PEOPLE OF MI V ROBERT SINISHTAJ
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 26, 2004
Plaintiff-Appellant,
v
No. 240705
Oakland Circuit Court
LC No. 99-168698-FH
ROBERT SINISHTAJ,
Defendant-Appellee.
Before: Cavanagh, P.J., and Fitzgerald and Meter, JJ.
PER CURIAM.
Defendant was placed on lifetime probation after pleading guilty to a charge of delivery
or manufacture of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv), an offense that
occurred on September 11, 1999. On August 14, 2001, defendant pleaded guilty to a new charge
of delivering less than fifty grams of a controlled substance. On January 10, 2002, defendant
pleaded guilty of probation violation as a result of the August 14 plea1 and was sentenced on
January 24, 2002, to a prison term of four months to twenty years. The prosecutor appeals by
leave granted, challenging the sentence imposed. We affirm.2
The prosecutor argues that when sentencing defendant for the probation violation the trial
court was required by MCL 333.7401(2)(a)(iv) to impose a mandatory minimum sentence of one
year. Issues of statutory construction present questions of law that are reviewed de novo. Cruz v
State Farm Mutual Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002).
At the time defendant committed the underlying drug offense, MCL 333.7401(2)(a)(iv)
provided that a person found guilty of delivery or manufacture of less than fifty grams of cocaine
1
Defendant also admitted that he violated his probation by turning in “a couple of dirty urine
samples,” failing to report to a class as required, and failing to obtain substance abuse treatment.
2
Defendant’s four-month sentence was consecutive to a one- to thirty-year sentence, and
defendant was discharged from the jurisdiction of the Department of Corrections on September
2, 2004. This appeal is therefore moot because this Court cannot fashion a remedy. See People
v Green, 260 Mich App 392, 414; 677 NW2d 363 (2004). However, because the issue raised is
capable of repetition while evading appellate review, it is appropriate that it be addressed.
Franciosi v Parole Bd, 461 Mich 347, 348; 604 NW2d 675 (2000).
-1-
“shall be imprisoned for not less than 1 year nor more than 20 years, and may be fined not more
than $25,000, or placed on probation for life.”3 MCL 333.7401(4) authorized a departure from
the mandatory one-year minimum sentence “if the court finds on the record that there are
substantial and compelling reasons to do so.” However, MCL 769.34(4)(b)4 of the legislative
sentencing guidelines provided strict guidance for the very crime defendant committed:
If the offense is a violation of sections 7401(2)(a)(iv) or 7403(2)(a)(iv) of
the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and the upper
limit of the recommended minimum sentence range is 18 months or less, the court
shall impose a sentence of life probation absent a departure.
MCL 771.4 provides in pertinent part:
If a probation order is revoked, the court may sentence the probationer in
the same manner and to the same penalty as the court might have done if the
probation order had never been made.
Under MCL 771.4, a trial court can continue probation when sentencing a defendant for a
probation violation. However, if the trial court revokes probation and resentences the defendant,
the legislative sentencing guidelines control. People v Hendrick, 261 Mich App 673; 683 NW2d
218 (2004). Specifically, the Hendrick Court stated:
As used in MCL 771.4, “may” indicates that the trial court has the
discretion and authority to resentence the probationer after revoking his probation.
Thus, the court may continue or extend probation, or the court may revoke
probation and sentence “the probationer in the same manner and to the same
penalty as the court might have done if the probation order had never been made.”
MCL 771.4. Use of the permissive term “may” when describing the trial court’s
authority to resentence a probationer after revoking his probation does not excuse
the trial court from complying with the Legislature’s mandate in MCL 769.34(2)
that the court must impose a sentence within the guidelines when the crime was
committed on or after January 1, 1999. MCL 771.4 provides the trial court with
the discretion to either continue probation or revoke probation and resentence the
probationer. If the court elects to revoke probation and resentence the
probationer, MCL 771.4 expressly requires the court to impose a sentence that
was available at the time of the initial sentencing. If the underlying crime was an
enumerated felony that was committed on or after January 1, 1999, the sentence
that was available at the time of the initial sentencing was one that was governed
by the legislative guidelines. [Hendrick, supra at 680-681.]
3
MCL 333.7401(2)(a)(iv) was amended by 2002 PA 665 to delete the mandatory one-year
minimum sentence for delivery of less than fifty grams of cocaine. The statute now provides that
the sentence will be for not more than 20 years, or a fine of not more than $25,000, or both.
4
MCL 769.34(4)(b) was deleted by 2002 PA 666.
-2-
Following the probation violation the sentence imposed should be based on the original
scoring for the underlying offense. Hendrick, supra at 681 n 5. The score defendant originally
received placed him within a zero to eleven month sentencing range. Under MCL 771.4,
defendant was to be sentenced following the probation violation “in the same manner and to the
same penalty as the court might have done if the probation order had never been made.” Thus,
under MCL 769.34(4)(b), the trial court was required to sentence defendant to a sentence of
lifetime probation absent a departure because the sentencing range was less than eighteen
months.5 Defendant was therefore entitled to a sentence of lifetime probation absent a departure.
The prosecutor’s contention that the sentence imposed was a downward departure from the
mandatory one-year minimum sentence contemplated by MCL 333.7401(2)(a)(iv) is misplaced6,
and the requested relief of remand for entry of a mandatory sentence of one year is not indicated.
While at first glance this result may seem illogical in that a trial court that revokes probation is
required to again impose a sentence of lifetime probation under MCL 769.34(4)(b), the result is
not illogical because MCL 771.4 allows for a resentence of lifetime probation and
subsection 34(4)(b) authorizes a departure from lifetime probation. Departures are authorized
under subsection 7401(2)(a)(iv) “if the court finds on the record that there are substantial and
compelling reasons to do so.”
Affirmed.
/s/ Mark J. Cavanagh
/s/ E. Thomas Fitzgerald
5
It does not appear that the trial court was thinking in terms of an upward departure at the time it
imposed the sentence. The court rejected the probation agent’s recommendation of a minimum
term of one year as “too much,” noting in part that “we’re not talking about a substantial amount
of cocaine [approximately four grams].”
6
Had defendant cross-appealed, he would have been entitled to resentencing to another term of
lifetime probation absent a departure; however, an upward departure from lifetime probation to
four months’ incarceration would likely have been viewed as justified based on the probation
violation. See Hendrick, supra at 683.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
