Opinion
No. 335491
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DONALD MACKAY HALE, JR., Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 14-008436-FC Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Defendant, Donald Mackay Hale, Jr., appeals as of right his denial of resentencing after remand from this Court under Lockridge, 498 Mich 358, 970 NW2d 502 (2015). People v Hale, unpublished opinion per curiam of the Court of Appeals, issued June 28, 2016 (Docket No. 326661), pp 10-11. Because the trial court properly addressed whether it would have imposed a materially different sentence but-for the unconstitutional constraint on its discretion presented by the pre-Lockridge sentencing guidelines, we affirm.
I. BACKGROUND
This case arises from an armed home invasion on August 27, 2014. Defendant and an accomplice entered the home of the victim, her boyfriend, and her three young children. The intruders were armed with a sawed-off shotgun and demanded jewelry and cash. For his part, defendant bound the victim and stole $6,000 in cash, some necklaces, and the victim's wallet. Defendant then fled the scene and was eventually arrested later that evening.
For these acts, defendant was convicted of armed robbery, MCL 750.529; first-degree home invasion, MCL 750.110a(2); unlawful imprisonment, MCL 750.349b; third-degree fleeing and eluding, MCL 257.602a(3); and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
The trial court calculated defendant's sentencing guidelines at 171 months to 356 months. At the sentencing hearing, the trial court noted defendant's prior convictions for various controlled substance violations and recognized several "aggravating circumstances" of the instant criminal conduct, including the multiple convictions resulting from that conduct. Although the trial court opined that the guidelines were "quite high," the trial court ultimately concluded that the seriousness of defendant's conduct made sentencing within that guidelines range "proportionate and appropriate" under the circumstances. The trial court then sentenced defendant within the calculated guidelines range as a second-offense habitual offender, MCL 769.10, to concurrent sentences of 28 to 84 years' imprisonment for the armed robbery conviction, 15 to 30 years' imprisonment for the first-degree home invasion conviction, 12 to 22 years and six months' imprisonment for the unlawful imprisonment conviction, and three years and six months to seven years and six months' imprisonment for the fleeing and eluding conviction. As statutorily required, MCL 750.227b(3), the trial court sentenced defendant to a concurrent term of two years' imprisonment for the felony-firearm conviction.
Defendant appealed his convictions and sentence to this Court. This Court affirmed defendant's convictions but found that judicial fact-finding unconstitutionally increased defendant's sentencing guidelines in violation of People v Lockridge, 498 Mich at 373-374. Hale, unpub op at 10-11. Because the constitutional issue addressed by Lockridge was not judicial fact-finding in-and-of itself, but judicial fact-finding within an otherwise mandatory sentencing-guidelines scheme, this Court did not remand this case for mandatory resentencing, but rather remanded this case for the trial court to determine whether it would have imposed a materially different sentence had it known that the legislative guidelines were advisory only. Id.
On July 15, 2016, pursuant to Lockridge, 498 Mich at 398, the trial court issued an order that asked defendant if he would like to be resentenced. Defendant responded affirmatively. At the same time, defendant also raised a claim that his presentence investigation report (PSIR) contained inaccurate information regarding a prior conviction that caused his sentencing guidelines to be improperly scored. On September 9, 2016, the trial court issued a decision on remand that reaffirmed defendant's sentence, stating, "Upon a review of the record, given the facts and circumstances of defendant's convictions, and taking into consideration the now-advisory nature of our Sentencing Guidelines, this Court concludes that it would have imposed the same sentence on defendant, absent the unconstitutional constraint on its discretion."
II. ANALYSIS
The trial court's denial of a motion for resentencing is reviewed for an abuse of discretion. People v Puckett, 178 Mich App 224, 227; 443 NW2d 470 (1989). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011).
A trial court's sentence is reviewed for reasonableness. Lockridge, 498 Mich at 365. When reviewing a sentence for reasonableness, this court must determine whether the trial court abused its discretion by imposing a sentence that violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). People v Steanhouse, 500 Mich 453, ___; ___ NW2d ___ (2017) (Docket Nos. 152671, 152849, 152871, 152872, 152873, 152946, 152947, 152948); slip op at 20. A sentence is unreasonable under Milbourn, 453 Mich at 636, if it is disproportionate to the seriousness of the circumstances surrounding the offense and offender, Steanhouse, 500 Mich at ___; slip op at 17.
