This past year, the Michigan Supreme Court devoted time to extending or elaborating on previous sentencing decisions. The Parks rule now applies to 19- and 20-year-olds, and the Parks rule is retroactive. In addition, consecutive sentencing is punishment, and it may not be applied retroactively. Moreover, a trial judge violates People v Beck, 504 Mich 605; 939 NW2d 213 (2019), when it relies on acquitted conduct despite a disclaimer that it will sentence for the offense found by the jury. Finally, when scoring 25 points under Offense Variable 19 there must be conduct that, rather than hypothetically, threatens the security of a penal institution.

Full opinions

Parks warrants relief for 19- and 20-year-olds: In a decision addressing two different cases, the Supreme Court extended the Parks rule to 19- and 20-year-old offenders. “[A]s a class, 19- and 20-year-old late adolescents are more similar to juveniles in neurological terms than they are to older adults.” The Court also noted that society does not recognize those under the age of 21 as adults (by law) for many activities and purposes. The Court concluded that when applying a traditional analysis for cruel or unusual punishment, a rule of mandatory life without parole for those under the age of 21 is unusually excessive and constitutionally disproportionate. That said, the Court did not overrule the case of People v Hall, 396 Mich 650 (1976), which held that mandatory life without parole for first-degree murder is not cruel or unusual punishment, at least as applied to those 21 or older. In a concurring opinion, Justice Bernstein explained that he would have drawn the line of constitutional validity at the age of 25. In a dissent, Justice Clement, joined by Justice Zahara, disagreed with extending Parks to 19- and 20-year-olds. People v Taylor and Czarnecki, ___ Mich ___ (Docket Nos. 166428 and 166654, 4/11/25).

Parks is fully retroactive: The decision in People v Parks, 510 Mich 225 (2022), precluding a mandatory life without parole sentence for those who were 18 at the time of the crime, applies retroactively to cases on collateral review. To the extent that the Michigan Supreme Court’s earlier decision in People v Carp, 496 Mich 440 (2014), survived the United States Supreme Court’s decision in Montgomery v Louisiana, 577 US 190 (2016), Carp is overruled. People v Poole, ___ Mich ___ (Docket No. 166813, 4/1/25).

Orders granting sentencing relief

Consecutive sentencing is punishment that may not apply retroactively: Where a defendant’s crimes occurred before the effective date of the law permitting discretionary consecutive sentencing for CSC first degree and “any other criminal offense arising out of the same transaction,” MCL 750.520b(3) (effective 8/28/06), and because consecutive sentencing is a criminal punishment , application of the consecutive sentencing provision of MCL 750.520b(3) to defendant would constitute an ex post facto law. (By contrast, last year the Supreme Court held that restitution is not punishment. People v Neilly, 513 Mich 401 (2024).) Defendant is entitled to amendment of the judgment of sentence to reflect concurrent rather than consecutive sentences. People v Wimberly, ___ Mich ___; 12 NW3d 383 (Docket No. 165229, 10/25/24).

Improper punishment for standing trial and refusing to admit guilt: The Court remanded for resentencing where the trial judge (a Kalamazoo County Circuit Court judge sitting by assignment in Berrien County) based the sentence in part on defendant’s decision to continue trial and refusal to admit guilt, errors conceded by the prosecutor. People v Gonzalez, ___ Mich ___; 10 NW3d 668 (Docket No. 166833, 9/13/24).

Reliance on acquitted conduct despite trial judge’s disclaimer: Where defendant was acquitted of possession with intent to distribute but convicted of simple possession in Ottawa County, and the trial judge concluded there was intent to distribute and sentenced at the top of the guidelines based on “all the circumstances” and the “details of what occurred here,” the Supreme Court found error under Beck and remanded for resentencing. Resentencing was necessary despite the trial judge’s statement that she would impose sentence for simple possession because the totality of the circumstances indicated reliance on the intent element as part of the sentence. People v Wells, ___ Mich ___; 22 NW3d 549 (Docket No. 167208, 7/9/25).

