It has long been the case that federal defendants could appeal sentences on the basis of procedural or substantive reasonableness that were within the advisory guideline range. But criminal defendants in Michigan had some serious procedural obstacles to overcome in order to appeal a within-guidelines sentence. In a recent opinion, the Michigan Supreme Court clarified that defendants may appeal even within-guideline sentences for reasonableness and proportionality. In People v Posey, No. 162373 (Mich July 31, 2023), Justice Bolden writing for the Court held that appellate courts are required to review within-guideline sentences for reasonableness under principles of proportionality.
The opinion by Justice Bolden provides an excellent review of state and federal sentencing law and the constitutional considerations. All criminal practitioners should read the opinion.
After Lockridge and Steanhouse, appellate courts have been required to review outside-guideline sentences for reasonableness, with the key test being “whether the sentence is proportionate to the seriousness of the matter….” Steanhouse, 500 Mich 453, 475 (2017) (quoting People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990)). After Posey, that proportionality standard can be applied on review of within- guideline sentences. While the guidelines are still a highly relevant consideration, proportionality must be measured according to the offense and the offender, not according to the sentence’s relationship to the guidelines. The defendant on appeal bears the burden of overcoming a presumption that a within-guidelines sentence is proportional. This approach, according to the Michigan Supreme Court, ensures that while not binding, a within-guidelines sentence reflects that both the sentencing court and the sentencing guidelines reached the same conclusion regarding the appropriate punishment for a defendant considering their circumstances and their offenses. Thus, the supreme court directs that on appeal there is a nonbinding rebuttable presumption of proportionality of a within-guidelines sentence.
The Posey Court directs that the rule outlined in People v Powell, 278 Mich App 318; 750 NW2d 607 (2008) will apply to overcome the presumption or proportionality. Pre-Posey cases interpreting how a defendant may overcome the presumption of proportionality have looked at whether there are unusual circumstances that would render a presumptively proportionate sentence disproportionate. People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990); see also People v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013). Factors like age, employment and lack of criminal history are not typically deemed unusual circumstances that would overcome the presumption. Milbourn, 435 Mich at 636. But other unusual circumstances can suffice to overcome the presumption.
This is a big development for Michigan defendants because in many cases, the gulf between the low-end and top-end of the advisory guideline range is large and Posey now will help ensure that sentencing courts are considering all of the proportionality factors. Willey & Chamberlain has a lot of experience in handling criminal appeals. Contact us for your appellate needs.