PEOPLE OF MI V DARIN HENDRICK
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILES JUNE 14, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126371
DARIN HENDRICK,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
In
this
case,
we
consider
whether
the
legislative
sentencing guidelines apply to sentences imposed after a
probation violation and whether a defendant’s conduct while
on
probation
compelling
can
be
reason
considered
for
as
departure
a
from
substantial
the
and
legislative
sentencing guidelines.
The legislative sentencing guidelines apply to certain
enumerated felonies committed on or after January 1, 1999.
MCL
777.1
et
seq.;
MCL
769.34(2) is very clear.
the
legislative
769.34(2).
The
language
It lists no exceptions.
guidelines
would
apply
to
of
MCL
Thus,
defendant’s
sentence, even if the sentence follows the imposition and
revocation of probation.
Further,
MCL
771.4
states
that
if
probation
is
revoked, the court may sentence the probationer to the same
penalty as if probation had never been granted, but does
not require that the same penalty be imposed.
Thus, the
sentencing court is not precluded from considering events
surrounding
the
probation
violation
when
sentencing
the
defendant on the original offense.
The
Court
Appeals1
of
correctly
held
that
the
sentencing guidelines apply to sentences imposed after a
probation
violation
and
probation
violation
compelling
reasons
that
may
to
acts
giving
constitute
depart
from
rise
to
the
substantial
the
and
guidelines.
It
incorrectly held that the acts giving rise to the probation
violation
in
this
case
connection
with
variables.
We thus affirm in part and reverse in part the
the
were
prior
already
record
considered
variables
and
in
offense
judgment of the Court of Appeals, vacate the sentence, and
remand this case to the trial court for resentencing.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
On
March
20,
2000,
defendant
pleaded
guilty
to
a
charge of attempted first-degree home invasion, MCL 750.92;
1
261 Mich App 673; 683 NW2d 218 (2004).
2
MCL
750.110a(2).
Defendant
was
sentenced
to
a
five-year
term of probation, with the first year to be served in
jail.
On April 9, 2001, defendant pleaded guilty to a
charge of possession of a Molotov cocktail, MCL 750.211a.
The trial court again sentenced him to a five-year term of
probation, with the first year to be served in jail.
July
23,
2001,
violating
the
defendant
terms
of
was
his
arrested
probation
yet
by
again
On
possessing
for
a
shotgun while walking on a public street.
On
August
23,
2001,
the
trial
court
revoked
defendant’s two probationary sentences and sentenced him to
one to five years of imprisonment for the attempted home
invasion
and
ten
a
to
possession
of
sentencing
guidelines
twenty
Molotov
years
of
cocktail.
range
for
the
imprisonment
The
for
legislative
Molotov
cocktail
conviction was twelve to forty-eight months in prison, thus
making defendant’s ten-year minimum sentence a departure if
the guidelines applied.
The trial court, however, did not
believe that the guidelines applied to sentences imposed
after probation violation.
Accordingly, it did not apply
the guidelines in determining defendant’s sentence.
The Court of Appeals denied leave to appeal.
In lieu
of granting leave to appeal, we remanded this case to the
Court of Appeals for consideration as on leave granted and
directed
it
to
consider
(1)
3
whether
the
legislative
sentencing guidelines apply to sentences imposed after a
probation violation, and (2) if not, whether a sentencing
court
may
consider
the
principles
of
proportionality
discussed in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990).2
The
Court
of
Appeals
held
that
the
legislative
sentencing guidelines were indeed applicable to sentences
imposed
noted
after
that
causing
probation
in
the
“substantial
departure.
“exceptional
probation
and
The
revocation.
Court
cases,”
revocation
compelling”
of
The
the
constitute
for
however,
further
circumstances
could
reason
Appeals,
panel
an
a
upward
remanded
for
resentencing, concluding that the reasons articulated by
the trial court were not “substantial and compelling.”
The prosecutor sought leave to appeal, contending that
the
legislative
sentences
imposed
sentencing
after
a
guidelines
probation
do
not
violation.
apply
In
to
the
alternative, the prosecution argued that if the guidelines
were
applicable,
the
conduct
constituting
the
probation
violation provided an automatic substantial and compelling
reason for departure from the guidelines.
2
468 Mich 918 (2003).
4
We granted the prosecution’s application for leave to
appeal.3
II. STANDARD OF REVIEW
Whether the legislative sentencing guidelines apply to
sentences imposed after probation revocation is a question
of law that we review de novo. People v Rodriguez, 463 Mich
466, 471; 620 NW2d 13 (2000).
Similarly, whether conduct
resulting in the revocation of probation may constitute a
“substantial and compelling” reason for an upward departure
from
the
legislative
sentencing
guidelines
question of law subject to review de novo.
is
also
a
Id.
III. ANALYSIS
A. The legislative sentencing guidelines apply to sentences
imposed after probation revocation.
The legislative sentencing guidelines apply to certain
enumerated felonies committed on or after January 1, 1999.
MCL 777.1 et seq.; MCL 769.34(2).4
It is undisputed that
the guidelines apply to the felonies defendant committed in
this case—possession of a Molotov cocktail and attempted
3
471 Mich 914 (2004).
4
MCL 769.34(2) provides, in relevant part, that “the
minimum sentence imposed by a court of this state for a
felony enumerated in part 2 of chapter XVII committed on or
after January 1, 1999 shall be within the appropriate
sentence range under the version of those sentencing
guidelines in effect on the date the crime was committed.”
5
home
invasion.
underlying
It
crimes
is
also
were
undisputed
committed
after
that
defendant’s
January
1,
1999.
Thus, the legislative sentencing guidelines apply, even if
the
sentence
follows
the
imposition
and
revocation
of
probation, because the language of MCL 769.34(2) is clear
and lists no exceptions.
of
Appeals
that
the
We therefore agree with the Court
guidelines
apply
to
all
enumerated
felonies committed on or after the effective date, whether
or not the sentence is imposed after probation revocation.5
B. The act giving rise to the probation violation may
provide a substantial and compelling reason to depart from
the legislative sentencing guidelines.
MCL 771.4, which governs probation and revocation of
probation, states:
It is the intent of the legislature that the
granting of probation is a matter of grace
conferring no vested right to its continuance. If
during the probation period the sentencing court
determines that the probationer is likely again
to engage in an offensive or criminal course of
conduct
or
that
the
public
good
requires
revocation of probation, the court may revoke
probation. All probation orders are revocable in
any manner the court that imposed probation
considers applicable either for a violation or
attempted violation of a probation condition or
for any other type of antisocial conduct or
action on the probationer's part for which the
court determines that revocation is proper in the
public interest. Hearings on the revocation shall
be summary and informal and not subject to the
5
The
judicially
created
sentencing
guidelines,
however, do not apply to probation revocation cases.
6
rules of evidence or of pleadings applicable in
criminal trials. In its probation order or by
general rule, the court may provide for the
apprehension, detention, and confinement of a
probationer accused of violating a probation
condition or conduct inconsistent with the public
good. The method of hearing and presentation of
charges are within the court's discretion, except
that the probationer is entitled to a written
copy of the charges constituting the claim that
he or she violated probation and to a probation
revocation hearing. The court may investigate and
enter a disposition of the probationer as the
court determines best serves the public interest.
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. This
section does not apply to a juvenile placed on
probation and committed under section 1(3) or (4)
of chapter IX to an institution or agency
described in the youth rehabilitation services
act, 1974 PA 150, MCL 803.301 to 803.309.
[Emphasis added.]
The
sentence
at
issue
in
MCL
771.4
is
clearly
permissive, not mandatory. It states that “if” probation is
revoked,
probation
the
had
court
never
“may”
sentence
the
defendant
been
granted.
While
the
as
if
sentencing
court may sentence the probationer in the same manner and
to the same penalty, nothing in the statute requires it to
do
so.
In
fact,
the
statute
places
an
affirmative
obligation on the trial court to take only two actions—to
provide the probationer with a written copy of the charges
constituting
the
probation
violation
probation revocation hearing.
7
and
to
conduct
a
Thus,
probation.
the
court
In
the
may
event
continue,
that
extend,
the
court
or
revoke
revokes
a
defendant’s probation, it may sentence the defendant “in
the same manner and to the same penalty as the court might
have done if the probation order had never been made.” A
judge, however, is not required to sentence the defendant
“in the same manner.”6
Further,
the
Legislature
did
not
alter
our
jurisprudence on probation in the statutory codification of
sentencing guidelines.7
That is, a probation violation does
“not constitute a separate felony . . . .”
Id. at 482.
Rather, “revocation of probation simply clears the way for
a resentencing on the original offense.”8
Defendant here is
thus being sentenced on the original offense—possession of
a Molotov cocktail.
Without a mandate to impose a sentence
6
MCL 771.7(1), which deals with revocation of
probation for a juvenile following certain convictions,
specifically requires a trial court to “order the juvenile
committed to the department of corrections for a term of
years that does not exceed the penalty that could have been
imposed for the offense for which the juvenile was
originally convicted and placed on probation.”
(Emphasis
added.)
The Legislature could have incorporated similar
language in MCL 771.4 if it intended to preclude the trial
court from sentencing adult probationers to a term of years
that exceeds the penalty that could have originally been
imposed, but it did not do so.
7
People v Kaczmarek, 464 Mich 478, 482; 628 NW2d 484
(2001).
8
Id. at 483.
8
on
the
probationer
in
the
same
manner
and
to
the
same
penalty that could have been imposed if the probation order
had never been made, it is perfectly acceptable to consider
postprobation
factors
in
determining
whether
substantial
and compelling reasons exist to warrant an upward departure
from the legislative sentencing guidelines.9
Of
course,
not
every
probation
revocation warrants an upward departure.
violation
and
A trial court has
broad latitude in deciding whether to revoke probation.
It
has less latitude in imposing a sentence in excess of the
guidelines.
The sentencing court must always follow the
requirements set forth in MCL 769.34, as interpreted in
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003).
MCL
769.34(3)
permits
a
court
to
“depart
from
the
appropriate sentence range established under the sentencing
guidelines
.
compelling
reason
record
the
“substantial
.
.
if
for
reasons
and
the
that
for
court
has
departure
departure.”
compelling”
9
reason
a
and
substantial
states
Babcock
as
on
and
the
defines
requiring
a
an
We recognize that in Kaczmarek, supra at 483, we
noted that “‘[i]f a judge finds that a probationer violated
his probation by committing an offense, the probationer is
neither burdened with a new conviction nor exposed to
punishment other than that to which he was already exposed
. . . .’”
(Citation omitted.)
The issue in Kaczmarek,
however, was whether a probation violation is a “crime”; it
was not, as it is in this case, how a defendant should be
sentenced after violating probation.
9
objective
and
verifiable
"irresistibly"
grabs
the
"considerable worth."
“substantial
and
reason
court’s
that
“keenly”
attention
and
Appeals
compelling”
departing
held
substantial
considered
that
from
the
and
when
is
of
Moreover, Babcock requires that the
reasons
articulated
trial court justify that particular departure.
of
or
the
trial
sentencing
compelling
scoring
the
court’s
prior
they
record
the
The Court
reasons
guidelines
because
by
for
were
were
not
already
variables
and
offense variables.
C. Application of Babcock to defendant’s postprobation
violation sentence.
Although the trial court considered several reasons
for
its
upward
departure,
it
did
not
sufficiently
articulate its reasons on the record, because it believed
that
Babcock
did
not
apply
revocation of probation.
were
already
variables
10
and
sentences
imposed
after
Some of the trial court’s reasons
considered
offense
to
in
scoring
variables.10
the
Some
prior
of
the
record
trial
The trial court referred to defendant’s prior
criminal history and recidivist history as factors to
support defendant’s sentence. These factors, however, were
included in the scoring of the prior record variables and
offense variables and, thus, were insufficient to support
an upward departure absent a finding by the trial court
that the factors were given inadequate weight when scored.
MCL 769.34(3)(b).
The trial court did not believe the
Footnotes continued on following page.
10
court’s reasons, however, were not considered in connection
with the prior record variables and offense variables, such
as defendant’s intent to explode the Molotov cocktail in
order to harm his sister. Further, the trial court did not
consider
the
circumstances
probation
surrounding
violation–defendant’s
possession
defendant’s
of
a
shotgun
while walking down the street near his sister’s home–in
scoring the variables.
The Court of Appeals erroneously implied that all of
defendant’s conduct noted by the trial court was considered
in
scoring
the
prior
variables.
Because
because
trial
the
of
court
record
this
did
variables
erroneous
not
apply
and
offense
conclusion
the
and
legislative
sentencing guidelines in imposing defendant’s sentence, we
remand this case to the trial court for resentencing. Upon
resentencing,
conduct
the
trial
underlying
court
may
defendant’s
consider
probation
whether
the
violation
constitutes a substantial and compelling reason to depart
from the legislative sentencing guidelines.
legislative sentencing guidelines applied to sentences
imposed after revocation of probation and, thus, did not
deem it necessary to state that the above factors were
given inadequate weight.
To the extent that the trial
court failed to apply the guidelines when imposing
defendant’s sentence, it erred.
11
IV. CONCLUSION
The
legislative
sentences
imposed
defendant
is
sentencing
after
entitled
guidelines
probation
to
be
apply
revocation.
resentenced
to
Thus,
under
the
legislative sentencing guidelines.
Further, a defendant’s
conduct
be
while
on
probation
can
considered
as
a
substantial and compelling reason for departure from the
legislative sentencing guidelines.
Defendant’s sentence is
thus vacated and this matter is remanded to the trial court
for further proceedings consistent with this opinion.
Maura D. Corrigan
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Robert P. Young, Jr.
Stephen J. Markman
12
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.