Reaffirming that the basis of an assessment of court costs must be articulated on the record, the Court remanded to the trial court (Kent County) for articulation of the basis for an assessment of $1,000. People v Kilchermann, ___ Mich ___; 10 NW3d 863 (Docket No. 166771, 9/20/24).

Inaccurate information about guidelines range: Where the trial judge twice stated an incorrect sentencing guidelines range at sentencing and failed to acknowledge that it was departing from the guidelines range, it relied on inaccurate information and must resentence defendant. People v McNew, ___ Mich ___; 15 NW3d 596 (Docket No. 167613, 1/24/25).

OV 11: In a short order remanding to the trial court for resentencing, the Supreme Court found error in scoring 25 points under OV 11 “where there is no record evidence of a penetration that arose out of the particular sentencing offense.” People v Grandstaff, ___ Mich ___; 18 NW3d 17 (Docket No. 167348, 3/26/25).

OV 14: The prosecutor conceded error in the scoring of this variable based on People v Dickinson, 321 Mich App 1 (2017), and the Supreme Court remanded for resentencing. Dickinson was a case where the defendant was said to have exercised “independent leadership” in procuring and delivery drugs to a prisoner. In the instant case, online records indicate the defendant was a prisoner who was convicted of prisoner in possession of contraband. People v James Robert Cowdrey, ___ Mich ___; 19 NW3d 383 (2025).

OV 19: According to the Supreme Court, in order to score this variable a trial judge must find that defendant engaged in some conduct and the conduct threatened the security of a penal institution. The jail booking area is part of a penal institution. Context matters when scoring this variable so that it does not become “boundless” in application, as the Court previously said in People v Dixon, 509 Mich. 170; 983 NW2d 385 (2022). Some possession of drugs at intake will threaten the security of the institution and some may not. There must be some “daylight” between smuggling drugs into a jail or prison and the mere possession of a small amount of drugs by a handcuffed defendant in the jail booking area. On remand, the trial judge must make specific findings of fact as to how defendant’s conduct actually threatened the security of the jail. In a dissenting opinion, Justice Bernstein, joined by Justice Zahra, would find the possession of methamphetamine in the jail intake area to be sufficient to score OV 19. People v Morris, ___ Mich ___; 22 NW3d 527 (Docket No. 166566, 7/9/25).

Leave denied after oral argument

PRV 5: After hearing oral argument addressing whether to consider non-scoreable misdemeanors as part of the ten-year gap, the Michigan Supreme Court denied leave to appeal. People v Boven, lv denied after oral argument ___ Mich ___ (Docket No. 165805, 4/11/25). That leaves in place an earlier published decision in People v Butler, 315 Mich App 546; 892 NW2d 6 (2016), that non-scoreable misdemeanors do count for purposes of the ten-year gap rule. In a concurring opinion in the order denying leave in Boven, Justice Welch did not disagree with the earlier Butler decision but noted a trial court’s authority to depart downward from the guidelines range if the range overstates the prior criminal record.

Further briefing ordered after oral argument

Two cases pending before the Court involve various challenges to lifetime electronic monitoring. After hearing oral argument, the Court has asked for additional briefing on the length of parole the defendants must serve – including whether it is lifetime parole – and whether the term of parole has any impact on the constitutionality of the sentence of lifetime electronic monitoring. People v Martin, ___ Mich _ (Docket No. 166339, 7/31/25); People v Kardasz, ___ Mich ___ (Docket No. 165008, 7/31/25)

Remand to Court of Appeals for reconsideration

Concerned about a potential error in the scoring of Offense Variable 19 based on the 2023 case of People v Deweerd, 511 Mich 979 (2023) (error to score for defendant’s general denials of meth activity to the police), the Supreme Court vacated part of an unpublished Court of Appeals opinion and remanded for reconsideration in light of Deweerd. According to the unpublished Court of Appeals opinion, defendant, who was convicted of shooting W, called 911 and then walked away from the home after telling police, who asked whether he saw anything, that there was a scuffle inside the house and someone was shot.

People v Pernell, unpublished opinion of the Court of Appeals issued December 6, 2024 (Docket No. 365363), vacated in part and remanded for reconsideration ___ Mich ___ (Docket No. 168097, 5/30/25).

Michigan Sentencing PLLC

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