Dissention in the Michigan ranks?

Reaching out to address the Blakely issue quickly, the Michigan Supreme Court in July in People v. Claypool (detailed here) dropped a footnote asserting that Michigan’s guideline scheme operates in a manner that avoids Blakely problems. That decision was thought questionable at the time, and earlier this week in People v. Holtschlag, 2004 Mich. App. LEXIS 2751 (Mich. App. Oct. 19, 2004), a Michigan intermediate appellate court dropped its own interesting footnote questioning the conclusion of the Claypool court:

We note that MCL 777.36(2)(a) appears on its face to be in opposition to the recent United States Supreme Court decision of Blakely v Washington, 124 S. Ct. 2531 (2004), as the statute explicitly allows a sentencing court to consider factors not before the jury. However, a majority of the Michigan Supreme Court recently decided that Blakely does not apply to Michigan’s indeterminate sentencing guidelines in which the maximum sentence is set by law. People v Claypool, 470 Mich. 715, 730 n 14; 684 N.W.2d 278 (2004) (Justices Cavanagh, Weaver and Young concurred with Justices Taylor and Markman, writing for the Court, that Blakely is inapplicable in Michigan).