Lenawee CC: 17-005792-AR
Bridget M. McCormack, Chief Justice, David F. Viviano, Chief
Justice Pro Tem, Stephen J. Markman, Brian K. Zahra, Richard
H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh,
order of the Court, the application for leave to appeal the
April 30, 2019 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
Viviano, J. (concurring).
concur in the Court's denial order and write separately
to explain my decision. This Court may exercise its
discretion to deny leave when we determine that, despite the
obvious and significant impact of the case on the parties,
the Court does not believe that the legal issues raised in
the appeal are of sufficient statewide import for the Court
to intervene. See MCR 7.305(B)(3) (including as one
alternative ground for granting leave that the application
"show[s] that . . . the issue involves a legal principle
of major significance to the state's
jurisprudence."). The prosecutor here concedes something
that I also know to be true from my time as a trial judge:
criminal defendants very rarely prefer jail time or a prison
sentence over probation. And when that rare circumstance
occurs, trial judges routinely oblige the defendant-after
all, why would a trial judge sentence the defendant to a
probationary sentence when the defendant has already
indicated that he or she is unable or unwilling to comply
with the terms and conditions of probation? Probation is an
alternative to incarceration that "is granted in the
hope of rehabilitating the defendant . . . ." People
v Gallagher, 55 Mich.App. 613, 619 (1974) (cleaned up).
There would appear to be little hope of rehabilitating a
defendant who refuses in advance to comply with the terms and
conditions of his probation, especially since the only
sanction left for the court to impose is the very term of
incarceration already requested by the defendant. This is all
another way of saying that, even if the dissenting
justices' legal analysis is correct-a conclusion subject
to debate-why spend considerable judicial resources resolving
the issue when it arises so infrequently and in such strange
not inclined to intervene here for yet another reason: the
sentence imposed by the trial judge appears to be an effort
to evade our rule requiring concurrent sentences in the
absence of statutory authority for consecutive sentences. See
People v Sawyer, 410 Mich. 531, 534 (1981). See also
In re Petition of Bloom, 53 Mich. 597, 598 (1884).
Here, although no statute authorized consecutive sentencing,
the trial judge crafted a sentence that would essentially
allow for at least the possibility of a consecutive sentence
by imposing a jail sentence in the first case and a
probationary sentence in the second. Rather than the
defendant receiving the maximum term of incarceration (one
year) in both cases and having those terms run concurrently,
he received the maximum term only in the first case. He then
faces the same term again in the second case if he fails to
complete his term of probation successfully. Because the
sentence in the second case may be imposed after completion
of the defendant's first sentence, the two sentences
would be, in essence, consecutive sentences. Thus, even if
the dissenting justices' analysis were correct and the
legal issue were significant enough to be vindicated in an
appropriate case, I also would not intervene here because it
would sanction the trial judge's end run around our
longstanding rule regarding concurrent sentencing.
these reasons, I concur in the Court's denial order.
Clement, J. (concurring).
concur in the Court's order denying leave to appeal.
Regardless of what one thinks of the Court of Appeals'
attention to its own precedents interpreting the law of
probation, I believe that the text and structure of the Code
of Criminal Procedure indicate that a defendant must consent
to a sentence of probation. First, MCL 771.4 says that
"probation is a matter of grace," and a
"matter of grace" is defined as "[a] situation
in which a decision-maker uses a high degree of discretion in
deciding whether to grant some form of relief,"
Black's Law Dictionary (11th ed) (emphasis
added). It is difficult for me to see how something
involuntarily imposed on a party is a "form of
relief," especially since "relief" is defined
as "[t]he redress or benefit . . . that a party asks
of a court." Id. (emphasis added). Second,
the structure of the probation system suggests that a
defendant must agree to be placed on probation. Because MCL
771.3(2)(b) allows the trial court to impose a fine (but
without limits), the trial court is not bound by the
sentencing restrictions otherwise provided by the Michigan
Penal Code. See, e.g., People v Oswald, 208
Mich.App. 444, 445-446 (1995) (allowing a fine of $1500 as a
condition of probation for a crime which the Michigan Penal
Code caps the allowable fine at $1000). Indeed, MCL 771.3(3)
allows a trial court to "impose [any] other lawful
conditions of probation as the circumstances of the case
require or warrant or as in its judgment are proper,"
under which "judges have great discretion . . . limited
only by the requirement that conditions be lawful,"
keeping in mind that "[t]here is no ultimate catalogue
of legal or illegal terms." People v Johnson,
92 Mich.App. 766, 768 (1979). The manner in which a
probationary sentence can deviate from the restrictions the
Legislature has otherwise placed on a court's sentencing
power and discretion is a structural indication that a
sentence of probation requires the consent of the defendant;
if it could be involuntarily imposed, the Michigan Penal Code
would only limit a sentencing court to the extent that a
court chose to be limited, which does not seem to me to be
any real limit at all.
these reasons, I concur in the Court's order denying
leave to appeal.
Markman, J. (dissenting).
respectfully dissent and instead would affirm the
unremarkable proposition that within our state's justice
system, it is the trial court that determines criminal
sentences and not the defendant. And in dissenting from this
order, I would also affirm the equally unremarkable
proposition that in reviewing criminal sentences, the
appellate courts of this state, including this Court, must
affirm criminal sentences in the absence of
unconstitutionality, unlawfulness, or abuse of discretion.
Despite these commonplace propositions, the district court
here has imposed a probationary sentence-- one within the
scope of its legal judgment-- only to have the circuit court
strike down that sentence and the Court of Appeals to affirm,
on the grounds that the defendant must be allowed to
"waive" his sentence and demand instead a sentence
more to his liking-- oddly, to be sure, a sentence of
incarceration in lieu of a sentence of probation but, perhaps
more rationally understood, a sentence allowing defendant to
serve less cumulative time under state supervision for
concurrent convictions of operating while intoxicated.
Indisputably, criminal defendants are entitled to argue for
punishments in what they view as their best interest, and
they are entitled to urge these views upon the trial court,
and they are entitled even to apprise the court that, if
given a probationary sentence, they would violate a condition
of probation and thus compel the court to reincarcerate them.
However, where the defendant fails in these pursuits to
persuade the trial court as to an appropriate sentence, it is
the court that determines a criminal sentence, not
the defendant himself, and it is the obligation of appellate
courts, including this Court, absent some legal defect, to
abide by that sentence.
Court of Appeals' dissent correctly identifies the issue
involved in the instant case-- "[i]s there any
circumstance under which a criminal defendant may veto a
sentence which the trial judge intends to impose and demand a
sentence more to the defendant's liking?"-- and the
dissent equally correctly answers this query-- No. People
v Bensch, 328 Mich.App. ___, ___ (2019) (Docket No.
341585) (Tukel, J., dissenting), at 1. Moreover, the dissent
correctly understands everything else that matters about this
case--(1) that it is of no consequence, as the Court of
Appeals majority seemed to think, that the prosecutor
allegedly failed to "identif[y] any difficulties"
with defendant's assertion of authority to determine his
own sentence since, as the dissent avers, "[t]he correct
resolution [of this case] turns on legislative intent"
as expressed in the language of MCL 771.1 and not on
"policy determinations," id. at ___, slip
op at 3; (2) that the availability of probation as a
sentencing option "rests in the sound discretion of the
trial court," id. (quotation marks and citation
omitted); (3) that there is no language in our probation
statute providing that a defendant must consent to, or may
veto, a court's decision; (4) that probation being
understood as a "matter of grace" does not confer
discretion upon the defendant but upon the trial
court either to grant or to revoke probation; and (5)
that (at least until today) there has not been the slightest
indication in any case of this Court that the probationary
decisions of the trial court are either "dependent on a
defendant's approval" or "subject to [his]
veto," id. at ___, slip op at 6.
Justice CLEMENT's concurring statement, first, I
respectfully disagree that a defendant "must consent to
a sentence of probation" because such a sentence is
"a matter of grace" under MCL 771.4. Indeed, under
the concurrence's own definition, "matter
of grace" is defined as "[a] situation in which a
decision-maker uses a high degree of discretion in
deciding whether to grant some form of relief."
Black's Law Dictionary (11th ed) (emphasis
added). Thus, it is obviously the court, and not the
defendant, who possesses discretion in deciding whether to
allow probation. And equally obviously, a probationary
sentence in lieu of incarceration is most commonly understood
as constituting "relief" in the context of MCL
771.4. Second, I respectfully disagree that the
"structure of the probation system suggests that a
defendant must agree to be placed on probation" on the
grounds that a court can deviate from the restrictions the
Legislature has placed on its sentencing power without
"any real limit at all." That is simply not so.
Rather, a trial court may only render a sentence that imposes
"lawful conditions of probation as the circumstances of
the case require or warrant or as in ...