Section I. Introduction

On March 9, 2026, the Michigan Court of Appeals issued a published opinion in People v Brcic (Brcic II), Docket Nos. 362727; 366230 (2026), that represents a significant development in the law of sentencing proportionality in Michigan. For the first time since the Michigan Supreme Court's decision in People v Posey, 512 Mich 317; 1 NW3d 101 (2023), the Court of Appeals applied the "unusual circumstances" standard to vacate a within-guidelines minimum sentence as disproportionate.

The significance of this holding cannot be overstated. Michigan's sentencing guidelines carry a rebuttable presumption of proportionality, and before Brcic II, that presumption had proven virtually unassailable in practice. The decision also addresses the outer limits of upward departure sentencing, vacating a 25-year minimum sentence for a third-offense operating while intoxicated conviction where the guidelines recommended a maximum minimum of 76 months.

This article examines the legal framework governing proportionality review in Michigan, analyzes the Brcic II decision in detail, and identifies the practical implications for criminal defense attorneys and their clients.

Section II. Legal Framework: Proportionality Review in Michigan

A. The Milbourn Foundation

The principle of proportionality in Michigan sentencing traces its roots to People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), in which the Michigan Supreme Court held that a sentencing court abuses its discretion when it imposes a sentence that is not proportionate to the seriousness of the circumstances surrounding the offense and the offender. Milbourn established two foundational principles that continue to govern Michigan sentencing: the most serious crimes warrant the most severe punishments, and offenders with prior criminal records are subject to harsher sentences than those with no prior convictions. Milbourn, 435 Mich at 650.

Milbourn also recognized the corollary that an offense at the less serious end of the broad spectrum of conduct a statute encompasses calls for a sentence toward the lower end of the guideline range, not the upper end. The Court examined whether the facts constituted a typical instance of the charged offense and found that a burglary committed for an emotional rather than pecuniary purpose, directed against property rather than persons, warranted a sentence toward the lower end of the range. Milbourn, 435 Mich at 667–668.

B. Lockridge, Steanhouse, and the Advisory Guidelines

In People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), the Michigan Supreme Court rendered the sentencing guidelines advisory rather than mandatory by striking the requirement that judges find facts beyond those submitted to a jury or admitted by the defendant before scoring offense variables. However, the Court preserved the guidelines' role as a highly relevant consideration in sentencing discretion and required courts to consult and account for them.

People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), confirmed that Michigan appellate courts review all sentences, whether within or outside the guidelines range, for proportionality under the Milbourn standard, not for federal-style reasonableness under United States v Booker. The principle of proportionality requires that a sentence be proportionate to the seriousness of the offense and the circumstances of the offender. Steanhouse, 500 Mich at 459–460.

C. The Posey Framework: Within-Guidelines Sentences

People v Posey, 512 Mich 317; 1 NW3d 101 (2023), is the foundational modern authority on within-guidelines sentencing. Justice Bolden's plurality opinion, joined by Justice Bernstein and concurred in on the dispositive point by Justices Cavanagh and Welch, held that a within-guidelines sentence carries a rebuttable presumption of proportionality. The defendant bears the burden of demonstrating that the sentence is unreasonable or disproportionate. Posey, 512 Mich at 359.

The mechanism for rebutting this presumption was articulated in People v Ventour, 349 Mich App 417, 430; 27 NW3d 660 (2023), quoting People v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013): a defendant may overcome the presumptive proportionality of a within-guidelines sentence by presenting unusual circumstances that would render the presumptively proportionate sentence disproportionate. While this standard had been on the books for years, no published Michigan appellate decision had ever applied it to vacate a within-guidelines sentence until Brcic II.

D. Departure Sentences: The Dixon-Bey Analysis

For sentences that depart from the guidelines range, there is no presumption of proportionality. The Court of Appeals reviews such sentences to determine whether a departure sentence is more proportionate than a sentence within the guidelines range, examining whether the guidelines accurately reflect the seriousness of the crime, factors not considered by the guidelines, and factors considered by the guidelines but given inadequate weight. People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017).