The Trial Court Adequately Explained Its Decision on Remand. Defendant argues that the trial court's initial sentencing of defendant, and decision not to resentence defendant, was supported only by "generalizations" instead of the "particularized" reasoning required by People v Norfleet, 317 Mich App 649, 666; 897 NW2d 195 (2016). We disagree.
In Norfleet, the trial court simply mentioned that it "took into account defendant's background, his history, [and] the nature of the offenses involved." Id. (internal quotation marks omitted). Here, the trial court discussed defendant's background, history, and the nature of his offenses at the initial sentencing hearing. In accordance with Norfleet, the trial court also discussed each sentence separately. See id. On remand, the trial court reviewed the findings it made at the initial sentencing hearing and reviewed the record to reacquaint itself with the circumstances surrounding defendant's convictions. After this review, the trial court determined that it would have imposed the same sentence.
A sentencing court need only provide an "appropriate explanation" to justify its conclusions. Lockridge, 498 Mich at 398. Because we can clearly determine from the record the trial court's reasoning supporting its sentencing decisions, the record is sufficient to facilitate appellate review and defendant's claim of error is without merit.
The Trial Court's Denial of Resentencing Was Not an Abuse of Discretion. Defendant next argues that the trial court abused its discretion in denying defendant's request for resentencing. Again, we disagree.
Defendant argues that the trial court impermissibly scored his guidelines range under Lockridge by using judge-found facts, as opposed to jury-found facts, to calculate his offense variable scores. According to defendant, this impermissible judicial fact-finding increased his sentencing-guidelines range, such that, although the trial court sentenced defendant within the judicially determined guidelines range, defendant's sentence upwardly departed from the appropriate guidelines range, which he contends should be calculated with jury-found facts only. Under defendant's argument, the trial court's purported upward departure from a range calculated only with jury-found facts was excessive given his background and the circumstances surrounding his offenses. Therefore, defendant contends that his sentence is unreasonable under Lockridge, 498 Mich at 365, and that he is entitled to resentencing.
Nonetheless, defendant's argument suffers from a fatal error: when calculating a defendant's guidelines range, the trial court is permitted, and in fact required under Lockridge and its progeny, to engage in judicial fact-finding where appropriate. In Biddles, 316 Mich App at 158, this Court held,
The constitutional evil addressed by the Lockridge Court was not judicial fact-finding in and of itself, it was judicial fact-finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence range. Lockridge remedied this constitutional violation by making the guidelines advisory, not by eliminating judicial fact-finding.The Biddles court further stated that "judicial fact-finding remains part of the process of calculating the guidelines." Id. at 159. This "is evidenced by the Lockridge Court's observation that its holding . . . does nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not." Id. (internal quotation marks and citation omitted).
Therefore, the trial court could not have abused its discretion by scoring defendant's sentencing-guidelines range with judge-found facts because that is exactly what is required of the trial court under Lockridge. See also People v Stokes, 312 Mich App 181, 196; 872 NW2d 752 (2015). Defendant has not challenged the trial court's factual findings supporting its scoring of the guidelines. In fact, at the sentencing hearing, defendant affirmed that the guidelines range was scored properly. Accordingly, we conclude that the trial court's calculated range was not an abuse of discretion.
The trial court imposed a sentence within defendant's appropriately calculated guidelines range. Defendant's sentence is therefore presumed proportionate and must be affirmed on appeal absent other error. People v Jackson, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 332307); slip op at 8. Indeed, defendant has offered no compelling argument that his sentence is disproportionate to the seriousness of the circumstances surrounding him and his offenses. Defendant broke into a woman's home, threatened her with a sawed-off shotgun, bound her, and stole from her a substantial sum. The trial court's sentence, although near the upper end of the guidelines range, was not an abuse of discretion. Defendant is not entitled to resentencing.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey