shooting that occurred before felon in possession offense could not be considered under OV 1, OV 3 and OV 9).
As for Offense Variable 7, a published and controlling decision of the Court of Appeals concluded that the variable is limited to conduct occurring during the sentencing offense, and this precludes consideration of conduct that occurs either before or after. “It is clear to us, however, that the analytical framework constructed by our Supreme Court in McGraw applies regardless of whether a court is addressing conduct occurring before or after the sentencing offense[.]” People v Thompson, 314 Mich App 703, 716-717 (2016).  The Thompson decision is consistent with the wording of Offense Variable 7, which refers to the way in which a victim was treated “during the offense.” MCL 777.37(1)(a)(“A victim was treated with sadism, torture, excessive brutality or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.”)

Despite the binding nature of the Thompson decision and the wording of OV 7, a new unpublished decision from January 2022 concludes that the variable may be scored for pre-offense conduct “so long as the conduct [was] temporally proximate to and related forward to the sentencing offense.” People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued January 20, 2022 (Docket No. 355812), at 3. The panel expressly relied on the earlier Thompson decision, although Thompson stood for the exact opposite position. Somewhat surprisingly, one judge sat on both panels.*

It's too late to correct the error for Mr. Johnson, but here’s some good advice when it comes to relying on unpublished decisions: These decisions are not always sound, and attorneys should exercise care.  Moreover, don’t be fooled by the lack of further appeal following an obviously incorrect decision. When a defendant wins resentencing, even if limited in ways that are demonstrably incorrect, there is powerful motivation to quit while ahead. Unfortunately, that leaves incorrect decisions that may confuse and mislead others.

by Anne Yantus
Copyright Anne Yantus 2022
Michigan Sentencing PLLC

The published Thompson decision was authored by Judge Murphy, who was joined by Judge Servitto. Judge Krause dissented. The unpublished Johnson decision was a per curiam decision with Judges Gleicher, Borrello and Krause. It would appear that the position of the panel in the unpublished Johnson decision was the position of Judge Krause in her dissent in Thompson.
While Thompson precludes the rule applied in Johnson, one might note that a different panel (Judges Letica, Gadola, and Cameron) concluded in 2020 that Offense Variable 8 (movement of victim to place of greater danger) “must be scored solely on the basis of [the offender’s] conduct before or during the sentencing offense.” People v Allen, 331 Mich App 587, 596 (2020), vacated in part on other grounds, 507 Mich 856 (2021). This treatment of Offense Variable 8 would not apply to Offense Variable 7. In addition, the conclusion reached in Allen appears to be dicta as the panel found error in the consideration of post-offense conduct and there was no argument concerning pre-offense conduct. Further, the panel relied on the case of People v Barrera, 500 Mich 14, 22 (2017), but the Barrera Court held that OV 8 includes incidental movement of the victim, such as movement to a bedroom to effectuate a sexual assault, but the Court never considered or addressed a McGraw argument. Should the Michigan Supreme Court address a McGraw argument with reference to OV 8, it might well conclude that movement of the victim is part of the sentencing offense or that the precise wording of OV 8 allows consideration of pre-offense conduct. For these reasons, Allen, the only known decision to condone consideration of pre-offense conduct in a world of McGraw challenges, appears to offer little to no guidance on this question.

  Anne Yantus is a sentence consultant, working with court-appointed and retained 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 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 no-cost consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds.