Interesting Blakely development in Michigan

Soon after Blakely was decided last summer, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan’s guideline scheme operates in a manner that avoids Blakely problems.  That assertion came without full briefing of the issue and, as detailed in this post, is not perfectly obvious to everyone.

Today I received news that last week the Michigan Supreme Court entered the following order in the case of People v Drohan:

On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether Blakely v Washington, 124 S Ct 2531; 159 L Ed 2d 403 (2004), and United States v Booker, 125 S Ct 738

The lower court opinion in Drohan is at People v Drohan, 264 Mich. App. 77, 689 N.W.2d 750 (Mich. App. 2004).  In that opinion, Michigan’s intermediate appellate court dropped this interesting footnote:

We further note defendant’s allegation in a supplemental brief that Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the sentencing in this case.  We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004), that Blakely does not affect Michigan’s sentencing system.  We disagree with defendant that this statement from Claypool is not binding on us.  Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.