Posey Has Teeth: Substantive Unreasonableness and the Limits of the “Presumption of Proportionality” for Within-Guidelines Sentences – Comment on People of Michigan v. Troy Cameron McSorley

1. Introduction

The Michigan Supreme Court’s order in People v. McSorley (June 20 2025) ostensibly did only one thing: it denied leave to appeal and refused remand. Yet the powerful dissent by Justice Elizabeth M. Welch turns the routine denial into a signal flare illuminating unresolved tensions in Michigan’s modern sentencing jurisprudence. At the core lies a question left open since People v. Posey, 512 Mich 317 (2023): can a defendant ever obtain relief from a sentence that falls inside the legislative sentencing grid yet is still excessive relative to the crime and the offender?

McSorley, a General Motors employee with a 14-year crime-free gap, received a minimum term at the top of his guideline range (28 months) and a maximum term of 15 years for a non-violent breaking and entering in which nothing was stolen. The Department of Corrections recommended six months. Welch’s dissent asserts the sentence is substantively unreasonable, criticizes the trial judge’s reliance on speculative uncharged conduct, and warns that the Court’s silence risks rendering Posey “toothless.”

2. Summary of the Judgment

• The Supreme Court (majority unsigned) denied leave to appeal the Court of Appeal’s refusal to review McSorley’s sentence; it also denied a defense motion to remand for resentencing.
• Because the order is summary, no majority reasoning is supplied.
• Justice Welch, joined by no other justice, penned a detailed dissent arguing:

• The trial court abused its discretion by imposing an unreasonable, disproportionate sentence.
• The court impermissibly relied on speculation that McSorley committed other burglaries.
• Within-guidelines sentences remain merely presumptively, not inherently, reasonable under Posey, and an appellate court should say so in this case.

3. Analysis

3.1 Precedents Cited

• People v. Posey, 512 Mich 317 (2023) – Established that within-guidelines sentences are presumptively reasonable but still reviewable for substantive excessiveness.
• People v. Steanhouse, 500 Mich 453 (2017) – Adopted the “principle of proportionality” standard for abuse-of-discretion review.
• People v. Milbourn, 435 Mich 630 (1990) – Original articulation of the proportionality doctrine; revived post-Lockridge via Steanhouse.
• People v. Snow, 386 Mich 586 (1972) – Lists four penological factors (reformation, protection of society, disciplining the wrongdoer, deterrence) that inform proportionality.
• People v. Beck, 504 Mich 605 (2019) – Bars use of acquitted conduct at sentencing; Welch extends its logic to purely speculative conduct.
• People v. Boykin, 510 Mich 171 (2022) – Re-affirms the Snow analysis.
• Federal analogues: Gall v. United States, 552 U.S. 38 (2007) and United States v. Lee, 974 F.3d 670 (6th Cir 2020) – Provide the “substantive reasonableness” framework Welch borrows.

3.2 Legal Reasoning in the Dissent

1. Abuse of Discretion = Unreasonable Sentence – Under Steanhouse, proportionality governs. A court cannot rest on the grid score alone; it must ensure punishment fits both the offense and the offender.

2. Speculation vs. Proof – By musing “maybe you just didn’t get caught,” the trial judge in effect punished McSorley for hypothetical crimes, violating the presumption of innocence, notice, and the right to contest allegations (Beck; U.S. Const. amends. VI & XIV).

3. Snow Factors Misapplied – Welch walks through each factor:

• Reformation: defendant sought substance-abuse treatment and had maintained employment.
• Protection: 14 crime-free years suggests low current danger.
• Discipline & Deterrence: legitimate aims, but a six-month jail term could achieve them.

4. Sentence “Too Long” – Borrowing federal vocabulary, Welch declares the prison term is substantively unreasonable because its length bears no rational relationship to the offense seriousness or the offender’s current risk.

5. Systemic Concern – The Court has never reversed a within-guidelines sentence on substantive grounds. Persisting silence converts Posey’s rebuttable presumption into an irrebuttable rule, undermining appellate oversight.

3.3 Potential Impact

• Appellate Strategy – Defense counsel will cite Welch’s dissent to attack harsh within-guidelines sentences, urging courts to give Posey “teeth.”
• Trial-Court Mindset – Judges cognizant of due-process limits may refrain from speculating about uncharged conduct and articulate proportionality on the record.
• Future Precedent – Although not binding, the dissent lays an analytical roadmap for the first successful substantive-unreasonableness reversal in Michigan.
• Legislative Dialogue – The tension may pressure the legislature or Sentencing Commission to recalibrate burglary guidelines or clarify how probation recommendations interface with minimum terms.
• Due-Process Expansion – Extending Beck from “acquitted conduct” to “never-alleged conduct” could surface in constitutional challenges nationwide.

4. Complex Concepts Simplified

• Within-Guidelines Sentence – A sentence whose minimum prison term falls inside the numeric range produced by Michigan’s sentencing guidelines grid.
• Presumption of Proportionality – Appellate courts begin by assuming such a sentence is reasonable; the defendant may rebut by showing it is “too long” for the crime/offender.
• Substantive vs. Procedural Reasonableness – “Procedural” asks whether correct procedures (calculations, explanations) were followed; “substantive” asks whether, bottom-line, the length of the sentence is justified.
• Snow Factors – Four goals (reformation, protection, discipline, deterrence) guiding proportionality analysis.
• Acquitted Conduct – Alleged acts for which the defendant was formally tried and found not guilty; Beck bars their use to increase punishment.
• Uncharged / Speculative Conduct – Acts never alleged or proven; Welch argues sentencing based on such speculation is an even clearer due-process violation.

5. Conclusion

People v. McSorley adds no binding rule by itself, but Justice Welch’s dissent crystallizes a critical fault line in Michigan sentencing: whether Posey’s promise of meaningful review for within-guidelines sentences is real or illusory. By highlighting the misuse of speculative conduct and re-applying the Snow/Milbourn/Steanhouse proportionality continuum, the dissent equips litigants with a coherent blueprint to contest excessive punishment. Until the Court squarely addresses substantive unreasonableness within the grid, each denial of leave will amplify the debate. In that sense, Welch’s opinion may ultimately prove more influential than the order it accompanies: it reminds courts, counsel, and policymakers that numbers alone do not guarantee justice—reasoned judgment does.