Consecutive Sentences in Michigan CSC Cases

In Michigan, sentences for several convictions run at the same time (concurrently) unless a statute expressly authorizes the court to make one begin when another ends (consecutively).^[1] The first-degree criminal sexual conduct (CSC) statute contains such an authorization: the court may order a first-degree CSC prison term to be served consecutively to any term imposed for any other criminal offense arising from the same transaction.^[2]

This page explains that provision, how courts have read "same transaction," and the other consecutive-sentencing statutes that can appear in a sex-offense case.

What is the difference between concurrent and consecutive sentences?

With concurrent sentences, the terms for each count are served together. With consecutive sentences, they are served one after another. The practical effect shows up in the parole statute: when a prisoner is serving consecutive terms, the parole board gains jurisdiction only after the prisoner has served the total time of the added minimum terms, and the maximum terms are added together to compute a new maximum.^[6]

The Court of Appeals has put the baseline this way: "In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute."^[7]

What does MCL 750.520b(3) allow?

The subsection is one sentence long: "The court may order a term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction."^[2]

Three features of that sentence have been addressed by the Court of Appeals.

"May" means the judge has a choice

In People v Ryan (2012) the court said the provision "does not mandate consecutive sentencing. Rather, it provides that a court 'may' impose consecutive sentences, making the decision discretionary."^[3]

"Any other criminal offense" can be another first-degree count

Ryan also held that the phrase "can encompass additional violations of the same CSC-1 statute." A court therefore has discretion to order the sentence for one first-degree CSC conviction to be served consecutively to the sentence for another, as long as the conduct forming the basis of each conviction is distinct.^[3]

"Imposed under this section" limits it to first-degree CSC

The authority is found in the first-degree CSC statute and applies to a term of imprisonment imposed under that section.^[2] The elements of that offense are covered in first-degree CSC under MCL 750.520b.

What counts as the "same transaction"?

The statute does not define the term. The Court of Appeals has said it has a temporal requirement: the question is whether the acts "grew out of a continuous time sequence" and whether they "sprang one from the other and had a connective relationship that was more than incidental."^[8]

Two decisions show where the line falls.

Case	What the Court of Appeals said
People v Ryan (2012)	The same-transaction test asks whether the acts grew out of a continuous time sequence and sprang one from the other with a more than incidental connection.[8]
People v Bailey (2015)	The trial court had no statutory authority to impose consecutive sentences, and doing so was plain error, where the offenses involved three victims over a course of several years and there was no evidence in the record that any of them occurred during the same transaction.[9]

Bailey states the rule this way: "an ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction. For multiple penetrations to be considered as part of the same transaction, they must be part of a 'continuous time sequence,' not merely part of a continuous course of conduct."^[4]

So where a case involves separate incidents on different dates, MCL 750.520b(3) authorizes consecutive sentencing only for offenses that arose from the same transaction as the first-degree offense.^[2][4]

Who decides whether it was one transaction?

In People v DeLeon (2016) the defendant argued that a jury had to make the same-transaction finding. The Court of Appeals disagreed, holding that the Sixth Amendment does not prohibit the use of judicial fact-finding to impose a consecutive sentence under MCL 750.520b(3).^[7]

Are there other ways sentences can run consecutively in a sex-offense case?

Yes. MCL 750.520b(3) is specific to first-degree CSC, but other statutes authorize or direct consecutive terms in situations that can arise in any case.^[2][10][11]

Situation	Rule	Mandatory or discretionary?
First-degree CSC and another offense from the same transaction	The court may order the first-degree term served consecutively[2]	Discretionary[3]
A crime committed while incarcerated in a penal institution, or a felony committed while on parole	The new term begins to run when the earlier term (or its remaining portion) expires[10]	The statute says "shall"[10]
A felony committed while another felony charge is pending	The sentences for the two offenses may run consecutively[11]	Discretionary unless the later offense is a major controlled substance offense[11]
Tampering with or failing to pay for a lifetime electronic monitoring device	The term may run consecutively to a term for another violation arising from the same transaction[12]	Discretionary[12]

The pending-charge rule matters for anyone on bond. If a person charged with a felony commits a subsequent felony while that charge is pending, the sentences imposed for the two offenses may run consecutively.^[11] Bond in these cases is covered in bond in CSC cases.

This list is not a catalog of every consecutive-sentencing statute in Michigan law. It covers the ones verified for this guide.

How does consecutive sentencing interact with mandatory minimums and the guidelines?

Each count is sentenced on its own terms first. The sentencing guidelines recommend a minimum range for each offense, and that range is advisory.^[13] A statutory mandatory minimum must be imposed where it applies.^[14] First-degree CSC by a person 17 or older against a child under 13 carries life or any term of years, but not less than 25 years.^[15] A person 18 or older convicted of first-degree CSC against a child under 13, with a prior conviction for first-, second-, third- or fourth-degree CSC or assault with intent to commit CSC against a child under 13 (or a substantially corresponding federal or other-state offense), must be sentenced to life without the possibility of parole.^[16] A second or subsequent offense under the first-, second- or third-degree statutes carries a mandatory minimum of at least 5 years.^[17]

If two such terms are made consecutive, the parole board gains jurisdiction only after the total of the added minimums has been served.^[6] For a CSC crime committed on or after December 15, 1998, the parole board's jurisdiction begins only when a period equal to the minimum sentence imposed by the court has been served.^[18]

The guidelines themselves are explained in sentencing guidelines in CSC cases, the minimums in mandatory minimum sentences for CSC, and parole in prison, parole and treatment.

What must a defendant be told before pleading?

The court rule on plea withdrawal gives a defendant a right tied directly to consecutive sentencing. Before sentence, a defendant is entitled to withdraw a plea if "a consecutive sentence will be imposed and the defendant was not advised at the time of his or her plea that the law permits or requires consecutive sentencing in his or her case."^[5]

The same rule covers sentence agreements more generally. If the court states that it is unable to sentence as it earlier said it would, it must give the defendant the opportunity to affirm or withdraw the plea, unless the defendant committed misconduct after the plea was accepted and the court does not allow withdrawal for good cause.^[19] Plea procedure is covered in plea bargains in CSC cases and plea or trial: how the decision is made.

What people get wrong

• "Every count adds to the total." Concurrent sentencing is the norm; consecutive sentences require specific statutory authority.^[7]
• "Years of abuse are one transaction." An ongoing course of conduct is not enough; the offenses must be part of a continuous time sequence.^[4]
• "If the statute applies, the judge has to stack." Under MCL 750.520b(3) the decision is discretionary.^[3]
• "Second-degree CSC sentences can be stacked the same way." The authority in MCL 750.520b(3) attaches to a term of imprisonment imposed under the first-degree statute.^[2]

The maximum term for each offense is listed in the CSC penalties chart.