PEOPLE OF MI V CHARLES WILLIAM PARKER IIIAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
July 7, 2005
Macomb Circuit Court
LC No. 01-002833-FH
CHARLES WILLIAM PARKER, III,
Official Reported Version
Before: Talbot, P.J., Whitbeck, C.J., and Jansen, J.
Defendant Charles William Parker III appeals by delayed leave granted his sentence
following his plea of guilty of a probation violation. Parker was originally convicted of
receiving and concealing stolen property with a value equal to or greater than $1,000 but less
than $20,000,1 and operating a motor vehicle while under the influence of intoxicating liquor
(OUIL).2 Following the violation, the trial court sentenced Parker to two to five years'
imprisonment on each of his original convictions. We reverse and remand for resentencing. We
decide this case without oral argument pursuant to MCR 7.214(E).
I. Basic Facts And Procedural History
In November 2001, Parker pleaded guilty to one count each of receiving and concealing
property with a value equaling or greater than $1,000 but less than $20,000 and OUIL. The trial
court sentenced Parker to two years' probation on the stolen property charge, with the nine
months to be served in jail and credit for one hundred days. On the OUIL charge, the trial court
sentenced Parker to ninety days in jail, and his driver's license was suspended for one year. The
trial court did not sentence Parker to probation on the OUIL charge.
On August 15, 2002, a bench warrant was issued for Parker. The bench warrant petition
indicated that Parker had "involved himself in a new violation of law," breaking and entering a
vehicle and causing damage.3 On August 22, 2002, the trial court accepted Parker's guilty plea.4
On September 25, 2002, the trial court sentenced Parker to two to five years' imprisonment, with
credit for 199 days, for each of the charges he pleaded guilty to in 2001. Parker did not, at that
time, raise the issue of the applicability of the legislative sentencing guidelines.
In December 2002, Parker moved for resentencing, pursuant to MCR 6.429(B)(3), and
for entry of a corrected presentence investigation report (PSIR). Parker argued that resentencing
was necessary because his sentence did not comply with the legislative sentencing guidelines.5
Also, Parker sought entry of a corrected PSIR to reflect the correct recommendation on the OUIL
charge and Parker's proper jail credit. Following a hearing, the trial court denied resentencing,
but granted correction of the PSIR, except for the jail credit. We granted Parker's delayed
application for leave to appeal.
II. Application Of The Legislative Sentencing Guidelines
(1) The Judicial Sentencing Guidelines
As noted in People v Hendrick,6 sentencing guidelines did not exist in Michigan before
1983. Trial courts therefore sentenced convicted offenders to a period within the statutory
minimums and maximums for any given offense. In 1983, the Michigan Supreme Court
developed a set of judicial sentencing guidelines. Importantly, these judicial sentencing
guidelines were not applicable to a wide variety of offenses, including sentences imposed after
probation violations.7 Had the judicial sentencing guidelines been in place when the trial court
sentenced Parker for violating his probation, those sentencing guidelines would not have been
applicable to that sentence, and Parker would have been unable to assert that the sentence the
trial court imposed violated those judicial sentencing guidelines.
(2) The Legislative Sentencing Guidelines
Again as noted in Hendrick, in 1998 the Legislature enacted legislative sentencing
guidelines that apply to certain enumerated felonies committed on or after January 1, 1999.8 The
question presented in Hendrick was whether the legislative sentencing guidelines apply to
The charge or charges to which Parker pleaded guilty are unclear from the disposition
document, but we assume from the circumstances of the case that Parker pleaded guilty of
violating his probation.
MCL 777.1 et seq.
People v Hendrick, 261 Mich App 673, 676-677; 683 NW2d 218 (2004), aff 'd in part and rev'd
in part 472 Mich 555 (2005).
Id. at 677, citing People v Cotton, 209 Mich App 82, 83-84; 530 NW 2d 495 (1995).
Hendrick, supra at 677, citing MCL 777.1 et seq. and MCL 769.34(2).
sentences imposed after a probation violation.9 The trial court had held that they did not.10 The
Hendrick panel reversed, holding that the statutory legislative guidelines apply to sentences
imposed after a probation violation,11 stating:
Because defendant committed the felonies for which he was sentenced
after January 1, 1999, and the felonies were specifically identified as felonies
subject to the legislative sentencing guidelines, the guidelines apply to sentencing
following his probation violation. The language of MCL 769.34(2) is very clear
and no exception to this legislative directive is found anywhere else in the
legislative sentencing guidelines or the Code of Criminal Procedure. Thus, the
legislative sentencing guidelines apply to all enumerated felonies committed on or
after January 1, 1999, regardless of whether the sentence is imposed after a
The Michigan Supreme Court affirmed this holding, specifically agreeing that "the language of
MCL 769.34(2) is clear and lists no exceptions."13
(3) Issue Presented
There is no question that Parker committed the offenses for which he was originally
convicted after January 1, 1999, and that the trial court sentenced him for his later probation
violation after January 1, 1999. Therefore, the legislative sentencing guidelines clearly applied.
