Opinion
No. 347859
02-25-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHELLE LEE HOLDER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court
LC No. 16-018001-FH Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Defendant appeals by delayed leave granted the order revoking her probation and sentencing her to 24 to 48 months' imprisonment. On May 25, 2016, defendant pled guilty to one count of illegal use of a financial transaction device, MCL 750.157q. Her guidelines minimum sentence range was 0 to 9 months. The trial court sentenced her to five years' probation, MCL 771.2(1), with the first six months to be served in jail. Defendant repeatedly violated the terms of her probation, and on October 9, 2018, defendant pled guilty to her fifth probation violation. The trial court revoked her probation and sentenced her to 24 to 48 months' imprisonment, MCL 771.4, with credit for the six months she spent in jail. We affirm.
People v Holder, unpublished order of the Court of Appeals, Docket No. 347859, entered April 4, 2019.
I. BACKGROUND
On March 16, 2016, defendant found a credit card belonging to someone else in a parking lot. Defendant subsequently used the credit card at two different locations, spending a total of $475.98. Defendant was arrested just over a month later. She was charged with three counts of illegal use of a financial transaction device, MCL 750.157q, and one count of stealing or retaining a financial transaction device without consent, MCL 750.157n(1). Defendant entered a plea of guilty to one count of illegal use of a financial transaction device, and the other charges were dismissed. Defendant's sentencing guidelines minimum range was 0 to 9 months in jail. The trial court sentenced her to five years of probation with the first six months to be served in jail. Over the course of the next two years, defendant violated probation by using drugs and failing to attend Narcotics Anonymous (NA) meetings or outpatient treatment. On October 9, 2018, defendant pled guilty to her fifth probation violation. At sentencing, the trial court revoked probation and sentenced defendant to 24 to 48 months' imprisonment, with credit for 205 days served. This Court granted defendant's delayed application for leave to appeal. Defendant argues that the trial court failed to consider and apply the sentencing guidelines when it imposed her sentence and that the resulting sentence is unreasonable and an abuse of the trial court's discretion.
II. STANDARD OF REVIEW
"If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made." MCL 771.4. The legislative sentencing guidelines apply to sentences imposed after a probation revocation. People v Hendrick, 472 Mich 555, 560; 697 NW2d 511 (2005). A defendant sentenced after probation is revoked is entitled to credit for any time spent actually incarcerated, whether in jail or in prison, as part of that probation. See People v Sturdivant, 412 Mich 92, 97-98; 312 NW2d 622 (1981). However, the defendant is not entitled to credit for any time not spent incarcerated. See People v Jaynes, 23 Mich App 360, 361-362; 178 NW2d 558 (1970), implicitly overruled in part by Sturdivant. Thus, the revocation of probation "clears the way for a resentencing on the original offense." Hendrick, 472 Mich at 562 (quotation marks and citation omitted). On resentencing, the trial court "is not required to sentence the defendant in the same manner" and may consider not only the information available at the original sentencing, but also the defendant's conduct while on probation. Id. at 562-563. The trial court must consider and account for the applicable guidelines range, but our review is for reasonableness and proportionality, provided the guidelines were correctly scored and the trial court justified why any departure from the guidelines was reasonable. People v Lockridge, 498 Mich 358, 364-365, 392; 870 NW2d 502 (2015); People v Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017). "A sentence cannot be upheld when the connection between the reasons given for departure and the extent of the departure is unclear." People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008).
III. SENTENCING GUIDELINES
Defendant first argues that at sentencing, the trial judge stated that "it is true that your guidelines are 0 to 9, but at a probation violation hearing sentencing [sic], the guidelines do not apply," contrary to the holding in Hendrick, 472 Mich at 560. Defendant accurately recites the trial court's statement on the record. However, when the trial court's statement is placed in its proper context, the trial court clearly understood and applied the law correctly.
