Argued January 15, 2015
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Rahim Omarkhan Lockridge was convicted of involuntary manslaughter for the death of his wife, MCL 750.321, following a jury trial in the Oakland Circuit Court. His minimum sentence range calculated under the sentencing guidelines, MCL 777.1 et seq., was 43 to 86 months. The court, Nanci J. Grant, J., concluded that there were factors not accounted for in scoring the guidelines, including a probation violation, killing his wife in front of their three children, leaving the children at home with their mother dead on the floor, and prior domestic violence. Citing these as substantial and compelling reasons to depart from the minimum sentence range, MCL 769.34(3), the court sentenced defendant to a term of 8 years (96 months) to 15 years (the statutory maximum sentence). Defendant appealed, challenging both the scoring of the guidelines and the trial court's decision to exceed the guidelines minimum sentence range. While his case was pending in the Court of Appeals, the United States Supreme Court decided Alleyne v United States, 570 U.S.
__; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), which extended the rule of Apprendi v New Jersey, 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), and held that a fact that increases either end of a defendant's sentencing range must have been admitted by the defendant or found by the jury beyond a reasonable doubt. After allowing defendant to file a supplemental brief challenging the guidelines scoring on Alleyne grounds, the Court of Appeals, BECKERING, P.J., and O'CONNELL and SHAPIRO, JJ., affirmed defendant's sentence in three separate opinions and rejected the Alleyne challenge. Judge O'CONNELL stated in the lead opinion that the panel was bound by People v Herron, 303 Mich.App. 392; 845 N.W.2d 533 (2013), which had rejected the same argument based on Alleyne. Judge BECKERING stated in her concurring opinion that had she not been bound by Herron, she would have held that requiring judicial fact-finding to set the guidelines mandatory minimum sentence range violated Alleyne and that the guidelines should be made advisory to cure the constitutional problem. In his concurring opinion, Judge SHAPIRO stated that he would have held that Alleyne only bars requiring judicial fact-finding to set the bottom of the minimum sentence range under the guidelines, so only the bottom of the range needed to be made advisory to cure the constitutional flaw. 304 Mich.App. 278; 849 N.W.2d 388 (2014). Defendant sought leave to appeal, and the Supreme Court granted his application to address the constitutional question presented by defendant's Alleyne challenge. 496 Mich. 852, 847 N.W.2d 925 (2014) .
For PEOPLE OF MI, Plaintiff-Appellee: DANIELLE WALTON, PROSECUTOR-APPELLATE DIVISION, PONTIAC, MI.
For RAHIM OMARKHAN LOCKRIDGE, Defendant-Appellant: DESIREE M. FERGUSON, DETROIT, MI.
Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein. MARKMAN, J. (dissenting).
[498 Mich. 364] BEFORE THE ENTIRE BENCH
Bridget M. McCormack, J.
This case presents the question whether the Michigan sentencing guidelines violate a defendant's Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), as extended by Alleyne v United States, 570 U.S. ; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), applies to Michigan's sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the " mandatory minimum" sentence under Alleyne.
To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and [498 Mich. 365] compelling reason for that departure.
Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 U.S. 220, 233; 125 S.Ct. 738; 160 L.Ed.2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 U.S. at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.
In this case the defendant's guidelines minimum sentence range was irrelevant to the upward departure sentence he ultimately received. Accordingly, we hold
that he cannot show the prejudice necessary to establish plain error under People v Carines, 460 Mich. 750; 597 N.W.2d 130 (1999), and we affirm his sentence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The defendant was convicted by a jury of involuntary manslaughter for his wife's death. At sentencing, defense counsel agreed with scoring OV 3 (physical [498 Mich. 366] injury to victim) at 25 points and OV 5 (psychological injury to member of victim's family) at 15 points; counsel did not mention OV 6 (offender's intent to kill or injure another individual), for which 10 points were assessed. Counsel did challenge the scoring of OV 9 (number of victims) and OV 10 (exploitation of a vulnerable victim), but both only on the ground that the facts of the case did not support the number of points assessed by a preponderance of the evidence. The trial court felt otherwise and kept the score of both variables at 10 points.