However, the trial court sentenced Parker in late 2002, well before May of 2004 when this Court
decided in Hendrick that the legislative sentencing guidelines applied to sentences imposed after
a probation violation if the underlying crimes were committed after January 1, 1999. We must
therefore decide whether this Court's decision in Hendrick applies retroactively.
B. Preservation of the Issue
As noted, Parker did not object at sentencing to the trial court's failure to apply the
legislative sentencing guidelines, but he did raise the issue in a proper motion for resentencing.
A recent decision by this Court establishes that raising a challenge to the application of the
sentencing guidelines for the first time in a motion for resentencing is adequate to preserve the
issue for appellate review. In People v Mack,14 the defendant was convicted of one count of
third-degree criminal sexual conduct (CSC III) and one count of assault with intent to commit
Hendrick, supra at 675.
Id. at 676.
Id. at 675.
Id. at 679-680.
People v Hendrick, 472 Mich 555, 560; 697 NW2d 511 (2005).
People v Mack, 265 Mich App 122; 695 NW2d 342 (2005).
criminal sexual conduct involving penetration (AWICSC).15 Following the convictions, the
probation department prepared a PSIR that calculated a guidelines range for the CSC III count;
however, the department failed to prepare a PSIR for the AWICSC count.16 When the trial court
sentenced the defendant to fifteen to thirty years' imprisonment for the AWICSC count, he failed
to object at sentencing on the grounds that the sentence was outside the appropriate guidelines
range for his AWICSC conviction.17 Nevertheless, the defendant filed a timely motion for
resentencing on the grounds that the trial court erred by sentencing him outside the appropriate
guidelines range for his AWICSC conviction.18
For guidance regarding whether this issue was preserved, the Mack panel looked to the
Michigan Supreme Court's opinion in People v Kimble.19 In Kimble, the Court held that
"pursuant to [MCL 769.34(10)], a sentence that is outside the appropriate guidelines sentence
range, for whatever reason, is appealable regardless of whether the issue was raised at
sentencing, in a motion for resentencing, or in a motion to remand."20 The Mack panel
concluded that, because the defendant had raised the issue in a motion for resentencing, it should
be considered preserved, despite the defendant's failure to raise the issue at sentencing.21
Like the defendant in Mack, Parker contends that the legislative sentencing guidelines
applied at his sentencing and that his sentence constituted an improper departure from those
guidelines. Additionally, like the defendant in Mack, Parker made a proper motion for
resentencing on this ground. These similarities indicate that Parker, by virtue of his proper
motion for resentencing, preserved for appeal the issue of the trial court's failure to apply the
C. The Retroactivity Of Hendrick
Id. at 123.
Id. at 124.
Id. at 124-126.
People v Kimble, 470 Mich 305; 684 NW2d 669 (2004).
Id. at 310 (emphasis supplied).
Mack, supra at 126.
There is the view that Parker was required to raise this issue at sentencing for this Court to
consider it. However, this position appears irreconcilable not only with this Court's position in
Mack, but also with the Michigan Supreme Court's holding in Kimble, which states that a
defendant may appeal a sentence outside the guidelines range even if it was not preserved. See
Kimble, supra at 310. We take this portion of Kimble to mean that this Court must review a
sentence that falls outside the legislative sentencing guidelines; the only question is whether it
should be reviewed under the standard for preserved or unpreserved error. See People v Carines,
460 Mich 750, 761-64, 774; 597 NW2d 130 (1999) (unpreserved issues are reviewed for plain
error that affects a defendant's substantial rights).
There is, however, a factor that clearly distinguishes Mack from this case. The legislative
sentencing guidelines in Mack, as a matter of law, were applicable to the defendant's conviction
at the time he was sentenced. Here, this Court's decision in Hendrick requiring sentencing courts
to apply the legislative sentencing guidelines to probation violations was over a year away when
the trial court sentenced Parker. We must therefore to evaluate the degree to which this Court's
holding in Hendrick was foreseeable at the time the trial court sentenced Parker for his
probation violation. This question presents an issue of law subject to review de novo.23
Generally, this Court's decisions are fully retroactive.24
However, there are
circumstances in which the decisions should only be applied prospectively. With respect to
criminal matters, both the United States Supreme Court and the Michigan Supreme Court
consider three factors to determine whether a law should be applied retroactively or
prospectively: "(1) the purpose of the new rule, (2) the general reliance on the old rule, and (3)
the effect on the administration of justice."25 Before applying these factors, however, the
decision in question must satisfy a threshold criterion: namely, that "the decision clearly
establish[es] a new principle of law[.]"26 More specifically, as the Michigan Supreme Court
stated in Lindsey v Harper Hosp, "[p]rospective application of a holding is appropriate when the
holding overrules settled precedent or decides an '"issue of first impression whose resolution was
not clearly foreshadowed."'"27
While it was settled precedent that the judicial sentencing guidelines were not applicable
to sentences imposed after probation violations,28 the guidelines at issue here are the statutory
sentencing guidelines. Thus, the "settled precedent" exception does not apply. This Court must
therefore determine whether the Hendrick panel "decide[d] an '"issue of first impression whose
resolution was not clearly foreshadowed."'"29
Hendrick was the first published decision of this Court to conclude that the legislative
sentencing guidelines applied to sentences for probation violations, thus making it an issue of
first impression. However, not all issues of first impression are limited to prospective
See People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998).
Adams v Dep't of Transportation, 253 Mich App 431, 435; 655 NW2d 625 (2002).
Lincoln v Gen Motors Corp, 231 Mich App 262, 309; 586 NW2d 241 (1998) (Whitbeck, P.J.,
concurring), citing Tehan v United States ex rel Shott, 382 US 406; 86 S Ct 459; 15 L Ed 2d 453
(1966), Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), People v
Hampton, 384 Mich 669, 674-679; 187 NW2d 404 (1971), Sexton, supra at 57 n 29, and People
v Markham, 397 Mich 530, 534-535; 245 NW2d 41 (1976).
Lincoln, supra at 310 (Whitbeck, P.J., concurring).
Lindsey v Harper Hosp, 455 Mich 56, 68; 564 NW2d 861 (1997), quoting People v Phillips,
416 Mich 63, 68; 330 NW2d 366 (1982), quoting Chevron Oil Co v Huson, 404 US 97, 106; 92
S Ct 349; 30 L Ed 2d 296 (1971).
Cotton, supra at 83-84.
Lindsey, supra at 68 (citations omitted).
application, only those "whose resolution was not clearly foreshadowed."30 Our reading of
Hendrick indicates that the pertinent rule that emerged was clearly foreshadowed by the
legislative sentencing guidelines themselves. The Hendrick panel found that the guidelines
contain "no conflict or ambiguity requiring statutory construction" because the language of MCL
769.34(2) is "very clear" that the legislative guidelines must apply to sentencing for the
enumerated felonies following a probation violation.31 Similarly, the Michigan Supreme Court
agreed that "the language of MCL 769.34(2) is clear and lists no exceptions."32
Considering the ease with which this Court reached its ruling in Hendrick, the absolute
clarity of that ruling, and the consensus of this Court and the Michigan Supreme Court that the
language of MCL 769.34(2) clearly compelled the result, we conclude that the language in MCL
769.34(2) and MCL 771.4 clearly foreshadowed the ruling in Hendrick.33 Therefore, the trial
court here should have been able to foresee this Court's decision to mandate the use of the
legislative sentencing guidelines in determining sentences following probation violations. For
that reason, under Adams and Lindsey, Hendrick applies retroactively.
D. Applying Hendrick
Our conclusion that Hendrick applies retroactively compels the corollary conclusion that
the trial court erred in failing to apply the legislative sentencing guidelines. As a result of its
failure to apply the guidelines, the trial court gave Parker a sentence that departed from the
guidelines without fulfilling its statutory obligation to state a substantial and compelling reason
for that departure.34 Even if our review of the record revealed that, in our judgment, a substantial
and compelling reason for departure existed, we cannot affirm Parker's sentence on that basis.35
Instead, we "must remand the case to the trial court for resentencing or rearticulation."36
We note that Parker has served his minimum sentence and was paroled on March 9,
2004. However, we conclude that this appeal is not moot because Parker is scheduled to remain
on parole until March 15, 2006, which imposes some continuing limitations on his freedom. Had
Parker received an intermediate sanction, as he contends he should have, he might not be subject
to any limitations at all. Because we are remanding for resentencing, we need not address
Id. (citations and internal quotation marks omitted).
Hendrick, supra, 261 Mich App at 679 (emphasis supplied).
Hendrick, supra, 472 Mich at 560.
Hendrick, supra, 261 Mich App at 679-681.
See 769.34(3); People v Babcock, 469 Mich 247, 258; 666 NW2d 231 (2003).
Id. at 258-259.
Id. at 259.
Parker's claim that double jeopardy was violated by not sentencing him under the legislative
Reversed and remanded for resentencing under the legislative sentencing guidelines. We
do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ William C. Whitbeck
/s/ Kathleen Jansen
See People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001); People v Rutledge, 250 Mich
App 1, 11; 645 NW2d 333 (2002).