PEOPLE OF MI V EARL LEVI DIXON JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 5, 2009
Plaintiff-Appellee,
v
No. 282134
Gogebic Circuit Court
LC No. 07-000021-FH
EARL LEVI DIXON, JR.,
Defendant-Appellant.
Before: Saad, C.J., and Davis and Servitto, JJ.
PER CURIAM.
Defendant appeals his plea-based conviction of attempted possession of a weapon by a
prisoner, MCL 800.283(4) and MCL 750.92. The trial court sentenced defendant to 12 months
to 30 months in prison. This Court denied defendant’s delayed application for leave to appeal,
but our Supreme Court remanded the case to this Court for expedited consideration in light of
People v Muttscheler, 481 Mich 372; 750 NW2d 159 (2008). We reverse and remand.
In Muttscheler, the defendant, a prison inmate, was found to have a crude weapon in his
cell. The defendant plead guilty to attempted possession of a weapon by a prisoner and the
prosecutor agreed to the imposition of a sentence within the applicable sentencing guidelines
range. Although defendant’s recommended minimum sentence range under the guidelines was 5
to 17 months, the trial court sentenced him to 12 to 30 months in prison. On appeal, our
Supreme Court reviewed MCL 769.34(4)(a), which provides:
If the upper limit of the recommended minimum sentence range for a defendant
determined under the sentencing guidelines set forth in chapter XVII is 18 months
or less, the court shall impose an intermediate sanction unless the court states on
the record a substantial and compelling reason to sentence the individual to the
jurisdiction of the department of corrections. An intermediate sanction may
include a jail term that does not exceed the upper limit of the recommended
minimum sentence range or 12 months, whichever is less.
Noting that a prison sentence is not an intermediate sanction under the above statute, our
Supreme Court held, “[b]ecause the parties here agreed to a sentence within the guidelines, the
trial court violated the agreement not only by sentencing defendant to prison, but also by
imposing an indeterminate sentence, under which defendant could be imprisoned for longer than
the 12-month maximum allowed by the intermediate-sanction statute.”
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Similarly, in the present matter, defendant’s plea agreement required the prosecutor to
recommend a sentence within the legislative sentencing guidelines.
The trial court
acknowledged that the guidelines range was two to 17 months, and then sentenced defendant to
12 to 30 months in prison. The prison sentence imposed by the trial court was an upward
departure from the guidelines under Muttscheler (the defendant being required to serve it in
prison, rather than in jail) and the trial court articulated no substantial and compelling reasons for
the departure. Remand is thus necessary.
In light of resolution of this issue, we need not address defendant’s claim of ineffective
assistance of counsel. We note, however, that counsel’s performance did not fall “below an
objective standard of reasonableness.” Strickland v Washington, 466 US 668, 688; 104 S Ct
2052; 80 L Ed 2d 674 (1984).
Reversed and remanded for resentencing consistent with the requirements in Muttscheler.
We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Deborah A. Servitto
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