With his prior record variable score of 35 points, the defendant's resulting guidelines minimum sentence range was 43 to 86 months, but the trial court exceeded the guidelines and imposed a minimum sentence of 8 years (96 months) and a maximum sentence of 15 years (180 months, the statutory maximum). As substantial and compelling reasons justifying the departure, the trial court cited that defendant had violated probation orders that forbade him from being where he was when he killed his wife, that he killed his wife in front of their three children as they struggled to stop him from doing so, and that he left the children at home with their mother dead on the floor without concern for their physical or emotional well-being, which were not factors already accounted for in scoring the guidelines. Furthermore, the court said, the extent of the defendant's prior domestic violence was not considered in the guidelines.
[498 Mich. 367] The defendant appealed by right in the Court of Appeals, challenging the scoring of the guidelines and the trial court's decision to exceed the guidelines minimum sentence range. While this case was pending in the Court of Appeals, the United States Supreme Court decided Alleyne, and defense counsel moved to file a supplemental brief challenging the scoring of the guidelines on Alleyne grounds. The Court of Appeals granted that motion. In a published opinion, the Court of Appeals affirmed the defendant's sentence and rejected his Alleyne challenge to the scoring of guidelines, adhering to its recent decision in People v Herron, 303 Mich.App. 392; 845 N.W.2d 533 (2013), which had rejected that same argument. People v. Lockridge,
304 Mich.App. 278, 284; 849 N.W.2d 388 (2014) (opinion by O'Connell, J.). Judge Beckering and Judge Shapiro filed concurring opinions agreeing with Judge O'Connell's lead opinion that the panel was bound by Herron, but disagreeing with the outcome reached in Herron. If not bound by Herron, Judge Beckering would have held that requiring judicial fact-finding to set the guidelines mandatory minimum sentence range violated Alleyne. Id. at 285 (opinion by Beckering, P.J.). She would have made the guidelines advisory to cure the constitutional problem. Id. at 286. Judge Shapiro would have held that Alleyne only bars requiring judicial fact-finding to set the bottom of the minimum sentence range, so only the bottom of the range need be made advisory to cure the constitutional flaw. Id. at 311, 315-316 (opinion by Shapiro, J.)
[498 Mich. 368] The defendant filed an application for leave to appeal in this Court. We granted leave to appeal to address the significant constitutional question presented. People v Lockridge, 496 Mich. 852; 847 N.W.2d 925 (2014).
II. LEGAL BACKGROUND
The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation . . . . [US Const, Am VI.]
The right to a jury trial is a fundamental one, with a long history that dates back to the founding of this country and beyond. Duncan v Louisiana, 391 U.S. 145, 148-154; 88 S.Ct. 1444; 20 L.Ed.2d 491 (1968) (discussing the fundamental nature of the right and its long history).
The question presented in this case relates specifically to whether the procedure involved in setting a mandatory sentence infringes a defendant's Sixth Amendment right to a jury trial. One key to this inquiry is whether the pertinent facts that must be [498 Mich. 369] found are an element of the offense or a mere sentencing factor. See, e.g., Jones v United States, 526 U.S. 227, 232; 119 S.Ct. 1215; 143 L.Ed.2d 311 (1999) (" Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." ). The first United States Supreme Court case warranting specific mention here is McMillan v Pennsylvania, 477 U.S. 79; 106 S.Ct. 2411; 91 L.Ed.2d 67 (1986).
In McMillan, the Supreme Court held that the visible possession of a firearm, which the Pennsylvania statute at issue used as a fact increasing the defendant's mandatory sentence, did not constitute an
element of the crimes enumerated in its mandatory sentencing statute. Rather, it " instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt." Id. at 86. Accordingly, the McMillan Court rejected the defendant's argument that Pennsylvania's mandatory minimum sentencing act was unconstitutional.
Things began to change dramatically with Jones, however. In that case, the Court held that the fact of whether a victim suffered serious bodily injury, which authorized an increase in the defendant's sentence from 15 to 25 years, was an element of a federal statute prohibiting carjacking or aiding and abetting carjacking that must be found by a jury. Although Jones was decided on statutory rather than constitutional grounds, the Court concluded that treating the fact of bodily injury as a mere sentencing factor " would raise serious constitutional questions." Jones, 526 U.S. at 251. Justices Stevens and Scalia wrote concurring [498 Mich. 370] opinions in Jones that presaged the constitutional rule that would be established a year later in Apprendi. Id. at 252-253 (Stevens, J., concurring); id. at 253 (Scalia, J., concurring).
In Apprendi, the United States Supreme Court announced the general Sixth Amendment principle at issue in this case: " Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490 (emphasis added). The Court struck down as unconstitutional a statute that provided for a possible increase in the maximum term of imprisonment from 10 to 20 years if the trial court found, by a preponderance of the evidence, that the defendant " acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 469, quoting N.J. Stat Ann 2C:44-3(e). The Supreme Court rejected the lower courts' conclusions that the statute was constitutional because the finding of intent to intimidate was a mere " sentencing factor" under McMillan. Id. at 492.
In Harris v United States, 536 U.S. 545, 550; 122 S.Ct. 2406; 153 L.Ed.2d 524 (2002), overruled by Alleyne, the Supreme Court was squarely presented with the question " whether McMillan stands after Apprendi." A majority held that the Apprendi rule did not bar judicially found facts altering " mandatory minimum" sentences. But notably, only a plurality of the Court joined the portion of Justice Kennedy's opinion that [498 Mich. 371] distinguished Apprendi from McMillan. Id. at 556-568. In his concurring opinion, Justice Breyer wrote that he could not " easily distinguish Apprendi. . . from this case in terms of logic," but he joined the Court's judgment only because he could not " yet accept [ Apprendi 's] rule." Id. at 569-570 (Breyer, J., concurring in part). The dissenting opinion took notice, observing that " [t]his leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today's holding . . . ." Id. at 583 (Thomas, J., dissenting).
Next came Blakely v Washington, 542 U.S. 296; 124 S.Ct. 2531; 159 L.Ed.2d 403 (2004). In that case, the Supreme Court addressed a challenge to the state of Washington's " determinate" sentencing scheme and observed that " indeterminate sentencing" does not infringe on the power of a jury. Id. at 308. Ultimately, the Blakely Court held the Washington scheme unconstitutional to the extent that it allowed the trial court to impose a sentence greater than the " statutory maximum" sentence authorized by the jury verdict on the basis of the court's finding that the defendant had acted with " deliberate cruelty." Id. at 303-304. The Court again emphasized that " the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303.
In Booker, the Supreme Court addressed the application of Apprendi to a " determinate" sentencing scheme similar to Washington's, the federal sentencing guidelines. Two different majorities of the Court held that the guidelines were unconstitutional under Apprendi and Blakely, Booker, 543 U.S. at 226 (opinion by Stevens, J.), and that the proper remedy for the constitutional [498 Mich. 372] infirmity was to make the guidelines advisory rather than mandatory, id. at 245 (opinion by Breyer, J.).
The ripple effects of Apprendi, Blakely, and Booker have been significant in both state and federal courts. See, e.g., Duncan v United States, 552 F.3d 442, 445 (CA 6, 2009) (referring to the " Apprendi revolution" ). The changes in the law wrought by this new rule led this Court to address whether Michigan's sentencing guidelines were susceptible to a Sixth Amendment constitutional violation, first in a footnote in People v Claypool, 470 Mich. 715, 730 n 14; 684 N.W.2d 278 (2004), and later at greater length in People v Drohan, 475 Mich. 140, 146; 715 N.W.2d 778 (2006). In both Claypool and Drohan, this Court concluded that the Apprendi/Blakely rule did not apply to Michigan's sentencing scheme at all. This Court reached this conclusion on the basis of its determination that the Apprendi/Blakely rule was inapplicable to our " indeterminate" scheme. We reasoned in part that " the trial court's power to impose a sentence is always derived from the jury's verdict" because the jury's verdict authorized the " statutory maximum" sentence set by statute. Drohan, 475 Mich. at 161-162.
In Alleyne, the Supreme Court overruled Harris and for the first time concluded that mandatory minimum sentences were equally subject to the Apprendi rule, holding that " a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense." Alleyne, 570 U.S. at ; 133 S.Ct. at 2160 (emphasis added). Alleyne, like Harris, involved a statute that provided for a mandatory minimum sentence of five years, but that mandatory minimum increased to seven years if it was determined that the defendant had " brandished" a firearm. The Court concluded [498 Mich. 373] that there was " no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum," id. at 2163, but noted that its holding did not restrict fact-finding used to guide judicial discretion in selecting a punishment within the limits fixed by law, id. Justice Breyer concurred separately, explaining that while he " continue[d] to disagree with Apprendi," he nevertheless believed that it was " highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find
sentencing facts that require a judge to impose a higher sentence." Id. at 2166-2167 (Breyer, J., concurring).
A Sixth Amendment challenge presents a question of constitutional law that this Court reviews de novo. Drohan, 475 Mich. at 146.
