Opinion
355692
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JERAMIAH MATTHEW HOP, Defendant-Appellant.
UNPUBLISHED
Barry Circuit Court LC No. 2020-000190-FH
Before: K. F. Kelly, P.J., and Boonstra and Redford, JJ.
PER CURIAM.
Defendant, Jeramiah Matthew Hop, appeals by delayed leave granted the trial court's judgment of sentence in which defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 10 to 15 years' imprisonment, with 30 days' jail credit, for defendant's plea-based conviction of drawing on insufficient funds, MCL 750.131. On appeal, defendant challenges the trial court's decision to depart from the sentencing guidelines, which would have put defendant in a sentencing range of 0 to 34 months' imprisonment. Defendant also contends that he was entitled to an additional 38 days of credit-68 days total-because he was unable to furnish bond while being held. Finding no errors warranting reversal, we affirm.
This Court initially denied defendant's application for delayed leave to appeal. People v Hop, unpublished order of the Court of Appeals, entered January 25, 2021 (Docket No. 355692). Defendant sought leave to appeal our denial with the Michigan Supreme Court which, in lieu of granting defendant's application, remanded the case to us "for consideration as on leave granted." People v Hop, 509 Mich. 917; 971 N.W.2d 223 (2022)
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from defendant's plea of no contest, as a fourth-offense habitual offender, to delivering a check with insufficient funds with intent to defraud in an amount greater than $500. The charge was based on information that, in October 2019, defendant wrote checks without sufficient funds to a Barry County lumber company totaling approximately $9,150.
Before defendant was arraigned on February 19, 2020, on the present charges, defendant was arrested on January 29, 2020, in Kent County on a larceny charge and, except for a total of seven days when he was transported and held in the Barry County jail for arraignment, plea, and sentencing in the instant case, defendant was held in the Kent County jail for his inability to post bond. On June 10, 2020, the trial court sentenced defendant to serve 10 to 15 years' imprisonment, with credit for 30 days spent in jail prior to sentencing.
The presentence investigation report (PSIR) showed that defendant had six prior felony convictions and 35 misdemeanors, and had served two prior prison terms for a 2010 conviction of driving with a suspended license (DWLS) and causing serious injury and a 2016 conviction of fraudulent use of a building contract fund. The PSIR indicated defendant spent 14 months in prison for the 2010 conviction and 15 months in prison for the 2016 fraud conviction. While on parole for the fraud conviction, defendant was also convicted of three charges of presenting a check with insufficient funds and three more DWLS charges. It appears that these checks were for amounts less than $500, but the PSIR also stated that four of defendant's prior felony convictions for checks greater than $500 were for the respective amounts of approximately $1,500, $3,000, $7,500, and $7,000, of which defendant paid none of the ordered restitution.
The PSIR also stated that at the time the report was prepared in March 2020, defendant pleaded guilty to common-law gross fraud, MCL 750.280, in Oceana Circuit Court on February 24, 2020, and was awaiting sentencing on that conviction. Defendant also had pending charges for larceny by conversion in Fruitport Township, presenting a check with insufficient funds in Muskegon Heights, and larceny by conversion in Kent County. The Sentencing Information Report calculated the sentencing guidelines' recommended minimum sentence range for the Class G crime to be 0 to 34 months.
When sentencing defendant, the trial court articulated its justification for departing from the recommended sentencing guidelines, stating:
This is to me another classic example of guidelines that need to be fixed. This is a person who has 6 prior felonies and 35 prior misdemeanors. This is a person that has stolen from many, many people, not just you. This a person that I do not believe one word he's saying about being a bad businessman. He's a thief. He's not a bad businessman, he's a thief. And the guidelines do not take into consideration white-collar crime nearly as significantly as they should. . . . [T]his is a significant hit on . . . a[n] established business. Can you imagine that hit on a business that's brand new or a business that's right on the border? It could put them . . . and he may have in the past put people out of business.
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[T]hese type of crimes to me are many times as or more significant than some assaultive type crimes. For instance, if you possess this much methamphetamine, a teeny, tiny bit of methamphetamine, you can do up to ten years in prison. This gentleman with 5 prior felonies and 35 prior misdemeanors, having been to prison before, on parole from prison, having multiple violations while on parole, is looking at zero to 34 months in prison. It's- It's not consistent.
In 2015 Michigan Supreme Court made it clear that the sentencing guidelines were advisory. A court is to look at four objectives in sentencing; rehabilitation, incapacitation while they undergo rehabilitation, deterrence, and punishment. I think when you look at every single one of those, every single one, they call for a significantly higher sentence than the guidelines here score.
The Court tells us sentences need to be proportionate to the crime viewed against the backdrop of the Defendant's criminal-history. The Defendant, as I said, has 6 prior felonies and 35 prior misdemeanors. In fact, in 2015, not long ago, for a contractor fraud case he was sent to prison, an opportunity for punishment, for rehabilitation, for deterrence. It clearly did not impact him not one iota. . . . He didn't take advantage of it for one second. Because while on parole-so we're not talking years later, this is just 2015, he gets out in 2017, just a couple years ago[.] While on parole we have a nonsufficient funds check in Muskegon; we have a driving license suspended-which again seem insignificant, but it shows a complete disregard for law and for rules-in Kent County; we have a nonsufficient funds check in Traverse City. See, what he does is he goes from county to county so as not to have too many crimes in any one county so it doesn't seem so bad to a particular judge, and so that maybe there's not communication. He has another driving license suspended. He has another nonsufficient funds check in Kent County. These are all while on parole. And then he has another operating without a license and driving license suspended in Ottawa County, all while on parole.
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He has pending charges in other counties. I'm sure they're waiting to see what we do here. In Oceana County he has a gross fraud charge that's pending. In Fruitport Township he has a larceny by conversion charge pending. In Muskegon . . . Heights he has a nonsufficient funds check case pending. And in Kent County he has a larceny of a motor vehicle or trailer case pending. This is a gentleman who has never been rehabilitable, [sic] I don't believe is rehabilitable, [sic] I don't think wants to be . . . rehabilitated. This is what he does. He's not a bad businessman, he's a bad criminal and he gets caught.
Given all of that, I think an upward departure is most reasonable completely. If there is gonna be rehabilitation, it's gonna take a long time and he's gonna have to take it serious, [sic] and the best place to do that is him in prison where he can't hurt people like you or the multiple other people that he's hurt. These are not mistakes, these are calculated crimes.
Deterrence. We've tried three years in prison; it didn't do it. Significantly more time is necessary if there is going to be deterrence, and there has to be punishment. It has to be clear, not only to the Defendant, but to folks in the community that we're gonna punish, we're not gonna allow him to steal and hurt people like you on a regular basis. That's just wrong, and that would be wrong on my part. Shame on me as a judge if I do not take care of the people in my community. Nine thousand dollars. That's significant. And you're a good established ongoing business.
As noted, defendant was sentenced to 10 to 15 years' imprisonment with credit for 30 days served. This appeal followed.
II. DEPARTURE SENTENCE
On appeal, defendant asserts that he is entitled to resentencing, in front of a different judge, because the court abused its discretion when it departed from the guidelines range of 0 to 34 months' imprisonment for defendant's conviction. Defendant claims the trial court abused its discretion because the court (1) relied on improper policy considerations when the court stated the guidelines needed to be "fixed"; (2) gave undue consideration to defendant's prior criminal record; and (3) otherwise did not justify the sentence given the seriousness of the crime. In light of the advisory nature of the sentencing guidelines and the considerable discretion trial court judges are given during sentencing, we disagree with defendant's arguments and affirm his sentence.
A. STANDARD OF REVIEW
Sentencing decisions are reviewed for an abuse of discretion. People v Steanhouse, 500 Mich. 453, 471; 902 N.W.2d 327 (2017). A sentence is an abuse of discretion if it is not" 'proportionate to the seriousness of the circumstances surrounding the offense or the offender.'" Id. at 474, quoting People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). While the sentencing guidelines are highly relevant and must be considered by a trial court when determining the reasonableness of a sentence, they carry no presumption that an out-of-guidelines sentence is unreasonable: "[T]he key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range." Steanhouse, 500 Mich. at 475 (quotation marks and citation omitted).
B. ANALYSIS
The statutory guidelines were enacted to promote proportionate sentences by incorporating this principle of proportionality through their use of offense variables and prior offense variables to calculate the recommended minimum sentence range. People v Smith, 482 Mich. 292, 305; 754 N.W.2d 284 (2008); People v Babcock, 469 Mich. 247, 263-264; 666 N.W.2d 231 (2003). The guidelines provide "objective factual guideposts that can assist sentencing courts in ensuring that the offenders with similar offense and offender characteristics receive substantially similar sentences." Smith, 482 Mich. at 309 (quotation marks and citations omitted). Under the former MCL 769.34(3), a trial court could depart from the guidelines' minimum sentence range only upon finding "substantial and compelling reason[s]" for the departure. Before Apprendi v New Jersey, 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), the general rule was that a sentence was required to be within the guidelines' range. Smith, 482 Mich. at 312.
In Apprendi, the United States Supreme Court held that the Sixth Amendment right to a jury trial requires that any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 476-480. In Alleyne v United States, 570 U.S. 99, 103; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), the Supreme Court expanded this holding to include any fact that increases the statutory minimum.
In People v Lockridge, 498 Mich. 358, 378-379; 870 N.W.2d 502 (2015), the Michigan Supreme Court held that the Legislature's sentencing guidelines violated the Sixth Amendment insofar as they "require[d] a court to increase a defendant's minimum sentence beyond the minimum sentence authorized by the jury's verdict alone." The Court rejected the argument that the Sixth Amendment was not violated because of the allowance for departures from the guidelines' recommendations, noting that a finding of substantial and compelling reasons for the departure must begin with the consideration of facts not decided by the jury. Id. at 388.
The Lockridge Court concluded that the appropriate remedy for the constitutional violation was to treat the guidelines as advisory only, such that courts were free to sentence outside the guidelines' minimum sentence range without finding and articulating "substantial and compelling" reasons for doing so, and that the standard of review for a sentence outside the range would be reasonableness. Lockridge, 498 Mich. at 392. However, the Court stressed that "[sentencing courts must . . . continue to consult the applicable guidelines range and take it into account when imposing a sentence." Id.
In Steanhouse, the Michigan Supreme Court undertook a further examination of "the proper standard to use to determine whether a defendant's departure sentence is so unreasonable as to constitute an abuse of the trial court's discretion and warrant reversal on appeal" (footnote omitted). Steanhouse, 500 Mich. at 471 (footnote omitted). The Court "reaffirmed] the proportionality principle adopted in Milbourn and reaffirmed in Babcock and Smith," noting that nothing in Lockridge "indicated we were jettisoning any of our previous sentencing jurisprudence outside the Sixth Amendment context Steanhouse, 500 Mich. at 473. However, the Court held that it would run afoul of the Sixth Amendment for the sentencing guidelines to carry a presumption that an out-of-guidelines sentence was disproportionate, noting that the United States Supreme Court had prohibited "presumptions of unreasonableness for out-of-guidelines sentences." Id. at 474. Accordingly, the Court disavowed the statement in Milbourn that an out-of-guidelines sentence should "alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme," while establishing as the appropriate standard the essential Milbourn inquiry into whether a sentence is "proportionate to the seriousness of the circumstances surrounding the offense or the offender." Steanhouse, 500 Mich. at 474 (quotation marks and citations omitted).
At the same time, the Court reaffirmed the Lockridge requirement that a trial court consult the guidelines and take them into account when sentencing:
We repeat our directive from Lockridge that the guidelines remain a highly relevant consideration in a trial court's exercise of sentencing discretion that trial courts must consult and take . . . into account when sentencing, and our holding from Milbourn that the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines recommended range. [Steanhouse, 500 Mich. at 474-475 (quotation marks and citations omitted.]
In People v Dixon-Bey, 321 Mich.App. 490, 524-525; 909 N.W.2d 458 (2017), this Court interpreted the requirement to "consult and take into account" the guidelines, stating:
Because the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a useful tool or guideposts for effectively combating disparity in sentencing. Therefore, relevant factors for determining whether a departure sentence is more proportionate than a sentence within the guidelines range continue to include (1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not considered by the guidelines, and (3) factors considered by the guidelines but given inadequate weight. When making this determination and sentencing a defendant, a trial court must justify the sentence imposed
in order to facilitate appellate review, which includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been. [Quotation marks and citations omitted.]
Other factors for the court to consider when departing from the guidelines "include the defendant's misconduct while in custody, the defendant's expressions of remorse, and the defendant's potential for rehabilitation." Id. at 525 n 9 (quotation marks and citations omitted).
Defendant contends that he is entitled to resentencing because the trial court's statement that the guidelines "need to be fixed" and "the guidelines do not take into consideration white-collar crime nearly as significantly as they should" was an impermissible policy disagreement with the Legislature. Accordingly, defendant argues that the trial court sentenced defendant on the basis of the court's belief that white collar crimes are not taken seriously enough by the penal code and not on the basis of anything particular about defendant or his crime.