First, as noted, sentencing courts are required to score the guidelines properly and consider them when imposing a sentence. However, the sentencing guidelines are only advisory and are not binding. The trial court would be correct to state that it was not bound by the guidelines. The trial court's phrasing may have been somewhat susceptible to misunderstanding, but it is also not entirely incorrect. In People v Hegwood, 465 Mich 432, 434-440; 636 NW2d 127 (2001), our Supreme Court held that the defendant was entitled to resentencing where the sentencing court flagrantly disregarded the statutory sentencing guidelines altogether. Furthermore, at the time Hegwood was decided, the legislative sentencing guidelines had just been enacted and were still considered to carry the force of law. In that case, the sentencing judge literally stated that it "could care less" what the Legislature required. Id. In contrast, the trial court's statement here was at worst ambiguous.
More importantly, the trial court clearly did take defendant's sentencing guidelines range into account, as was required. The trial court specifically indicated its awareness that the applicable minimum range was 0 to 9 months. The trial court did so in the context of explaining in detail its concerns about defendant's poor performance while on probation and why it felt a more severe sentence was warranted. The record shows that the trial court correctly recognized that it was required to consider the sentencing guidelines, that it did so, and that it explained why it believed an upward departure from the guidelines range was appropriate. The trial court was not required to "articulate a substantial and compelling reason for that departure," Lockridge, 498 Mich at 364-365, but merely justify the sentence sufficiently to permit appellate review. Id. at 392. The trial court carefully and completely performed its duties, and defendant is not entitled to resentencing merely because one of the trial court's remarks could be misunderstood when taken out of context.
IV. REASONABLENESS
Defendant also argues that the trial court abused its discretion by imposing a sentence outside the applicable guidelines range. We disagree.
As noted, defendant's sentencing guidelines minimum range was 0 to 9 months in jail, and the trial court imposed a minimum sentence of 24 months. Thus, defendant's minimum sentence is almost three times the high end of the guidelines range. The trial court recognized that it was imposing a departure sentence and explained why it believed the departure was warranted. We therefore review defendant's ultimate sentence for reasonableness and proportionality.
The statutory maximum sentence for illegal use of a financial transaction device is 48 months. MCL 777.16h.
The trial court explained that while on probation, defendant tested positive for illegal drugs on numerous occasions and failed to attend NA meetings. Specifically, defendant's first probation violation occurred when she lied to her probation officer about her use of illegal drugs. One month later, defendant admitted that her abuse of drugs continued and she was ordered to attend 90 NA meetings. After defendant failed to attend the NA meetings, she was ordered to attend an additional 30 meetings. Defendant's fourth probation violation occurred when she again tested positive for illegal drugs and she was ordered to complete a substance abuse program. However, defendant was terminated from the program after missing three meetings. After defendant was terminated, she absconded from supervision and could not be arraigned the day after her arrest because she was detoxing. Given defendant's numerous probation violations, and the nature of the violations, including absconding, the court did not abuse its discretion when it concluded that an upward sentence departure was warranted.
The court also adequately explained why this particular departure sentence was more proportionate than a sentence falling within the minimum sentencing guidelines range. At sentencing, the court referenced the probation violation report, which stated that "defendant refuses to obtain employment, remain sober, or make payments. She has a very low chance to successfully complete her term of probation given the fact that this is her 5th violation of probation." The report further stated that "she refuses to abide by her terms of probation as demonstrated by her actions and is not a good candidate for further community supervision." The trial court observed that defendant had already been sent to jail and treatment for her earlier probation violations. The court also recounted defendant's promises at the beginning of the case to take responsibility, attend to her problems, and get her life in order. The trial court noted that defendant "asked for one more chance," but at this point had "been given so many opportunities" that defendant was clearly not capable of keeping those promises. Finally, the trial court explained that the purpose of sentences was in part to serve as a message to others. Thus, the trial court concluded that a term of imprisonment was a regrettable necessity and possibly the only way to force defendant "to get [her] life back." We are unable to find defendant's sentence to be disproportionate or that the trial court abused its discretion.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel