McCormack, J.
Two terms ago, in People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015), this Court, applying binding United States Supreme Court precedent, held that Michigan's sentencing guidelines scheme violates the Sixth Amendment of the United States Constitution. To remedy the constitutional violation, we held that the guidelines would thereafter be merely advisory rather than mandatory. In these consolidated cases, we address residual issues stemming from our decision in Lockridge. We hold the following:
(1) In Lockridge, we held, and today reaffirm, that the legislative sentencing guidelines are advisory in all applications.
(2) We affirm the Court of Appeals' holding in People v. Steanhouse, 313 Mich.App. 1, 880 N.W.2d 297 (2015), that the proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the "principle of proportionality" set forth in People v. Milbourn, 435 Mich. 630, 636, 461 N.W.2d 1 (1990), "which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender."
(3) We decline to import the approach to reasonableness review used by the federal courts, including the factors listed in 18 USC 3553(a), into our jurisprudence.
(4) We agree with the Court of Appeals that defendant Alexander Steanhouse did not preserve his Sixth Amendment challenge to the scoring of the guidelines and that defendant Mohammad Masroor did
(5) We reverse, in part, the judgments of the Court of Appeals in both cases to the extent they remanded to the trial court for further sentencing proceedings under United States v. Crosby, 397 F.3d 103 (C.A. 2, 2005).
(6) Because of our ruling in (5), in lieu of granting leave to appeal in the defendants' appeals (Docket Nos. 152671 and 152871 through 152873), pursuant to MCR 7.305(H)(1), we remand those cases to the Court of Appeals for plenary consideration of whether the departure sentences imposed by the trial courts were reasonable under the standard set forth in this opinion. In all other respects, leave to appeal with regard to those applications is denied because we are not persuaded that the questions presented should be reviewed by this Court.
In Lockridge, we relied on the United States Supreme Court's recent decision in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to conclude that Michigan's mandatory sentencing guidelines violated the Sixth Amendment because they require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increased the floor of the guidelines' minimum sentence range. As a remedy for the constitutional infirmity, we held that the guidelines were advisory only and that many defendants sentenced under the mandatory guidelines were entitled to Crosby remands for the trial court to determine whether it would have imposed a materially different sentence if it had been aware that the guidelines were not mandatory. We also held that departure sentences post-Lockridge would be reviewed for reasonableness, though we did not elaborate on the proper standard for this reasonableness review. Lockridge, 498 Mich. at 392, 870 N.W.2d 502.
The defendant was jury-convicted of assault with intent to murder (AWIM), MCL 750.83, and receiving and concealing stolen property with a value between $1,000 and $20,000, MCL 750.535(3)(a). Defense counsel objected at sentencing to the evidentiary basis for scoring OVs 5, 6, and 7, MCL 777.35, MCL 777.36, and MCL 777.37. The trial court upheld the scoring of OVs 5 and 6 but eliminated points for OV 7 for lack of factual support. The trial court departed from the applicable guidelines range (calling for a minimum prison term of 171 to 285 months) and imposed a 30- to 60-year (360- to 720-month) prison sentence for the AWIM count, concurrent with a 1- to 5-year sentence for the stolen-property count.
The Court of Appeals affirmed the defendant's convictions in a published opinion but ordered a Crosby remand. The panel then proceeded to evaluate two potential approaches it could adopt to frame the "reasonableness" review of sentences post-Lockridge: (1) the standard currently employed by the federal courts, which is guided by the factors in 18 USC 3553(a), or (2) the "principle of proportionality" standard from Milbourn. The panel adopted the latter standard. Steanhouse, 313 Mich.App. at 46-47, 880 N.W.2d 297.
Both the defendant and the prosecution sought leave to appeal in this Court. We granted the prosecution's application for leave to appeal, ordered it to be argued and submitted with the prosecution's application for leave to appeal in Masroor, and kept the defendant's application for leave to appeal pending. People v. Steanhouse, 499 Mich. 934, 879 N.W.2d 252 (2016).
The defendant, in three cases tried together, was jury-convicted of 10 counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and five counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. At sentencing, defense counsel made a general objection to scoring the guidelines on the basis of judicial fact-finding, citing Alleyne, 570 U.S. 99, 133 S.Ct. 2151, and objected to the scoring of several OVs on the basis that the scoring was unsupported by a preponderance
The Court of Appeals affirmed the defendant's convictions in a published opinion but ordered a Crosby remand and directed the trial court to apply the "proportionality" standard adopted in Steanhouse. But the panel majority said that but for the Steanhouse decision, it would have affirmed the defendant's sentences by applying the federal "reasonableness" standard from Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which was specifically rejected in Steanhouse, and it called for a conflict panel to resolve which standard was the proper one and "so that the procedure established by [the Steanhouse] panel may be more carefully considered by a larger number of the judges of this Court."
On December 17, 2015, the Court of Appeals issued an order announcing that a special panel would convene pursuant to MCR 7.215(J) to resolve the conflict between these cases "concerning the standards applicable to review for reasonableness of sentences constituting departures from the recommendations of the sentencing guidelines, and the extent to which remands are required in cases involving sentencing decisions before People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015), was decided"; the next day, however, the Court issued another order vacating that order because of a polling error and stating that a special conflict panel would not be convened. People v. Masroor, 313 Mich.App. 358, 880 N.W.2d 812 (2015).
As in Steanhouse, both the defendant and the prosecution appealed in this Court. We granted the prosecution's application for leave to appeal, ordered it to be argued and submitted with the prosecution's application for leave to appeal in Steanhouse, and kept the defendant's application for leave to appeal pending. People v. Maoor, 499 Mich. 934, 879 N.W.2d 252 (2016).
The prosecution contends that this Court's decision in Lockridge rendered the legislative sentencing guidelines advisory only in cases that involved judicial fact-finding that increased the applicable guidelines range and that the guidelines remain mandatory in all other cases. Despite its argument that our holding in Lockridge was unclear, the prosecution has cited no case — and we have found none — in which a lower court has held that the guidelines remained mandatory in any application post-Lockridge. Additionally, we note that no party in Lockridge — including the prosecution as amicus — argued that the remedy set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), should extend only to cases in which judicial fact-finding occurred. Indeed, in Lockridge, "the prosecution ... ask[ed] us to Booker-ize the Michigan sentencing guidelines, i.e., render them advisory only. We agree[d] that this [wa]s the most appropriate remedy." Lockridge, 498 Mich. at 391, 870 N.W.2d 502. The prosecution, albeit a different prosecutor's office than in Lockridge,
We disagree and reaffirm Lockridge's remedial holding rendering the guidelines advisory in all applications. As we stressed in Lockridge, our constitutional holding was premised on the interplay of two key aspects of the guidelines: the requirement of judicial fact-finding to score them and their mandatory nature. Lockridge, 498 Mich. at 364, 870 N.W.2d 502 (outlining the constitutional error as "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"). What made the guidelines unconstitutional, in other words, was the combination of the two mandates of judicial fact-finding and adherence to the guidelines. United States v. Pirani, 406 F.3d 543, 551 (C.A. 8, 2005) (describing the constitutional error as "the combination of" a sentencing enhancement based on judge-found facts and a mandatory guidelines regime). We therefore held MCL 769.34(2), which imposed the second mandate, to be constitutionally deficient.
Assuming without deciding that mandatory guidelines would remain constitutional in some applications — i.e., cases in which no judicial fact-finding occurs that increases the applicable guidelines range
First, the distinction between judge-found facts and facts sufficiently admitted by a defendant that they may be used to increase the defendant's sentence is unclear.
Finally, we believe that finality interests strongly support adherence to our holding in Lockridge. We decided Lockridge almost two years ago and have ordered scores of Crosby remands in the interim. Trial courts have seemingly uniformly understood our decision to have imposed a purely advisory system.
We therefore decline to modify the remedial holding in Lockridge, which rendered the sentencing guidelines advisory in all cases. "Sentencing courts must ... continue to consult the applicable guidelines range and take it into account when imposing a sentence ... [and] justify the sentence imposed in order to facilitate appellate review." Lockridge, 498 Mich. at 392, 870 N.W.2d 502.
Next, we turn to an issue that divided the Steanhouse and Masroor panels: the proper standard to use to determine whether a defendant's departure sentence is so unreasonable as to constitute an abuse of the trial court's discretion and warrant reversal on appeal.
In light of the substantial overlap and the identical standard of review for appellate courts, little likely separates the two approaches in terms of the outcomes they would produce in a given case. But we affirm the Steanhouse panel's adoption of the Milbourn principle-of-proportionality test in light of its history in our jurisprudence. The statutory factors in 18 USC 3553(a) were created by Congress for use by the federal courts and include reference to "policy statements" issued by the Sentencing Commission or by act of Congress that have no counterpart in Michigan law.
The principle of proportionality has a lengthy jurisprudential history in this state. See Milbourn, 435 Mich. at 650, 461 N.W.2d 1, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 S.Ct. 793 (1910). In Milbourn, we described that principle as one in which
In describing how that principle interacted with the then-existing advisory judicial sentencing guidelines, we said that "the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range." Id. at 661, 461 N.W.2d 1.
In People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003), this Court held that the Legislature had incorporated the principle of proportionality into the newly adopted legislative sentencing guidelines. Id. at 263, 666 N.W.2d 231 (stating that the Legislature "subscribed to this principle of proportionality in establishing the statutory sentencing guidelines"); see also People v. Smith, 482 Mich. 292, 304-305, 754 N.W.2d 284 (2008) (holding that in order "to complete our analysis of whether the trial judge in this case articulated substantial and compelling reasons for the departure, we must, of necessity, engage in a proportionality review").
Although in Lockridge we followed the lead of the United States Supreme Court in Booker, 543 U.S. at 233, 125 S.Ct. 738, in the remedy we adopted for the constitutional flaw in the sentencing guidelines (making the guidelines fully advisory), and the United States Court of Appeals for the Second Circuit in Crosby, for its remand procedure, nothing else in our opinion indicated we were jettisoning any of our previous sentencing jurisprudence outside the Sixth Amendment context. Moreover, none of the constitutional principles announced in Booker or its progeny compels us to depart from our longstanding practices applicable to sentencing. Since we need not reconstruct the house, we reaffirm the proportionality principle adopted in Milbourn and reaffirmed in Babcock and Smith.
The Court reasoned that these approaches would "come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range." Id. The Michigan principle of proportionality, however, does not create such an impermissible presumption. Rather than impermissibly measuring proportionality by reference to deviations from the guidelines, our principle of proportionality requires "sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Milbourn, 435 Mich. at 636, 461 N.W.2d 1. The Masroor panel was concerned that dicta in our proportionality cases could be read to have "urg[ed] that the guidelines should almost always control," thus creating a problem similar to that identified in Gall. Masroor, 313 Mich.App. at 398, 880 N.W.2d 812, citing Milbourn, 435 Mich. at 656, 658, 461 N.W.2d 1; see also Milbourn, 435 Mich. at 659, 461 N.W.2d 1 (stating that departure sentences should "alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme"). We agree that such dicta are inconsistent with the United States Supreme Court's prohibition on presumptions of unreasonableness for out-of-guidelines sentences, see Gall, 552 U.S. at 51, 128 S.Ct. 586, and so we disavow those dicta. We repeat our directive from Lockridge that the guidelines "remain a highly relevant consideration in a trial court's exercise of sentencing discretion" that trial courts "`must consult'" and "`take ... into account when sentencing,'" Lockridge, 498 Mich. at 391, 870 N.W.2d 502, quoting Booker, 543 U.S. at 264, 125 S.Ct. 738, and our holding from Milbourn that "the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range," Milbourn, 435 Mich. at 661, 461 N.W.2d 1.
Regarding the appropriate procedures for review of departure sentences,
Therefore, the purpose for the Crosby remand is not present in cases involving departure sentences. We therefore affirm the Masroor panel's analysis to the extent that it rejected the Steanhouse panel's decision to order a Crosby remand; the panel in Steanhouse should have reviewed the departure sentence for an abuse of discretion, i.e., engaged in reasonableness review for an abuse of discretion informed by the "principle of proportionality" standard. We therefore remand these cases to the Court of Appeals to consider the reasonableness of the defendants' sentences under the standards set forth in this opinion. If the Court of Appeals determines that either trial court has abused its discretion in applying the principle of proportionality by failing to provide adequate reasons for the extent of the departure sentence imposed, it must remand to the trial court for resentencing. See Milbourn, 435 Mich. at 665, 461 N.W.2d 1 (stating that "[i]f and when it is determined that a trial court has pursued the wrong legal standard or abused its judicial discretion according to standards articulated by the appellate courts, it falls to the trial court, on remand, to exercise the discretion according to the appropriate standards"); Smith, 482 Mich. at 304, 754 N.W.2d 284 (noting that "an appellate court cannot conclude that a particular substantial and compelling reason for departure existed when the trial court failed to articulate that reason").
In Docket Nos. 152849 and 152946 through 152948, we reaffirm our holding in Lockridge that the sentencing guidelines are advisory only. We affirm the Court of Appeals' holding in Steanhouse that appellate review of departure sentences for reasonableness requires review of whether the trial court abused its discretion by violating the principle of proportionality set forth in our decision in Milbourn. But we reverse the Court of Appeals to the extent it ordered Crosby remands to the trial courts. In Docket Nos. 152671 and 152871 through 152873, we remand to the Court of Appeals for plenary review of whether the defendants' sentences are reasonable under the standard elucidated in our opinion; in all other respects, leave to appeal is denied because we are not persuaded that the remaining questions presented should be reviewed by this Court.
Wilder, J., took no part in the decision of this case.
Larsen, J. (concurring).
I join the Court's opinion in full but write separately to address the points raised by the dissent. Two terms ago, in People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015), this Court announced two propositions that dramatically altered sentencing law and practice in Michigan. First, compelled by the United States Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), this Court held that Michigan's system of applying mandatory sentencing guidelines was unconstitutional. Lockridge, 498 Mich. at 388-389, 870 N.W.2d 502. Second, as a remedy for that unconstitutionality, the Court "Booker-ize[d]" the Michigan guidelines — which is to say, it adopted the remedy chosen by the United States Supreme Court in United States v. Booker
The Court was clear in Lockridge: the sentencing guidelines were rendered advisory. The dissent is right that some of the language in Lockridge, if read in isolation, could raise a question about the extent of Lockridge's remedial holding. See, e.g., id. at 364, 870 N.W.2d 502 ("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."). But any doubts on this score should have been resolved by the Court's plain statement in Lockridge: "[T]he 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." Id. at 391, 870 N.W.2d 502; see also Id. at 365 n. 1, 870 N.W.2d 502 ("To the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary."); id. at 391, 870 N.W.2d 502 ("[W]e 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 from the applicable guidelines range must articulate a substantial and compelling reason for that departure."); id. ("Like the Supreme Court in Booker, however, we conclude that although the guidelines can no longer be mandatory, they remain a highly relevant consideration in a trial court's exercise of sentencing discretion."); id. ("Accordingly, we sever MCL 769.34(2) to the extent that it is mandatory and strike down the requirement of a `substantial and compelling reason' to depart from the guidelines range in MCL 769.34(3)."); id. at 392, 870 N.W.2d 502 ("Because sentencing courts will hereafter not be bound by the applicable sentencing guidelines range, this remedy cures the
Now, however, the dissent states that "Lockridge was not entirely clear regarding whether the guidelines were always to be advisory or whether they could remain mandatory in limited respects."
The dissent places much emphasis on MCL 8.5 and argues that the effect of this
The remedy adopted in Lockridge two terms ago brought dramatic change to Michigan's criminal sentencing scheme. The dissent draws from Lockridge's jurisprudential youth the conclusion that the decision "has hardly `become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations.'" Post at 34, quoting Robinson v. Detroit, 462 Mich. 439, 466, 613 N.W.2d 307 (2000). It is true, in the run of cases, that a decision two terms old is less likely to have produced substantial real-world effects than one two decades its senior. But not every youngster takes time to make its presence felt. In the two years since Lockridge was decided, this Court and the Court of Appeals have each remanded hundreds of cases for resentencing in light of the guidelines having been rendered advisory,
Against the prospect of this turbulence, we should ask: What is to be gained? When a court decides how to remedy a constitutional violation, it is necessarily operating with uncertainty. As the dissent rightly and repeatedly points out, the task, beyond eliminating the constitutional violation, is to ascertain, as best it can, the will of the Legislature. E.g., post at 10 ("The bottom-line question concerning severability is always one of legislative intentions."). But a court is only approximating the will of the Legislature. The Legislature can tell us its actual will. In Lockridge, this Court decided, as was its duty then, on a remedy
David F. Viviano, J. concurs.
Markman, C.J. (concurring in part and dissenting in part).
In People v. Lockridge, 498 Mich. 358, 364, 870 N.W.2d 502 (2015), this Court held that Michigan's statutory sentencing guidelines were unconstitutional for violating a defendant's Sixth Amendment right to a jury trial; the remedy set forth was to make the guidelines advisory or optional.
This Court possesses the authority to strike down statutes under its power of judicial review only to the extent that they are unconstitutional. The corollary proposition is that to the extent a statute is not unconstitutional — specifically, in this case, to the extent that mandatory application of the guidelines does not violate the Sixth Amendment — this Court lacks the authority to strike down the mandatory application of the guidelines. Because there are multiple alternative remedies that are more consistent with that proposition and more consistent with the Legislature's intentions to impose mandatory guidelines than the majority's "fully advisory" remedy,
The ironic result of the Court's decision today is the effective reversion to the system this state had before the Legislature adopted its statutory sentencing guidelines: a system in which trial courts were unconstrained by guidelines, one that in the Legislature's judgment resulted in overly broad exercises of judicial discretion and often-unjustified disparities in sentencing. See Lockridge, 498 Mich. at 415 n. 8, 462 n. 40, 870 N.W.2d 502 (MARKMAN, J., dissenting). Such a system was overturned in 1998 when the Legislature enacted the mandatory guidelines rejected in their entirety today. As a result, Maximum Mike will once again be empowered to sentence defendants as high as he chooses and Lenient Larry will once again be empowered to sentence defendants as low as he chooses because they will now once again be unconstrained by the legislative reforms implemented to impose a measure of equity from case to case and from judge to judge. As a result, criminal defendants' sentences will once again be more significantly a function of who the sentencing judge is rather than of the gravity of the defendant's conduct and criminal history. Defendants who have committed similar crimes and who have similar criminal histories will be meted out increasingly disparate sentences, just as they were before the enactment of the guidelines.
This undoing of the Legislature's mandatory guidelines system is done in the name of the defendant's jury-trial rights. Whatever the nature of the disagreement I expressed concerning this rationale in Lockridge, what seems inarguable to me is the following. When there is no such constitutional consideration — when even Lockridge acknowledges that there is no issue of defendant's jury-trial rights — what conceivable authority does this Court have to nullify legislative efforts to limit judicial sentencing discretion and thereby seek to render criminal sentences more fair and consistent? We simply have no warrant to return defendants to a sentencing system in which they are subject to a largely unconstrained discretion on the part of individual trial judges when the Legislature has chosen to do otherwise and when there are no constitutional barriers to what the Legislature has chosen to do.
In Lockridge, 498 Mich. at 364, 870 N.W.2d 502, this Court held that the statutory sentencing guidelines violate the Sixth Amendment to "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...." To remedy this asserted constitutional violation, the Court struck down "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," as well as the "requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate
"The powers of government are divided into three branches: legislative, executive and judicial," and "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const. 1963, art. 3, § 2. The Legislature is to exercise the "legislative power" of the state, Const. 1963, art. 4, § 1; the Governor is to exercise the "executive power," Const. 1963, art. 5, § 1; and the judiciary is to exercise the "judicial power," Const. 1963, art. 6, § 1. The "legislative power is the power to make laws." In re Complaint of Rovas Against SBC Mich., 482 Mich. 90, 98, 754 N.W.2d 259 (2008). The "judicial power" is the power to "interpret[] the law...." Id. "In accordance with the constitution's separation of powers, this Court cannot revise, amend, deconstruct, or ignore [the Legislature's] product and still be true to our responsibilities that give our branch only the judicial power." Id. (quotation marks and citation omitted; alteration in original). However, because "the Legislature cannot ... `trump' the Michigan Constitution," Sharp v. Lansing, 464 Mich. 792, 810, 629 N.W.2d 873 (2001), and "it is unquestioned that the judiciary has the power to determine whether a statute violates the constitution," North Ottawa Community Hosp. v. Kieft, 457 Mich. 394, 403 n. 9, 578 N.W.2d 267 (1998), this Court can, of course, strike down statutes to the extent that they are unconstitutional. Nevertheless, as this Court observed in Sears v. Cottrell, 5 Mich. 251, 259 (1858):
That is, this Court only has the authority to strike down statutes to the extent that they are unconstitutional. As the concurring Court of Appeals opinion in People v. Lockridge, 304 Mich.App. 278, 316, 849 N.W.2d 388 (2014) (SHAPIRO, J., concurring), recognized, "when ruling a portion of an act unconstitutional, courts are required, when possible, to invalidate only the portions of the act necessary to allow it to pass constitutional muster." We do not have the authority to strike down statutes
This "separation of powers" principle, i.e., that this Court has the authority to strike down statutes only to the extent that they are unconstitutional, has been codified in MCL 8.5, which provides:
In other words, this Court can strike down statutes only to the extent that they are unconstitutional, and the constitutional portions of the statutes must be "given effect" provided that they are not "inoperable" and not "inconsistent with the manifest intent of the legislature." That is, "by enacting MCL 8.5, the Legislature has informed us that when we sever unconstitutional language, this Court should leave intact all other language, as long as that language is `operable' and not `inconsistent with the manifest intent of the legislature.'" In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich. 295, 349 n. 56, 806 N.W.2d 683 (2011). Indeed, "[t]his Court has long recognized that `[i]t is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be
The bottom-line question concerning severability is always one of legislative intentions. Whenever this Court strikes down any portion of a statute for its lack of constitutionality, we are obviously doing something that is inconsistent with the Legislature's intentions. However, that is the singular circumstance in which we may act incompatibly with the Legislature's intentions (only because that is consistent with the people's intentions when ratifying our Constitution), but in doing so we must ensure that we are only acting incompatibly with the Legislature's intentions to the extent that it is necessary for us to do so, i.e., to the extent required by the Constitution. As this Court has explained:
In other words, when this Court determines that a statute is unconstitutional, it must strike down that statute to the extent it is unconstitutional, but at the same time it must preserve whatever portions are not unconstitutional in a manner most consistent with the Legislature's intentions.
In Lockridge, 498 Mich. at 364, 870 N.W.2d 502, we held that the sentencing guidelines are unconstitutional to "the extent to which [they] 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...." The question in the instant case is whether the majority's remedy of rendering the mandatory guidelines "fully advisory" or "advisory in all applications" constitutes the remedy that is most reasonably consistent with the Legislature's intentions or rather strikes down more of the guidelines than is necessary to render them constitutional. For the following reasons, I believe that the majority strikes down considerably more of the guidelines than is necessary.
In 1983, this Court promulgated judicial sentencing guidelines by administrative order. "However, because the recommended ranges found in the judicial guidelines were not the product of legislative action, a sentencing judge was not necessarily obliged to impose a sentence within those ranges." People v. Hegwood, 465 Mich. 432, 438, 636 N.W.2d 127 (2001). Finally, in 1998, the Legislature enacted statutory sentencing guidelines. MCL 777.1 et seq. Unlike the judicial guidelines, the statutory
Of course, as discussed earlier, anytime this Court strikes down a portion of a statute as unconstitutional, it is doing at least something that is contrary to the Legislature's intentions. Therefore, the appropriate question is whether there are other available remedies that are somewhat less inconsistent with the Legislature's intentions than the majority's "fully advisory" remedy. If there are, then the majority strikes down more of the Legislature's guidelines than is necessary to render them constitutional, which, as discussed, this Court lacks the authority to do. For the reasons that follow, I believe that there are actually multiple alternative remedies that are more consistent with the Legislature's intentions than the "fully advisory" remedy.
In Lockridge, 498 Mich. at 364, 373, 870 N.W.2d 502, this Court held that the
The portion of the guidelines deemed to be unconstitutional and thus invalid in Lockridge was exclusively that portion involving the mandatory floor of the guidelines range. However, MCL 8.5 provides that "such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application...." Therefore, the invalidity of the mandatory floor of the guidelines range "shall not affect" the mandatory ceiling of the guidelines range. "[B]y enacting MCL 8.5, the Legislature has informed us that when we sever unconstitutional language, this Court should leave intact all other language, as long as that language is `operable' and not `inconsistent with the manifest intent of the legislature.'" In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich. at 349 n. 56, 806 N.W.2d 683. It is indeed possible to make the floor of the guidelines range advisory but to retain the ceiling of the guidelines range as mandatory. That is, such an understanding of the guidelines is hardly "inoperable," i.e., it is fully "capable of functioning," Midland Cogeneration Venture Limited Partnership v. Naftaly, 489 Mich. 83, 96, 803 N.W.2d 674 (2011), citing Maki v. East Tawas, 385 Mich. 151, 159, 188 N.W.2d 593 (1971), and the majority does not state otherwise.
This construction of the guidelines is also not "inconsistent with the manifest intent of the legislature." MCL 8.5. First, "there is no indication in the act that the drafters of [the guidelines] intended a different severability rule than MCL 8.5 to apply." In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich. at 346, 806 N.W.2d 683. And second, "it seems clear ... that the Legislature would have passed the statute had it been aware that portions therein would be declared to be invalid and, consequently, excised from the act." Id. (quotation marks and citation omitted). Although the Legislature obviously intended both the bottom and the top of the guidelines range to be mandatory, the question is whether the Legislature would still have adopted the guidelines had it known that it could only make the top of the guidelines
As already discussed, before the Legislature enacted the statutory sentencing guidelines, we had judicial sentencing guidelines. The main difference between these is that the former were only advisory and the latter were mandatory. Therefore, the most obvious and straightforward purpose of the statutory guidelines was to constrain the unchecked discretion of trial courts in such a way as to render criminal sentences across the state, and across courtrooms, less disparate and more fair. See People v. Babcock, 469 Mich. 247, 267 n. 21, 666 N.W.2d 231 (stating that "[t]he Legislature adopted these guidelines intending to reduce unjustified disparities in sentencing," citing 1994 PA 445, § 33(1)(e)(iv), which states that sentencing guidelines shall "[r]educe sentencing disparities based on factors other than offense characteristics and offender characteristics and ensure that offenders with similar offense and offender characteristics receive substantially similar sentences"). The Legislature did this by adopting a scheme in which the trial court was required to sentence defendants within a sentencing range and only allowed to depart either below or above the range if "substantial and compelling" reasons for that specific departure could be articulated. MCL 769.34(3). This would prevent Maximum Mike from sentencing too high or Lenient Larry from sentencing too low. The question is whether, had the Legislature known that it could only prevent Maximum Mike from sentencing too high, it would have still enacted the guidelines. I believe that it would have because retaining the top of the guidelines as mandatory would still to a significant extent render criminal sentences less unjustifiably disparate and more fair by constraining the discretion of trial courts. There would remain some reasonable semblance of a guidelines range — a narrowed but still consequential realm within which the sentencing discretion of judges would be replaced by legislative judgments.
Before the enactment of the statutory sentencing guidelines, there were, from one point of view, essentially two problems: excessively low sentences and excessively high sentences. From this perspective, the question posed in this case is whether, had the Legislature been required to choose between addressing only one of these two problems or addressing neither, what would it have done? I cannot imagine that the Legislature would not have sought to ameliorate at least one of these problems, in particular because to have done so would have done nothing to worsen the other; it simply would have left the other problem unaddressed, just as it had been before the statutory guidelines were enacted in the first place. That is, presumably the Legislature would have preferred to address one of two problems rather than addressing zero of two problems. Moreover, even if one looks at the enactment of the statutory guidelines as addressing only a single larger problem — excessive judicial sentencing discretion and unjustified sentencing disparities — I believe that the Legislature would have chosen to solve the problem to some limited extent rather than to no extent at all.
Perhaps even more significantly, there are almost certainly far more judges within the state judiciary disposed to mete out sentences above rather than below the guidelines range; thus, rendering only the ceilings and not the floors of the guidelines mandatory would solve by far the greatest number of the unjustified sentencing disparities that the Legislature sought to remedy by adopting the guidelines in the
Obviously, the Legislature intended to make both the top and the bottom of the guidelines range mandatory. Then, in Lockridge, we held that making the bottom of the guidelines range mandatory violates the Constitution, and "whenever the Legislature enacts legislation that this Court deems unconstitutional, it is our responsibility to rectify that unconstitutionality, notwithstanding the Legislature's intent," In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich. at 349 n. 56, 806 N.W.2d 683 (emphasis omitted). "The next question for any Court confronted with such a situation is to determine whether the unconstitutional language can be severed from the rest of the act without undermining the act, and in this regard, the Legislature's intent is controlling." Id. (emphasis omitted). For the reasons discussed earlier, I believe that making only the bottom of the guidelines range advisory, which according to Lockridge is constitutionally required, rather than making both the bottom and the top of the guidelines range advisory, which is not constitutionally required, is
While the majority in Lockridge observed that this proposed remedy "is a less disruptive remedy that is fairly closely tailored to the constitutional violation," it still declined to adopt it because "[o]pening 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" and because "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." Lockridge, 498 Mich. at 390, 870 N.W.2d 502.
Concerning the first of the majority's objections, although opening up only one end of the guidelines range would be inconsistent with the Legislature's explicit preference for equal treatment of these ends, opening up both ends of the guidelines range to mere "advisory" application is also inconsistent with the Legislature's expressed preference for mandatory guidelines. And, for the reasons set forth earlier, I believe that the Legislature would clearly have preferred to make only the bottom end of the guidelines range advisory, a system in which judicial discretion would at least be limited on some occasions, rather than to make both the bottom and the top of the guidelines range advisory, a system in which the guidelines would never limit judicial discretion.
Concerning the second of the majority's objections, although this alternative remedy does require the Court to alter more words in the statutes than the majority's approach, I also do not believe that is a particularly relevant consideration in choosing the most appropriate remedy. In determining the appropriate remedy, the dominant factor is not to calculate which remedy requires the Court to alter the fewest number of words in the statute; rather, it is to assess which remedy is the most consistent with the Legislature's intentions. As an illustration, adding the word "not" to a statute that provides that somebody "shall" do something might constitute a minimalist change in regard to the number of words changed; however, it would almost certainly constitute a maximalist change in regard to maintaining consistency with the Legislature's intentions. Largely the same is true in the instant case. Lockridge changed "shall" to "may" across the board because it involved the "least judicial rewriting of the statute...." Id. at 391, 870 N.W.2d 502. However, while changing "shall" to "may" across the board may consume less paper and ink, it is not the remedy most consistent with the Legislature's intentions. Instead, for the reasons earlier stated, changing "shall" to "may" with regards to only the bottom of the guidelines range is more consistent with the Legislature's intentions, whether defined in terms of limiting extreme sentences or in terms of checking judicial discretion and disparate criminal sentencing. It is also more consistent with this Court's authority to strike down statutes only to the extent that they are unconstitutional.
Another alternative remedy represents a slight variation of the first alternative remedy described earlier. Under this remedy, the ceiling of the guidelines would always be mandatory just as in the first remedy, but the floor of the guidelines would also be mandatory, although the floor would have to be determined absent judicial fact-finding. A hypothetical example might be helpful to explain this remedy. If the jury's verdict or defendant's admissions supported a guidelines range of 10-20 months, but the judge-found facts supported a range of 60-100 months, the mandatory guidelines range would be 10-100 months. In other words, the trial court could sentence anywhere within that expanded range without having to articulate substantial and compelling reasons for doing so. This remedy would fully address the constitutional problem because judicial fact-finding would not be used to increase the mandatory floor of the guidelines range, yet it is also more consistent with the intentions of the Legislature than the majority's "fully advisory" remedy because both the bottom and the top of the guidelines would be mandatory.
Still another potential remedy is to render the guidelines advisory when the trial court engages in judicial fact-finding to score OVs that increase the guidelines range, but render the guidelines mandatory when the trial court does not engage in judicial fact-finding to score OVs that increase the guidelines range. Lockridge held that the guidelines are unconstitutional to the extent that they require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score OVs that mandatorily increase the guidelines range. In order to remedy this constitutional defect, Lockridge rendered the guidelines advisory, and now the majority asserts that the guidelines are "fully advisory" or "advisory in all applications." In
Given that mandatory application of the guidelines does not violate the Sixth Amendment when there has been no judicial fact-finding that increases the guidelines range, the majority once again lacks the authority to strike down this mandatory application of the guidelines. The majority asserts that it does possess this authority because a bifurcated mandatory/advisory guidelines system would be "inoperable." It would be "inoperable," contends the majority, because it would be difficult in some cases to determine whether the trial court had engaged in judicial fact-finding or whether the trial court only relied on the defendant's admissions
Alternatively, if we were to hold that trial courts could never score the OVs by using judge-found facts, the guidelines could always be mandatory. In other words, if we required trial courts to rely only on the facts found by the jury beyond a reasonable doubt or admitted by the defendant to score the OVs, the guidelines could continue to be mandatory without violating the Sixth Amendment. This remedy would solve the constitutional problem because there would never be reliance on judicial fact-finding to score the OVs, and it would also be more consistent with the Legislature's intentions than the majority's "fully advisory" remedy because it would allow the guidelines always to be mandatory. It is also an "operable" remedy because it is fully "capable of functioning," Midland Cogeneration, 489 Mich. at 96, 803 N.W.2d 674, and the majority does not dispute this. The trial courts would simply have to score the OVs based on the facts admitted by the defendant or found beyond a reasonable doubt by the jury. While this is certainly an imperfect sentencing approach from the Legislature's perspective, it is also, once more, significantly less imperfect than the majority's "fully advisory" approach.
Finally, this Court could also require juries themselves to find the facts used to score all the OVs that are not admitted by the defendant. This remedy would allow trial courts to more accurately score the OVs and enable the guidelines to always be mandatory. The majority in Lockridge rejected this remedy because it would be "burden[some]." Lockridge, 498 Mich. at 389, 870 N.W.2d 502. However, just because something is "burdensome," does not mean that it is "inoperable." This Court does not have the authority to choose its own remedy over this remedy simply because its remedy is less burdensome when its own remedy is inconsistent with the Legislature's intentions, while this remedy would be consistent with both the Legislature's intentions and the requirements of the Constitution. Jury trials themselves can be described as "burdensome," but if they are constitutionally required, they are constitutionally required.
Because I believe that each of these alternative remedies is more compatible with the Legislature's intentions in enacting
I have already explained why I am not persuaded by the majority's reasons for rejecting these alternatives, but I take this opportunity to reemphasize that under MCL 8.5 there are only two factors that this Court may properly consider in the process of severing that which is unconstitutional from that which is not: (a) "the manifest intent of the legislature" and (b) the operability of the post-severance legislation. Levels of litigation, the need to resolve legal uncertainties, and sundry burdens and procedures imposed on our judicial system simply do not render legislation "inoperable" any more than an automobile is rendered "inoperable" by a cracked window, a malfunctioning air conditioner, or a broken headlight.
I certainly accept that none of these alternatives is perfectly consistent with the Legislature's original intentions, or as coherent and effective in achieving the Legislature's purposes as its chosen system of sentencing. However, that system was struck down in Lockridge, and the question now is only which alternative is next best, not which is altogether equivalent. Since Lockridge has proclaimed that the Legislature's preferred system of sentencing is unconstitutional, some part of its chosen statutory scheme must necessarily be altered. Because the mandatory character of the scheme is, I believe, at the heart of the Legislature's intentions, I would alter that aspect as little as possible, whereas the majority jettisons it in its entirety. And in so doing so, the majority gives short shrift to proposed alternatives that might retain some prospect of accomplishing what the Legislature manifestly sought to achieve: the curtailment of excessive judicial sentencing discretion so that criminal sentencing disparities across the state, across courtrooms, and across judges, might be narrowed.
The majority thus places an almost insurmountable burden on the proposed alternatives to be perfect remedies when they are incapable of being so precisely because the perfect remedy has already been struck down by the Court. Of course, the majority can find something deficient about each of the alternatives that renders it less ideal than what the Legislature began with, but that is merely in the nature of what occurs when the "ideal" has been removed from the discussion. In the end, what has been produced by the majority is a sentencing scheme that is 180 degrees removed from that enacted by the Legislature, a sentencing scheme that does little more than restore the status quo ante already rejected by that Legislature, a sentencing system in which there are no mandatory guidelines, no limits on excessive judicial discretion, no mechanism for fairly and equitably treating equally situated
The majority holds that "finality interests strongly support adherence to our holding in Lockridge," while the concurrence concludes that "stare decisis" requires this Court to adhere to its holding in Lockridge.
First, contrary to the concurrence's contention, Lockridge did not hold with sufficient clarity that it was rendering the guidelines "fully advisory" or "advisory in all applications," hence the very need for an opinion in this case. See, e.g., Lockridge, 498 Mich. at 373-374, 870 N.W.2d 502 ("[T]o the extent that OVs scored on the 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.") (emphasis added); id. at 364, 870 N.W.2d 502 ("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.") (emphasis added); id. at 365, 870 N.W.2d 502 ("[A] guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only.") (emphasis added); id. at 391-392, 870 N.W.2d 502 ("When a defendant's sentence is calculated using a guidelines minimum sentence range in which OVs have been scored on the basis of facts not admitted by the defendant or found beyond a reasonable doubt by the jury, the sentencing court may exercise its discretion to depart from that guidelines range without articulating substantial and compelling reasons for doing so.") (emphasis added). If Lockridge so clearly articulated that the guidelines are "fully advisory" or "advisory in all applications," as the concurrence asserts, (a) why did the prosecutor in this case argue otherwise? (b) why did defendant Steanhouse argue that it is "unclear from Lockridge" whether the guidelines are "advisory in all applications"? (c) why did this Court grant leave to appeal to address this issue? and (d) why is this Court even bothering to write an opinion today purporting to resolve this very issue?
Third, in Lockridge, 498 Mich. at 393, 870 N.W.2d 502, the majority explicitly "[a]ssum[ed] arguendo" that judge-found facts had been "used to increase the defendant's mandatory minimum sentence, violating the Sixth Amendment...." Accordingly, anything stated thereafter regarding the proper remedy in circumstances in which judge-found facts were not used to increase the defendant's mandatory minimum sentence presumably constituted dictum, which is "not binding under the principle of stare decisis." People v. Borchard-Ruhland, 460 Mich. 278, 286 n. 4, 597 N.W.2d 1 (1999).
Fourth, even assuming that Lockridge had clearly held that it was rendering the guidelines "fully advisory," and that this constituted binding precedent, we have long recognized that "[w]hen questions before this Court implicate the Constitution, this Court arguably has an even greater obligation to overrule erroneous precedent." People v. Tanner, 496 Mich. 199, 251, 853 N.W.2d 653 (2014).
Finally, Lockridge was decided a mere two years ago, and thus it has hardly "become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations." Robinson v. Detroit, 462 Mich. 439, 466, 613 N.W.2d 307 (2000).
To respond to the concurrence's inquiry, the following are among the things that might possibly be "gained" as a result of
For the foregoing reasons, I believe that each of the five proposed alternative remedies is significantly more compatible with the Legislature's intentions in enacting mandatory sentencing guidelines than the majority's "fully advisory" remedy, and none of these is "inoperable." While undoubtedly none of these alternatives would likely be viewed as favorably by the Legislature as its own mandatory guidelines, the latter were deemed unconstitutional in Lockridge, and the only question today is whether the Legislature that enacted those guidelines would have preferred as an alternative the majority's "fully advisory" guidelines — effectively no guidelines at all — or an alternative that retains those parts of the guidelines that are indisputably constitutional and that limit excessive judicial sentencing discretion and unjustified sentencing disparities at least in part but not in full — at least in part rather than never. Therefore, I respectfully dissent.
Brian K. Zahra, J.
Finally, to the dissent's Footnote 21 — the dissent asserts that "[i]f it is the `combination' of these two `mandates' that makes the guidelines unconstitutional, removing a single one of these `mandates' presumably would eliminate the constitutional problem." Precisely right. That is exactly what we did in Lockridge by eliminating the mandatory nature of the guidelines. The proposed remedy discussed by the dissent at this point of its opinion — a bifurcated advisory/mandatory system — would not remove one of the mandates; it would have it blink on or off on a case-by-case basis. Again, quite a neat trick, but not one that sufficiently protects the constitutional interest. Similarly, the dissent opines that a bifurcated system would not undervalue the constitutional principle vindicated in Booker because the Booker Court admitted that sentences not based on judicial fact-finding do not violate the Sixth Amendment. Yet this ignores the fact that despite that recognition, the Booker Court nonetheless fully invalidated the federal guidelines scheme. That result certainly suggests that the remedial majority thought the constitutional violation sufficiently egregious that a broad remedy was appropriate.
The dissent's reliance on Tanner is curious because the remedial holding in Lockridge did not "interpret the Constitution." Instead, it rendered the guidelines fully advisory because the Court believed that remedy best effectuated the legislative will. See, e.g., Lockridge, 498 Mich. at 390, 870 N.W.2d 502 ("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."). Once the Sixth Amendment violation in Lockridge was identified, the remedial question was one of legislative intent, a point that the dissent makes repeatedly. E.g., post at 10 ("The bottom-line question concerning severability is always one of legislative intentions."); post at 20 ("In determining the appropriate remedy, the dominant factor is ... to assess which remedy is the most consistent with the Legislature's intentions."); post at 30 ("[W]hen we are forced to engage in the instant process of severance under MCL 8.5, as we are here, we must remember that it is the Legislature's intentions ... to which we are striving to give effect." (emphasis omitted)).
The dissent's conviction that Lockridge erred in its remedial holding seems to have caused the dissent to confuse the constitutional and statutory (or "legislative intent") questions in this case. No legislature could authorize a court to take an unconstitutional action. And so, if "striking down a greater part of the guidelines than was necessary to remedy the Sixth Amendment violation" were itself unconstitutional, then whether to do just that (the Lockridge majority's remedy), or instead to retain as much as was constitutional (the dissent's preferred remedy), would not be a question of legislative will but of constitutional law. And it should go without saying that even if the majority misconstrued that will as expressed in a statute, MCL 8.5, that would be a problem of statutory, not constitutional, construction.
If the Lockridge remedy were based on this Court's construction of the Constitution, the Legislature would be powerless to alter our course. But, as the dissent and I agree, it is not. The Legislature remains at liberty to correct us in any way that does not contravene Lockridge's only constitutional holding: that the application of Michigan's mandatory guidelines to increase sentencing ranges based on facts not found by a jury violated the Sixth Amendment. Accord post at 37 n. 30 ("It should clearly be understood by our Legislature that, notwithstanding that aspects of its guidelines have been struck down by the Court, it retains the constitutional authority to restore such aspects to the law of this state that are not incompatible with Lockridge.").
Appellate defense counsel for Steanhouse also made this point at oral argument, stating, "What this Court chose, not only, in a sense — you know, I don't want to be disrespectful, but — mocked the legislature, because you chose to go back to the very system that they had chosen deliberately to abandon."
Similarly, the majority contends that "[s]uch an approach certainly seems to at least undervalue the constitutional principle on which Booker was decided." However, given that Booker, 543 U.S. at 267, 125 S.Ct. 738, held in the companion case regarding defendant Ducan Fanfan that a "sentence ... authorized by the jury's verdict," i.e., one not based on judicial fact-finding, "does not violate the Sixth Amendment," I fail to see how this approach in any way "undervalue[s]" any such constitutional principle. See also Lockridge, 498 Mich. at 394-395, 870 N.W.2d 502, in which this Court held that in "cases in which (1) facts admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum number of OV points necessary for the defendant's score to fall in the cell of the sentencing grid under which he or she was sentenced," i.e., judicial fact-finding did not increase the defendant's guidelines range, "the defendant suffered no prejudice from any error...."
Finally, the majority contends that "by delaying a determination of the guidelines' mandatory or advisory nature until sentencing, the proposed system would give no weight to the notice interests protected by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny." Although under the majority's "fully advisory" system defendants will indeed know from the outset that the trial court will not be bound to sentence within the guidelines range, whereas under the bifurcated system, defendants will not know until sentencing whether the trial court will or will not be bound to sentence within the range because that will depend on whether judge-found facts increase the guidelines range, I suspect that most defendants will prefer this lack of notice over knowing from the outset that the trial court will be unrestrained by the top end of the guidelines range at sentencing. In other words, just as I believe the Legislature would prefer to have the guidelines be mandatory in at least some circumstances rather than never, I believe that defendants would likewise prefer to have the guidelines be mandatory in at least some circumstances rather than never, even if this means that defendants will not know until sentencing whether the guidelines are to be mandatory or advisory. To make clear, I do not view this approach to be ideal; I note merely that among the options remaining following the Court's decision in Lockridge, it is more consistent with the Legislature's intentions than the majority's approach, and it is constitutional.