For his part, defendant cites no case standing for the proposition that a sentencing court cannot express disagreements with the sentencing guidelines imposed by the Legislature. See People v Konopka, 309 Mich.App. 345, 366; 869 N.W.2d 651 (2015) ("An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority."). Such a consideration is at the very heart of the advisory nature of the guidelines. In People v Lydic, 335 Mich.App. 486, 501-502; 967 N.W.2d 847 (2021), we affirmed the trial court's decision to depart from the sentencing guidelines when sentencing the defendant. In Lydic, the trial court judge "expressed his disagreement with the scoring scheme in place for OV 7, which he viewed as an 'all or nothing' guideline because, when properly scored at 50 points, it placed defendant's guidelines range 'in a whole new ballpark.'" Lydic, 335 Mich.App. at 502. Despite the court's statement of disagreement with the Legislature's sentencing scheme, we affirmed the court's decision, stating:
[T]he trial judge expressed that while he was aware that he was imposing an out-of-guidelines sentence, he was of the view that the sentencing guidelines inaccurately reflected the seriousness of the crime and that the guidelines also failed to properly account for TK's conduct. [Id.]
Thus, it is clear that the concern is not with whether a particular trial court judge expresses a policy disagreement with the Legislature, but rather with whether the court imposes a sentence "proportionate to the seriousness of the circumstances surrounding the offense or the offender." Id. at 501 (quotation marks and citation omitted). Had the trial court justified its sentencing decision solely on its disagreement over the severity of punishment for white-collar crime, we would agree with defendant that such a justification would be insufficient to support a departure from the guidelines. As in Lydic, the trial court here knew it was imposing an out-of-guidelines sentence and did so because of its belief that the guidelines did not account for the harm defendant caused by defrauding a small business out of $9,000, nor did it account for defendant's criminal history or demonstrated lack of rehabilitation. Accordingly, we find no abuse of discretion flowing from the trial court's "policy" disagreements with the guidelines.
Defendant also contends that the trial court abused its discretion because it placed too much emphasis on his prior criminal record. Defendant argues that the sentencing guidelines already accounted for his criminal history when he was assessed points in the prior offense variable scoring. He asks this Court to consider his sentence in light of People v Beaty, 507 Mich. 1027; 961 N.W.2d 498 (2021), in which he claims the Michigan Supreme Court employed an "innovative approach to assessing departure sentences."
In Beaty, the Supreme Court, in lieu of granting leave, remanded the case to this Court for resentencing because "[t]he reasons given for the departure did not adequately account for the extent of that departure . . . ." Beaty, 507 Mich. at 1027. The Court explained:
[T]he trial court treated defendant as if his sentencing guidelines range was calculated from the B-V cell for Class A offenses, as is appropriate for Prior Offense Variable (PRV) Level B defendants [sic] scoring 80 to 99 Offense Variable (OV) points. Given that defendant actually scored 41 OV points and placed in the B-III cell, this departure represents at least an additional 39 OV points. In finding that the amount of drugs at issue and defendant's delivery of heroin after the victim's death was effectively equivalent to a 39-point OV increase, the trial court treated these circumstances as more serious than circumstances that would have resulted in a smaller OV-point increase. For example, having the mental state necessary for conviction of second-degree murder would only have resulted in a 25-point increase. [Citation omitted.]
We fail to see the relevance of Beaty to the case at bar. In Beaty, the Supreme Court remanded because the trial court failed to adequately justify its reason for departure on the basis of the quantity of drugs and the defendant's disregard for the victim. In contrast here, the trial court justified the reasons for its departure, specifically focusing on defendant's extensive history of committing fraud and other crimes, his lack of rehabilitation from previous convictions, evidenced by his continued criminal activity while probation, parole, and while awaiting other criminal charges. Thus, defendant's assertion that "[t]he trial court's sentence . . . cannot be justified solely on Mr. Hop's unscored criminal history" misstates the record. In light of defendant's tendency toward recidivism and the harm done by defendant's criminal fraudulent activity, the trial court did not abuse its discretion when it relied on defendant's criminal history, in addition to other factors, when departing from the guidelines.
Lastly, defendant argues that the court's sentence was unjustified because there was no evidence of malicious intent on defendant's behalf, claiming defendant "simply could not afford the bills his business had accumulated." According to defendant, other individuals who have been convicted of more serious fraud crimes have received far more lenient sentences. The trial court expressly rejected the assertion that defendant was simply a failed businessman, stating that defendant was not a "bad businessman" but rather a "thief." Defendant's criminal record supports the trial court's skepticism of defendant's motives behind the crimes.
The trial court here more than sufficiently explained why the sentence it selected better fit the crime and defendant than a sentence within the guidelines would have. See Smith, 482 Mich. at 304 ("A sentence cannot be upheld when the connection between the reasons given for departure and the extent of the departure is unclear."). The court explained that in departing from the guidelines, it was considering defendant and the crime in the context of "rehabilitation, incapacitation while they undergo rehabilitation, deterrence, and punishment." In doing so, the court justified why its sentence was "proportionate to the seriousness of the circumstances surrounding the offense or the offender." See Steanhouse, 500 Mich. at 474 (quotation marks and citations omitted). Noting that defendant, at the time of sentencing, had "6 prior felonies and 35 prior misdemeanors," the court explained that a sentence within the guidelines range would be insufficient to protect the community. In addition to defendant's prior record, while defendant was awaiting sentencing, he was facing charges in three other counties for larceny and fraud. It was also clear to the trial court that defendant was intentionally committing the crimes in different jurisdictions "so it doesn't seem so bad to a particular judge, and so that maybe there's not communication." The court continued:
If there is gonna be rehabilitation, it's gonna take a long time and he's gonna have to take it serious, [sic] and the best place to do that is him in prison where he can't hurt people like you or the multiple other people that he's hurt. These are not mistakes, these are calculated crimes.
In sum, the trial court adequately explained on the record why it departed from the guidelines and why the sentence was proportional to the crime and to defendant. Accordingly, the trial court did not abuse its discretion, and we affirm defendant's sentence.
Defendant also contends that he should be resentenced in front of a different judge. Because we conclude that defendant is not entitled to resentencing, we need not address this issue.
III. JAIL CREDIT
Defendant claims on appeal that the trial court erred when it failed to credit defendant with 68 days because between the time defendant was arraigned on the charges in this case to the time he was sentenced in Oceana County, he was unable to post bond. We disagree.
A. STANDARD OF REVIEW
"Whether a defendant is entitled to credit for time served in jail before sentencing is a question of law that we review de novo." People v Armisted, 295 Mich.App. 32, 49; 811 N.W.2d 47 (2011).
Defendant preserved this argument after this Court granted defendant's motion to remand the case to the trial court to file a motion to correct invalid sentence. The trial court denied the motion.
B. ANALYSIS
The relevant statute, MCL 769.11b, states:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
"[T]he sentencing credit provision in MCL 769.11b is mandatory, given the statute's use of the word 'shall.'" People v Seiders, 262 Mich.App. 702, 706; 686 N.W.2d 821 (2004). "MCL 769.11b does not, however, entitle a defendant to credit for time served before sentencing if he is incarcerated for an offense other than that for which he is ultimately convicted, or for other unrelated reasons." Id., citing People v Prieskorn, 424 Mich. 327, 340; 381 N.W.2d 646 (1985).
Defendant was first taken into custody on January 29, 2020, in Kent County on unrelated charges. Defendant was never able to post bond in Kent County, and while still in custody in Kent County, defendant was transferred to Barry County for arraignment on charges in this case on February 19, 2020. Finally, before defendant was sentenced in this or the Kent County cases, defendant was sentenced for a crime committed in Oceana County on April 28, 2020.
Under these facts, defendant is not entitled to jail credit for the time he spent between his arraignment on February 19, 2020, and his sentencing in Oceana County on April 28, 2020. During this period of time, defendant was not only serving time presentence for the offense of which he was convicted. See Prieskorn, 424 Mich. at341. Similar to a defendant who is incarcerated on other charges while awaiting sentencing in a separate case, defendant here was being held on separate charges from Kent County while awaiting sentencing in Oceana County. See People v Raisbeck, 312 Mich.App. 759; 882 N.W.2d 161 (2015) (concluding the defendant was not entitled to credit while awaiting charges because she was already incarcerated for false pretenses conviction). In other words, had defendant posted bond in this case, he would have not been released because of his inability to furnish bond in a case for which he was already being held before the present case began. Accordingly, the trial court did not err when it denied defendant's motion to correct an invalid sentence.
Affirmed.