The defendant argues that because Alleyne extended the Apprendi rule from statutory maximum sentences to mandatory minimum sentences, Michigan's sentencing guidelines are no longer immune from that rule. We agree. From Apprendi and its progeny, including Alleyne, we believe the following test provides the proper inquiry for whether a scheme of mandatory minimum sentencing violates the Sixth Amendment: Does that scheme constrain the discretion of the sentencing court by compelling an increase in the mandatory minimum sentence beyond that authorized by the jury's verdict alone? Michigan's sentencing guidelines do so to the extent that the floor of the guidelines range compels a trial judge to impose a mandatory minimum sentence beyond that authorized by the jury verdict. Stated differently, to the extent that OVs scored on the [498 Mich. 374] basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e. the defendant's " mandatory minimum" sentence, that procedure violates the Sixth Amendment.
The pertinent language in Alleyne supports this conclusion. " Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's 'expected punishment has increased as a result of the narrowed range' and 'the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.'" Alleyne, 570 U.S. at ; 133 S.Ct. at 2161, quoting Apprendi, 530 U.S. at 522 (Thomas, J., concurring). Similarly, by virtue of the fully scored sentencing guidelines, a judge is required to " impose a higher punishment than he might wish." Just as the judge's finding that there was " brandishing" in Alleyne aggravated the penalty in that case by increasing the floor of the range prescribed by law, the OV scoring judges must do as part of our system increases the bottom of the mandatory guidelines range used to set the minimum sentence.
In criticizing the Alleyne majority's extension of the Apprendi rule, Chief Justice Roberts's dissenting opinion also had language supporting this conclusion. He wrote:
Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight -- so long as the sentence remained within the range authorized by the jury. Now, in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges [498 Mich. 375] and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance. [ Alleyne, 570 U.S. at ; 133 S.Ct. at 2170-2171 (Roberts, C.J., dissenting) (emphasis added).]
In other words, unrestrained judicial discretion within a broad range is in; legislative constraints on that discretion that increase a sentence (whether minimum or maximum) beyond that authorized by the jury's verdict are out.
In Herron, the Court of Appeals found no constitutional flaw in our sentencing guidelines, reasoning in part that judicial fact-finding in our guidelines scheme is permissible because it is used only to " inform the trial court's sentencing discretion within the maximum determined by statute and the jury's verdict." Herron, 303 Mich.App. at 403. We reject this analysis because it ignores two key aspects of the Apprendi rule as extended by Alleyne : (1) the fact-finding is used to constrain, not merely inform, the court's sentencing discretion by increasing the mandatory minimum sentence and (2) because Alleyne now prohibits increasing the minimum as well as the maximum sentence in this manner, it is insufficient to say that the guidelines scheme is constitutional because the maximum is set by statute and authorized by the jury's verdict.
Consider this example: a defendant with no prior record who is convicted of kidnapping, MCL 750.349, a Class A offense, MCL 777.16q, which carries a statutory maximum sentence of life in prison. Assume further that no facts necessary to score any of the OVs are admitted by the defendant or necessarily found by [498 Mich. 376] the jury as part of the verdict. Under our sentencing guidelines, that defendant would be subject to a minimum sentence of no less than 21 months (the bottom of the applicable guidelines range) and a maximum sentence of life (the statutory maximum). If this were the end of the road and the trial court were free to sentence the defendant anywhere within this range, we would agree that no Sixth Amendment impediment exists.
But there is more. MCL 777.21(1)(a) and MCL 777.22(1) direct courts to score OVs 1 through 4, 7 through 14, 19 and 20 for crimes against a person, a designation that applies to kidnapping, MCL 777.16q. Under this hypothetical situation, a trial court could find facts not found by a jury or admitted by the defendant that could potentially increase the floor of the defendant's minimum sentence from 21 months to as much as 108 months. MCL 777.62. Those facts are " fact[s] increasing either end of the range" of penalties to which a defendant is exposed, Alleyne, 570 U.S. at ; 133 S.Ct. at 2160, and therefore the process violates the Sixth Amendment.
The example provided by the Blakely Court of what differentiated a constitutionally permissible " indeterminate" sentencing scheme from an impermissible one, which the Drohan Court quoted and the dissent here also quotes, further illustrates this point:
In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the [498 Mich. 377] burglar who enters a home unarmed is entitled to no more than a 10-year sentence--and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury. [ Blakely, 542 U.S. at 309.]
Michigan's sentencing scheme is not like the first example, in which a court has unfettered discretion to impose a sentence within a range authorized by the jury's verdict. Rather, it is more akin to the latter example. Guidelines scored solely on a defendant's admissions and prior convictions set a baseline minimum sentence (i.e. 10 years in the Blakely example or 21 months in our hypothetical example), with additional time added by aggravating factors (such as possession or use of a gun, as in the Blakely example): the OVs, which are generally scored on the basis of facts found by the court rather than a jury. The sentencing court's authority to score the OVs is constrained by law. A defendant's possible minimum sentence is increased as a result of that scoring, and the court is constrained to impose a minimum sentence in conformity with the applicable guidelines range that is increased by the scoring of those OVs. Thus, Michigan does indeed have a system that punishes an offense with a baseline minimum sentence of no less than X months, with the potential for Y months to be added for the use of a gun, Z months to be added for killing a victim, and so forth. This reality could be ignored when Drohan was decided because the Apprendi rule applied only to " statutory maximums" and scoring the sentencing guidelines and establishing the guidelines minimum sentence range does not alter the [498 Mich. 378] maximum sentence. But that analysis is no longer sustainable in light of Alleyne 's extension of the Apprendi rule to minimum sentences.
In Drohan, this Court analyzed the evolution of the Apprendi rule and concluded that the " statutory maximum" sentence in Michigan for Apprendi/Blakely purposes is generally the maximum sentence set by the statute setting forth the elements of the offense at issue. Drohan, 475 Mich. at 164. Accordingly, because at that time the Apprendi rule only applied to maximum sentences, not minimums, and judicial fact-finding to set the guidelines range only affected minimum sentences, we held that Michigan's sentencing guidelines scheme did not violate the Sixth Amendment. On this point, Drohan necessarily relied on Harris 's holding that the Apprendi rule did not apply to minimum sentences. Harris, 536 U.S. at 568.
Alleyne changed that. In Alleyne, the United States Supreme Court overruled Harris and held for the first time that the Apprendi rule applied with equal force to minimum sentences. Alleyne, 570 U.S. at ; 133 S.Ct. at 2155. With minimum sentences now also relevant to the Sixth Amendment analysis, the statutory authority of the court can infringe the constitutional authority of the jury because the guidelines used to set the minimum sentence require a court to increase a defendant's minimum sentence beyond the minimum sentence authorized by the jury's verdict alone. To the extent that Drohan asserted that our sentencing scheme is constitutional because the jury verdict always authorizes the maximum sentence provided by law, that analysis is no longer sufficient to complete the constitutional analysis in light of Alleyne; rather, under Alleyne, the Legislature may not require judicial fact-finding that results in a mandatory increase in [498 Mich. 379] either the minimum or maximum sentence beyond the range set by the jury verdict.
Therefore, a straightforward application of the language and holding in Alleyne
leads to the conclusion that Michigan's sentencing guidelines scheme violates the Sixth Amendment. The prosecution and amici curiae do not dispute the holding in Alleyne, but instead advance three arguments in an attempt to sidestep it. First, it is asserted that just as we concluded in Drohan, the Apprendi rule (as now extended by Alleyne ) does not apply to Michigan's sentencing scheme because that scheme is " indeterminate." Second, Michigan's sentencing guidelines do not violate the Sixth Amendment because the minimum sentences they set merely establish a parole eligibility date rather than an absolute prison release date and there is no constitutional right to parole. Third, the minimum sentence set by the sentencing guidelines is not a " mandatory minimum" sentence for purposes of Alleyne. For the reasons that follow, we reject each of these arguments.
A. MICHIGAN'S " INDETERMINATE" SENTENCING SCHEME
The prosecution and the dissent rely primarily on their conclusion that the Apprendi rule does not apply to " indeterminate" sentencing schemes like Michigan's to dismiss the defendant's constitutional claim. It is certainly correct that the United States Supreme Court has repeatedly distinguished between " determinate" and " indeterminate" sentencing systems and referred to the latter as not implicating Sixth Amendment concerns and that Alleyne did nothing to alter or undermine that distinction. Because we are bound by the United States Supreme Court's decisions interpreting the Sixth Amendment such as Apprendi and Alleyne, [498 Mich. 380] however, it is critical to understand exactly what those terms mean in that context rather than in the abstract. And significantly, Michigan's sentencing scheme is not " indeterminate" as the United States Supreme Court has ever applied that term.
In Blakely, in responding to the dissent, the majority stated, without defining its terms, that " indeterminate" sentencing schemes would not violate the Apprendi rule. In quoted language relied on heavily by the prosecution and the dissent in this case, the Court asserted:
By reversing the judgment below, we are not, as the State would have it, " find[ing] determinate sentencing schemes unconstitutional." This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment. . . .
Justice O'Connor argues that, because determinate-sentencing schemes involving judicial fact-finding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury's traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial fact-finding, in that a judge (like a parole
board) may implicitly rule on those facts he deems [498 Mich. 381] important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence-- and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. [ Blakely, 542 U.S. at 308-309 (citations omitted) (emphasis added).]
The Blakely dissent, however, identified states with both indeterminate and determinate (as Drohan understood those terms) sentencing schemes as ones that Blakely cast " constitutional doubt" over because they had " guidelines systems." Id. at 323 (O'Connor, J., dissenting). Michigan was among the states listed. Id. Legal commentators have also noted that the United States Supreme Court has never referred to Michigan's sentencing scheme as " indeterminate" for constitutional purposes and that Justice O'Connor's Blakely dissent suggested the opposite; rather, the Court's focus in discussing " indeterminate" schemes has been on the absence of mandatory constraints placed on a court's discretion when sentencing a defendant within a range of possible sentences. See Hall, Mandatory Sentencing Guidelines by Any Other Name: When " Indeterminate Structured Sentencing" Violates Blakely v Washington, 57 Drake L Rev 643, 669 & n 139 (2009) (hereinafter, Mandatory Sentencing Guidelines ) (stating that " in Blakely, the Supreme Court understood an indeterminate sentencing regime to be one in which the sentencing judge enjoys 'unfettered discretion' within statutory and constitutional limits, and that a mandatory sentencing guidelines system, even when used in conjunction with a parole board, is fundamentally inconsistent with this definition of indeterminate sentencing" ) (emphasis added); Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109 Colum L Rev 893, 907 (2009) (observing that the United States Supreme [498 Mich. 382] Court has used " 'indeterminate' to mean 'advisory' and 'determinate' to mean 'binding' (i.e., determinative of the outcome)" ); see also Cunningham v California, 549 U.S. 270, 291-292 ; 127 S.Ct. 856; 166 L.Ed.2d 856 (2007) (" Merely advisory provisions, recommending but not requiring the selection of particular sentences in response to differing sets of facts . . . would not implicate the Sixth Amendment." ), quoting Booker, 543 U.S. at 233 (quotation marks omitted); Alleyne, 133 S.Ct. at 2165 (Sotomayor, J., concurring) (observing that the United States Supreme Court has " applied Apprendi to strike down mandatory sentencing systems at the state and federal levels" ) (emphasis added). At
least one other court has also recognized that the United States Supreme Court has used the term " indeterminate" " imprecisely." Commonwealth v Yuhasz, 592 Pa 120, 133 n 4; 923 A.2d 1111 (2007). And at no time has the [498 Mich. 383] Supreme Court specifically defined its use of the term or defined it by reference to Black's Law Dictionary.
Accordingly, the relevant distinction between constitutionally permissible " indeterminate" sentencing schemes and impermissible " determinate" sentencing schemes, as the United States Supreme Court has used those terms, turns not on whether the sentences produced by them contain one or two numbers;  rather, it turns on whether judge-found facts are used to curtail judicial sentencing discretion by compelling an increase in the defendant's punishment. If so, the system violates the Sixth Amendment. Michigan's sentencing guidelines do just that.
Because Michigan's sentencing scheme is not " indeterminate" as that term has been used by the United States Supreme Court, our sentencing guidelines scheme cannot be exempt from the Apprendi and Alleyne rule on that basis. And the escape hatch that Harris provided for Drohan-- that Apprendi applied only to maximum sentences and the statutory maximums in Michigan are set by law and therefore never increased based on judge-found facts--has been sealed by Alleyne.
B. NO CONSTITUTIONAL RIGHT TO PAROLE
In a permutation of its " indeterminate" sentencing argument, the dissent also contends that Michigan's sentencing scheme does not violate Alleyne because a defendant's minimum sentence merely determines when that defendant is eligible for parole consideration [498 Mich. 384] and there is no constitutional entitlement to parole. This argument was not raised by the prosecution, but was advanced instead by the Attorney General in an amicus curiae brief. We have no quarrel with the general proposition that a defendant has no constitutional entitlement to be paroled, as that proposition is well established by Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7; 99 S.Ct. 2100; 60 L.Ed.2d 668 (1979), but we do not see its relevance here. The right at issue includes the Sixth Amendment right to a jury trial, not just the due-process right to be free of deprivation of one's liberty that was at issue in Greenholtz. And that right includes the right to have a " jury determination" of all the pertinent facts used in increasing the prescribed range of penalties, including both the minimum
and the maximum sentences. The violation of that right occurs well before a defendant even begins serving that sentence. Alleyne, 570 U.S. at ; 133 S.Ct. at 2160 (noting that " a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense" that must be found by a jury). The failure to have the jury find an element establishing " a distinct and aggravated crime," id. at ; 133 S.Ct. at 2163, not the resulting sentence, is the constitutional deficiency, id. at ; 133 S.Ct. at 2162 (observing that " if a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant [498 Mich. 385] ultimately received a sentence falling within the original sentencing range" ) (emphasis added). Accordingly, the assertion that a defendant has no constitutional right to serve less than his or her maximum sentence is entirely correct, but also entirely beside the point. King & Applebaum, Alleyne on the Ground: Factfinding That Limits Eligibility for Probation or Parole Release, 26 Fed Sent Rep 287, 289 (2014) (" The minimum sentence that matters in Alleyne is the floor of the range available to the sentencing judge, the penalty 'affixed to the crime,' not the sentence that might actually be served by the offender. That a paroling authority may ultimately decide not to release the defendant when he first becomes eligible is irrelevant." ). Neither the dissent nor the Attorney General cites any other case for the novel proposition that application of the Apprendi rule hinges on whether a defendant is entitled to immediate release upon completion of the sentence at issue or whether the defendant is simply eligible for release or to be paroled.
Finally, it is worth noting that this argument is not supported by other state court decisions applying Alleyne to their sentencing schemes. See, e.g., State v Soto, 299 Kan. 102; 322 P.3d 334 (2014) (rejecting as unconstitutional under Alleyne a statute that provided for a prison sentence of life with 50 years before the possibility of parole ). And at bottom, what this argument ignores is that in Alleyne, the Supreme Court held that like a maximum sentence, a minimum sentence enhanced by judicial fact-finding also implicates [498 Mich. 386] the Sixth Amendment jury-trial protection. It is therefore no answer to say that Alleyne is inapplicable here because a defendant has no constitutional right to parole.
C. " MANDATORY MINIMUM" SENTENCES UNDER ALLEYNE
The prosecution and the dissent's final basis for concluding that Alleyne does not apply to our sentencing guidelines scheme is that the guidelines do not produce " mandatory minimum" sentences for Alleyne purposes. We again disagree.
First, this argument seems to assume that Alleyne applies only to what one might consider traditional mandatory minimums, statutes that provide that upon conviction of an offense, the court " shall sentence the defendant to a term of imprisonment of not less than" x number of years. This fails to account for the broad nature of the Apprendi rule generally that " 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed'" must be established by proof
beyond a reasonable doubt. Apprendi, 530 U.S. at 490, quoting Jones, 526 U.S. at 252-253 (emphasis added). While Alleyne applied this rule to a mandatory minimum sentence, and therefore necessarily spent a great deal of time articulating how the mandatory minimum sentence in that case violated Apprendi, it also reemphasized that the Sixth Amendment applies to facts used to set the range of sentences to which a defendant is exposed. Alleyne, 570 U.S. at ; 133 S.Ct. at 2160 (" [B]ecause the legally prescribed range is the penalty affixed to the crime, . . . it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense." ). Thus, Alleyne cannot be dismissed as inapplicable simply because [498 Mich. 387] the statute at issue in that case looks different from our statutory guidelines scheme or because Alleyne only applies to the traditional mandatory minimum sentences mentioned previously. As long as the minimum sentence is " mandatory," i.e. required by law, Alleyne applies.
More importantly, the core argument that the guidelines do not produce " mandatory" minimum sentences is itself incorrect. The guidelines minimum sentence range is binding on trial courts, absent their articulating substantial and compelling reasons for a departure. The dissent notes that MCL 769.34(4)(a) labels the guidelines ranges as " recommended minimum sentence ranges," but elsewhere the same statute states that " the minimum sentence imposed by a court of this state . . . shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed." MCL 769.34(2) (emphasis added). As we have stated many times, " shall" indicates a mandatory directive. Fradco, Inc v Dep't of Treasury, 495 Mich. 104, 114; 845 N.W.2d 81 (2014). This is precisely the analysis the United States Supreme Court engaged in in Booker, when it invalidated the federal sentencing guidelines because it concluded they were mandatory. Booker, 543 U.S. at 233-234 (" The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges. While subsection (a) of § 3553 of the sentencing statute lists the Sentencing Guidelines as one factor to be considered in imposing a sentence, subsection (b) directs that the court ' shall impose a sentence of the kind, and within the range' established by the Guidelines, subject to departures in specific, limited cases." ). Accordingly, Michigan's guidelines produce sentences that are just as mandatory as those at issue in Alleyne.
[498 Mich. 388] But, the dissent asserts, the availability of a sentence departure from the guidelines renders them not truly mandatory. This argument must necessarily reject language from Booker that specifically stated that the availability of a departure " does not avoid the constitutional issue . . . ." Id. at 234; see also Blakely, 542 U.S. at 305 n 8 (stating that that a judge " cannot make that judgment [that compelling reasons exist to depart from the guidelines] without finding some facts to support it beyond the bare elements of the offense" and that " [w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence" ). Much of the dissent's basis for rejecting the Booker language, however, hinges on its earlier erroneous conclusion that Alleyne does not apply to our " indeterminate" sentencing scheme. To the
extent that the dissent's rejection of this language rests on Drohan, we see nothing in that opinion to indicate that the Drohan Court rejected or even considered this language in reaching its decision. For these reasons, we conclude that Michigan's sentencing guidelines produce a " mandatory minimum" sentence to which Alleyne applies.
Because the rule from Alleyne applies, the Sixth Amendment does not permit judicial fact-finding to [498 Mich. 389] score OVs to increase the floor of the sentencing guidelines range. The right to a jury trial is " a fundamental reservation of power in our constitutional structure," Blakely, 542 U.S. at 306, and therefore one that cannot be restricted in this manner.
Having concluded that Michigan's sentencing guidelines violate the Sixth Amendment rule from Apprendi, as extended by Alleyne, we must determine the appropriate remedy for the violation. We consider three options.
First, the defendant asks us to require juries to find the facts used to score all the OVs that are not admitted or stipulated by the defendant or necessarily found by the jury's verdict. We reject this option. The constitutional violation can be effectively remedied without burdening our judicial system in this manner, which could essentially turn sentencing proceedings into mini-trials. And the United States Supreme Court in Booker expressly rejected this remedy because of the profound disruptive effect it would have in every case. Booker, 543 U.S. at 248 (" It would affect decisions about whether to go to trial. It would affect the content of plea negotiations. It would alter the judge's role in sentencing." ). We agree.
Second, we consider the remedy suggested in Judge SHAPIRO's concurring opinion in this case, which would render advisory only the floor of the applicable guidelines [498 Mich. 390] range. Lockridge, 304 Mich.App. at 316 (opinion by SHAPIRO, J.). While we believe that this is a less disruptive remedy that is fairly closely tailored to the constitutional violation, we decline to adopt it because it would require us to significantly rewrite MCL 769.34(2), which provides in part:
Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in [MCL 777.11 through MCL 777.19] committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date
the crime was committed. [Emphasis added.]
The legislative intent in this provision is plain: the Legislature wanted the applicable guidelines minimum sentence range to be mandatory in all cases (other than those in which a departure was appropriate) at both the top and bottom ends. Opening up only one end of the guidelines range, even if curing the constitutional violation, would be inconsistent with the Legislature's expressed preference for equal treatment. See Booker, 543 U.S. at 248 (" In today's context--a highly complex statute, interrelated provisions, and a constitutional requirement that creates fundamental change-- we cannot assume that Congress, if faced with the statute's invalidity in key applications, would have preferred to apply the statute in as many other instances as possible." ) (emphasis added). And it would require a significant rewrite of the statutory language to maintain the mandatory nature of the guidelines ceiling but render the guidelines floor advisory only. Accordingly, we decline to limit the remedy for the constitutional infirmity to the floor of the guidelines range.
[498 Mich. 391] Third, the prosecution, in turn, asks us to Booker -ize the Michigan sentencing guidelines, i.e., render them advisory only. We agree that this is the most appropriate remedy. First, it is the same remedy adopted by the United States Supreme Court in Booker. Second, it requires the least judicial rewriting of the statute, as we need only substitute the word " may" for " shall" in MCL 769.34(2) and remove the requirement in MCL 769.34(3) that a trial court that departs ...