Key Principle: Even where some departure is appropriate, the extent of the departure may itself violate the principle of proportionality, independent of whether there was a valid basis for departing at all. Milbourn, 435 Mich at 660.

Section III. Factual and Procedural Background

A. The OWI-3rd Offense (Docket No. 366230)

On July 14, 2020, Officer Noah Morse was dispatched to a Walmart in Cheboygan County on an unrelated larceny complaint. A store employee asked Morse to check on defendant Steven Russell Brcic, who appeared intoxicated near the bottle return area. Morse found Brcic sitting in the driver's seat of a Chevrolet Tahoe in the parking lot with a beer can visible in the center console. Brcic acknowledged he had been drinking and said he was waiting for his brother. Morse instructed Brcic not to drive and returned inside.

Morse subsequently observed through surveillance footage that the Tahoe had departed. Shortly thereafter, a local resident called 911 after hearing a crash. Arriving officers found the Tahoe flipped on its side against a tree near a public recreation area. Three minors at the scene told police they had seen a man driving the Tahoe recklessly, at high speed, swerving toward them and shouting profanities before the crash. All three identified Brcic at the scene and again at trial as the driver.

Officers pursued Brcic on foot toward a nearby river. Ignoring repeated commands to stop, Brcic waded in and swam backstroke for more than 15 minutes before boarding a police boat and being taken into custody. A hospital blood draw showed a blood alcohol content of 0.2266. Brcic was charged with OWI-3rd, among other offenses, as a fourth-offense habitual offender. This case was the subject of a prior interlocutory appeal concerning suppression of a warrant-based jail blood draw. See People v Brcic, 342 Mich App 271; 994 NW2d 812 (2022).

B. The PPW Offense (Docket No. 362727)

While Brcic was detained in Cheboygan County Jail during the pendency of the OWI case, he received a disposable shaving razor from corrections staff pursuant to standard jail policy. The Inmate Rule Guide required razors to be returned undamaged and provided that missing or damaged blades would be investigated. When corrections officers came to collect the razor near the 10:00 a.m. deadline, they found Brcic unconscious and bleeding heavily from a self-inflicted wrist wound. The handle of the razor was stuck to his forehead. Investigators found the razor blade, separated from its handle and protective guard, at the bottom of Brcic's toilet. He had no cellmates.

Brcic was charged with prisoner in possession of a weapon under MCL 801.262(2), as a fourth-offense habitual offender. A jury convicted him.

C. The Sentences

For the PPW conviction, the sentencing guidelines recommended a minimum range of 14 to 58 months. The trial court sentenced Brcic to 58 months to 25 years as a fourth-offense habitual offender. The court acknowledged that Brcic did not actually harm anybody other than himself and that the razor had been discarded in the toilet, but cited his extensive criminal history as justification for the top-of-range sentence.

For the OWI-3rd conviction, the sentencing guidelines recommended a minimum range of 19 to 76 months. The trial court sentenced Brcic to 25 to 50 years, an upward departure of approximately four times the maximum minimum recommended by the guidelines. The court justified this departure by citing Brcic's repeated drunk driving offenses and explicitly analogized his risk to the community to that of a fourth-offense violent habitual offender subject to the 25-year mandatory minimum under MCL 769.12(1)(a).

Section IV. The Court of Appeals Affirms Both Convictions

Before reaching the sentencing issues, the Court rejected Brcic's challenges to both convictions.

A. PPW: Authorization Does Not Extend to Disassembly

Brcic argued that because the jail had issued the razor to him, he was authorized to possess it. The Court rejected this argument by drawing a distinction. The PPW statute, MCL 801.262(2), prohibits possession of a weapon unless authorized by the chief administrator of the jail. While Brcic lawfully received the intact razor, the jail's own Inmate Rule Guide prohibited damaging or disassembling razors. By extracting the blade and separating it from its handle and protective guard, Brcic exceeded the scope of his authorization. The resulting bare razor blade constituted a weapon or other item that may be used to injure within the statute's meaning.

