PEOPLE OF MI V ROBERT SINISHTAJ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 26, 2004
Plaintiff-Appellee,
v
No. 240705
Oakland Circuit Court
LC No. 99-168698-FH
ROBERT SINISHTAJ,
Defendant-Appellee.
Before: Cavanagh, P.J., and Fitzgerald and Meter, JJ.
METER, J. (concurring).
I concur in the majority’s result but write separately to set forth my reasons for doing so
and to emphasize the impact of the Hendrick decision on the instant case.
At the time defendant committed the underlying offense, MCL 333.7401(2)(a)(iv)1
provided that a person delivering or manufacturing less than fifty grams of cocaine “shall be
imprisoned for not less than 1 year nor more than 20 years, and may be fined not more than
$25,000.00, or placed on probation for life.” The dissenting judge in People v Sanchez, 205
Mich App 63, 65-66; 517 NW2d 259 (1994), indicated that this “disjunctive phrase on its face
indicates that lifetime probation is an alternative to the fine and imprisonment portion of the
above provision.” The Supreme Court adopted the Sanchez dissent in People v Martinez, 448
Mich 869; 530 NW2d 748 (1995).
Therefore, the sentence for a person violating former MCL 333.7401(2)(a)(iv) was to
consist of (1) lifetime probation, (2) a prison term with a minimum of one year (with a possible
fine), or (3) a lesser sanction, provided that the court provided substantial and compelling
reasons, under former MCL 333.7401(4), for the lesser sanction. However, former MCL
769.34(4)(b)2 stated, in part, that if an “offense is a violation of [MCL 333.7401(2)(a)(iv)] and
the upper limit of the recommended minimum sentence range is 18 months or less, the court
1
This statute was also in effect at the time of defendant’s original sentencing for the underlying
offense and at the time he was sentenced for the probation violation.
2
This statute was in effect at the time of defendant’s offense, at the time of his original
sentencing, and at the time of his sentencing for the probation violation.
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shall impose a sentence of life probation absent a departure.” Therefore, given defendant’s
sentencing guidelines range of zero to eleven months, the court was required, in the absence of
reasons for a departure, to impose a sentence of lifetime probation on defendant at the time of his
original sentence.
As noted by the majority, People v Hendrick (On Remand), 261 Mich App 673, 681; 683
NW2d (2004), held that if a trial court chooses to resentence a defendant after a probation
violation, the sentence must be the “sentence that was available at the time of the initial
sentencing.” Therefore, the court, in resentencing defendant after the probation violation, was
once again required to impose a sentence of lifetime probation on defendant.
I note that this seemingly implausible result is compelled solely by the Hendrick Court’s
conclusion that “[t]he legislative sentencing guidelines apply to sentences imposed after a
probation revocation.” Id. at 684. If Hendrick had not reached this conclusion, then former
MCL 769.34(4)(b), which derived its import solely from the sentencing guidelines, would not
apply. Instead, the Court, no longer bound by the strictures of the sentencing guidelines, would
have been free to sentence defendant to imprisonment in accordance with MCL
333.7401(2)(a)(iv). In the absence of Hendrick, I would have simply remanded this case for an
articulation regarding whether the court, in imposing the four-month-to-twenty-year sentence,
found substantial and compelling reasons (under former MCL 333.7401[4]) to depart from the
one-year minimum in former MCL 333.7401(2)(a)(iv).
Given the case law as it presently stands, I concur in the majority’s result.
/s/ Patrick M. Meter
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