Sentencing; Effect of a within-guidelines sentence; MCL 769.34(10); People v Lockridge; People v Schrauben; People v Posey; Restitution; Facial challenge to the constitutionality of MCL 769.1k(1)(b)(iii); Due process; Tumey v Ohio; Ward v Village of Monroeville; Dugan v Ohio; People v Johnson

The court rejected defendant’s claim that MCL 769.34(10)’s first sentence should be declared invalid in light of Lockridge, but agreed with his argument that the trial court erred in ordering him to pay $590 in restitution. Finally, he failed to overcome the presumption that MCL 769.1k(1)(b)(iii) is constitutional. Thus, it affirmed in part, vacated in part, and remanded “for the ministerial task of correcting the judgment of sentence to reflect the proper restitution.” He was convicted of delivery of meth and sentenced as a fourth-offense habitual offender to serve concurrent terms of 10 to 40 years. While he acknowledged that MCL 769.34(10) required the court to affirm his sentence, he argued that the statute is invalid. But given that “Schrauben declared that MCL 769.34(10) was still valid following the Supreme Court’s decision in Lockridge, and the holding in Schrauben was subsequently confirmed by Posey,” the court was bound by those cases. The parties agreed that the trial court erred in ordering “defendant to pay $590 of restitution, and that only $300 was expended by law enforcement in the controlled buys that led to” his convictions. In addition, the error was plain as it was clear that the ordered restitution amount was incorrect. On remand the trial court is to correct “the order to provide restitution in the amount of $300.” Lastly, defendant argued that MCL 769.1k(1)(b)(iii) is unconstitutional because it violates defendants’ due process rights “by creating a financial incentive for trial courts to convict defendants.” The court noted that Johnson addressed such a facial challenge to the constitutionality of the statute and concluded that the defendant “failed to show that the nexus between the courts and the costs imposed under MCL 769.1k(1)(b)(iii) more closely resembled the improper cost schemes in Tumey and Ward, than the proper cost scheme in Dugan.” Likewise, because he did not show “that MCL 769.1k(1)(b)(iii) creates judges that are not impartial,” his separation-of-powers argument also failed. Additionally, the court was bound by the ruling in Johnson as to both arguments.