B. Speedy Trial: COVID and Interlocutory Delays Are Neutral

Brcic was incarcerated for approximately 31 months before trial, a delay that triggered the presumption of prejudice under Barker v Wingo, 407 US 514, 530 (1972), and People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). The Court found the prosecution rebutted the presumption because the bulk of the delay was attributable to a stay of proceedings during the interlocutory appeal and COVID-19 related adjournments, both treated as neutral delays carrying only minimal weight against the prosecution.

Section V. The Within-Guidelines PPW Sentence: The New Frontier

A. The Holding

The Court of Appeals held that Brcic had overcome the rebuttable presumption of proportionality applicable to his within-guidelines 58-month minimum sentence for PPW and vacated the sentence as disproportionate despite it falling within the recommended guidelines range. This appears to be the first published Michigan appellate decision to vacate a within-guidelines sentence on this basis.

B. The Analytical Framework Applied

The Court's analysis proceeded from Milbourn's instruction that courts must assess whether the offense conduct is at the more or less serious end of the broad spectrum of conduct the statute encompasses. Applying this framework, the Court concluded that Brcic's PPW offense conduct was more like the circumstances in Milbourn than in Posey, placing it at the least extreme end of the range of conduct the PPW statute encompasses.

1. Brcic lawfully obtained the razor through official jail channels.
2. Brcic had no cellmates, meaning no person was in his immediate environment who could have been harmed.
3. Brcic used the razor only against himself, with the intent of ending his own life.
4. Brcic disposed of the razor in the toilet before being discovered.

The Court held that these four circumstances, taken together, constituted the unusual circumstances sufficient to render the presumptively proportionate sentence disproportionate.

C. The Role of the Trial Court's Own Statements

You know, if I were sentencing somebody for this exact crime today without that criminal history, what sentence to pick would be very, very difficult. It might even call for a downward departure; I don't know. I don't know. I go back and forth on that to be honest.

The Court of Appeals treated this statement as an acknowledgment that the circumstances of the offense alone did not justify a harsh sentence and that it was Brcic's criminal history that drove the top-of-range outcome.

D. Criminal History in the Guidelines vs. Criminal History as a Departure Factor

The Court made an analytically critical observation: Brcic's criminal history was already reflected in the prior record variables. The guidelines had assigned points across multiple PRV categories for his seven felonies and eleven misdemeanors. The specific danger he posed to penal institution security was captured in Offense Variable 19's 25-point score. The Court found that the presumptively proportionate range already considered most if not all of the negative circumstances of the offender.

E. Mental Illness as a Mitigating Sentencing Factor

The Court gave explicit weight to Brcic's mental illness as a mitigating sentencing factor. Brcic's allocution described a psychiatric crisis, including repeated requests for mental health treatment in the jail without meaningful response. Citing People v Bennett, 335 Mich App 409, 436; 966 NW2d 768 (2021) (Gleicher, J., concurring), the Court observed that mental illness is universally recognized as a mitigating factor in sentencing considerations.

Significant New Authority: Brcic II is now published authority for the proposition that documented psychiatric history in a PSIR is a mitigating sentencing factor that must be weighed.

F. The Prosecution's Argument and the Court's Response

We agree that there was sufficient evidence to support the jury's verdict. That Brcic attempted to take his own life in part due to serious mental illness and without the opportunity or intent to physically harm another individual are the circumstances of the offense. We must consider the circumstances of the offense and the offender to assess whether a sentence is reasonable.

This holding distinguishes the elements required for conviction from the circumstances relevant to proportionate sentencing. An offense can be proven beyond a reasonable doubt while the specific circumstances of its commission place it at the least serious end of the statutory spectrum.

Section VI. The OWI-3rd Departure Sentence: The Extent Problem

A. The Holding

The Court also vacated Brcic's 25-year minimum sentence for OWI-3rd, finding it disproportionate. The Court acknowledged that some departure from the guidelines range of 19 to 76 months might have been appropriate, but held that a departure to 25 years was not justified by the reasons the trial court provided.

B. What the Trial Court Got Right

The Court acknowledged that the trial court identified legitimate factors that could support some departure, including Brcic's pattern of repeatedly committing the same type of offense, failed programming, repeated violations of parole and probation by consuming alcohol, commission of the offense only months after release on parole, and particularly dangerous offense circumstances.

C. The Fatal Flaw: The Violent Offender Analogy

The trial court's stated rationale for the extent of the departure was its analogy to MCL 769.12(1)(a), the statute prescribing a 25-year mandatory minimum for fourth-offense violent habitual offenders. The Court of Appeals found this analogy insufficient to justify the magnitude of the departure.

Although facts establishing that a defendant poses a risk to community safety in the future can, in appropriate cases, justify some departure from the guidelines, Michigan law also recognizes an important difference between conduct that carries a risk of harm and the actual commission of violence.

Core Principle Restated: Proportionality constrains not only the decision to depart from the guidelines, but also the distance of that departure. Even a compelling case for some departure does not justify a sentence of any magnitude.

D. The Specific Characteristics Standard

The Court noted that specific characteristics of an offense and an offender that strongly presage future criminal acts may justify an out-of-guidelines sentence, especially if they are not already adequately contemplated by the guidelines. However, the trial court's reasoning in Brcic II did not meet this standard.

Section VII. Judicial Bias and Remand to the Same Judge

Brcic requested that both cases be remanded to a different judge, arguing the trial court's statements demonstrated personal bias. The Court analyzed this under the unpreserved plain-error standard and applied the three-factor test from People v Hill, 221 Mich App 391, 398; 561 NW2d 862 (1997).

The Court acknowledged that the trial court's statements raised some concern, but declined to order reassignment, finding that these were isolated incidents tied to the facts of the case, not evidence of the systematic personal condemnation that warranted reassignment in People v Walker, 504 Mich 267, 286; 934 NW2d 727 (2019).

Defense attorneys should note that the Court did flag concerns without granting relief. On remand, the trial court's prior statements remain part of the record.

Section VIII. Practical Implications

A. For Defense Attorneys: Rebutting the Presumption

The most immediate practical lesson from Brcic II is that the rebuttable presumption of proportionality attaching to within-guidelines sentences can actually be rebutted. The analytical framework for defense counsel is to identify circumstances of the offense or offender that are only mitigating, unusual or uncommon in the context of the charged offense, and not already reflected in the guidelines scoring.

B. Mental Health Evidence at Sentencing

The Court's explicit treatment of mental illness as a mitigating sentencing factor should prompt defense counsel to develop psychiatric and psychological evidence with far greater care than is typical in most felony sentencing proceedings. The PSIR is the vehicle through which this information reaches the sentencing court as a matter of record.

C. Challenging the Extent of Departure Sentences

For cases involving upward departure sentences, Brcic II reinforces the importance of distinguishing the fact of a departure from its extent. Even where a court has valid reasons for departing, defense counsel should demand a specific justification for why the departure is of the magnitude imposed.

D. Preserving the Record

Nothing in Brcic II diminishes the importance of record preservation. The within-guidelines disproportionality argument succeeded in part because the trial court's own sentencing statements created an unusually clear record that the offense circumstances independently pointed toward leniency.

E. Implications for OWI Defense

The OWI-3rd sentencing analysis in Brcic II will be of particular interest to attorneys who handle drunk driving cases prosecuted as third-offense felonies under MCL 257.625(1)(a) and (9)(c). The Court has now held that a 25-year minimum sentence for OWI-3rd, even for a defendant with an extensive drunk driving history and dangerous offense conduct, is disproportionate.

Section IX. Conclusion

People v Brcic (Brcic II) is a watershed decision in Michigan sentencing law. It confirms that a defendant can rebut the presumption of proportionality attaching to a within-guidelines sentence, and that the Court of Appeals will vacate such a sentence where the circumstances of the offense and offender are exclusively mitigating, unusual, and unaccounted for in the guidelines scoring.

The decision also reinforces that a trial court's legitimate concern about a defendant's dangerousness does not license a sentence of any magnitude. Proportionality constrains both the decision to depart from the guidelines and the distance of that departure.

Perhaps most enduringly, Brcic II signals a more serious judicial engagement with mental illness as a mitigating sentencing factor. For defense practitioners, the decision offers new tools, a workable framework, and a clear roadmap for challenging sentences that fail to account for the full picture of who the defendant is and what they actually did.