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holding that 10 points were properly assessed for OV 9 where "at least three people were near defendant when he drew a knife and began swinging it"; "although [the victim] was the only person stabbed, at least two other people were placed in immediate danger of physical injury or loss of life and [were] thus victims for the purpose of scoring OV 9"
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No. 330144.
04-20-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Robert Louis WALDEN, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the people. Law Office of John D. Roach, Jr., PLC (by John D. Roach, Jr. ), for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the people.
Law Office of John D. Roach, Jr., PLC (by John D. Roach, Jr. ), for defendant.
Before: O'Connell, P.J., and Gleicher and Boonstra, JJ.
Boonstra, J.Defendant appeals by right his conviction, following a jury trial, of voluntary manslaughter, MCL 750.321. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 120 to 270 months' imprisonment. The issues raised on appeal relate only to defendant's sentence. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This appeal arises out of the fatal stabbing of Bryan Allen on October 1, 2014, in the 300 block of Almyra Avenue in Monroe, Michigan. Derek Brown testified that at 9:30 p.m. or 10:00 p.m., he and Allen were on Almyra Avenue, playing on their cellular telephones, with their backs to a group of people engaged in an ongoing altercation nearby.
Brown testified that defendant came up suddenly behind them and said, "I got something for you." Defendant then threw a jacket over Allen's face and made two "motions" towards Allen's abdomen. Brown assumed that defendant had punched Allen. Allen pushed the jacket off him, and defendant "peeled off" in a car parked a couple of feet away. Allen, perhaps not realizing he had been stabbed, told Brown, "come on, let's go," and the two walked across the street and through a backyard on their way to Allen's mother's home. On the way, Allen told Brown that he was "messed up," claimed that defendant had stabbed him, and fell to the ground. Brown pulled up Allen's shirt, which was soaked with blood, and observed Allen's intestines hanging out. Brown began calling for help. Three people unknown to Brown came to assist. A truck then pulled up, and by Brown's recollection, three individuals loaded Allen into the truck and rushed him to Mercy Hospital. Allen succumbed to his injuries and died that night.
Defendant testified that at around 9:30 p.m. or 10:00 p.m., he went to Almyra Avenue to gamble. When he arrived in his girlfriend's car, roughly 10 to 15 people were in the street shooting dice. Defendant testified that a participant in the dice game, Kelly Aaron, "jumped" him, punched him, kicked him, and stomped on his head. According to defendant, he was able to escape with the assistance of another participant in the dice game, but Aaron followed him, hitting him, punching him, and chasing him around the car. Allen and Brown then "walked up" on defendant, and defendant pulled out a pocketknife for protection because he was afraid for his life. Being surrounded, defendant began to "sling," or wave, the pocketknife around to keep people back. Defendant did not think that he hit anyone with the knife. Eventually, defendant was able to get into the car, which he dropped off at the home of a friend of his girlfriend. Defendant then paid an unknown individual to take him to Detroit. On the way, defendant threw his pocketknife out the window. Defendant learned later that night that Allen had died.
Defendant was convicted as described earlier. At sentencing, the trial court assessed 10 points for offense variable (OV) 9 (number of victims). The trial court also departed upward by 13 months from the advisory minimum sentencing guidelines range, stating in support of the departure:
In this matter the sentencing guidelines are 43 to 107 months as ... both attorneys have indicated. It's advisory at this point in time given [ People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015) ]. [Defendant] had three misdemeanors but he was out on bond for aggravated assault at the time this thing occurred. ... [T]he jury didn't buy the self[-]defense argument and I don't buy the self[-]defense argument.
* * *
Now, the Lockridge case says that I don't have to find a substantial and compelling reason to deviate from the guidelines anymore or I don't have to elucidate those reasons. However, I think just a couple of things that came out in trial; you testified yourself ... that you got stabbed four times. I don't know if that's true or not true but I don't know why in God's name you'd be carrying a knife if you were the victim of being stabbed before.
Once this thing took place there was immediately [sic] leaving the scene, changing the cars and as [the prosecutor] pointed out because it struck me as well, you were driven to Detroit by an anonymous or random person, which I don't believe in a million years. I don't think you told the truth there and I don't think you really told the truth about the facts and circumstances as they went down at the time.
All lives do matter. Bryan Allen will not see his child graduate from high school, get married, do all the things that you're still going to have an opportunity
no matter what I do, you're still going to have an opportunity to see your children do. And that's just not right and that's just not fair but I can't make that right and I can't make it fair.
This appeal followed.
II. OFFENSE VARIABLE 9
Defendant argues that the trial court incorrectly assessed 10 points for OV 9. The substance of defendant's argument is that because there was only one victim, Allen, OV 9 should have been scored at zero points. We disagree.
We review the trial court's factual determinations regarding an OV score for clear error; such determinations must be supported by a preponderance of the evidence. People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by the statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which [this Court] reviews de novo." Id.
MCL 777.39 governs the scoring of OV 9, providing in pertinent part as follows:
(1) Offense variable 9 is number of victims. Score offense variable 9 by determining which of the following
apply and by assigning the number of points attributable to the one that has the highest number of points:
* * *
(c) There were 2 to 9 victims who were placed in danger of physical injury or death ...... 10 points
(d) There were fewer than 2 victims who were placed in danger of physical injury or death ...... 0 points
(2) All of the following apply to scoring offense variable 9:
(a) Count each person who was placed in danger of physical injury or loss of life or property as a victim.
Because it is not evident from the formatting, we note that language not relevant to this case has been omitted from our quotation of MCL 777.39(1)(c) and (d).
Under MCL 777.39(2)(a), each person who was placed in danger of physical injury or loss of life is considered a victim for the purposes of scoring OV 9. People v. McGraw, 484 Mich. 120, 128–129, 771 N.W.2d 655 (2009). See also People v. Sargent, 481 Mich. 346, 350 n. 2, 750 N.W.2d 161 (2008) (stating that "in a robbery, the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present at the scene of the robbery who were placed in danger of injury or loss of life").
The facts in this case support the trial court's determination that more than one victim was placed in danger of physical injury or loss of life. Witnesses testified that several men were gambling in a dice game when the altercation between defendant and Aaron began. By defendant's own testimony, at least three people were near defendant when he drew a knife and began swinging it for protection so that he could get into his car and leave. Therefore, although Allen was the only person stabbed, at least two other people were placed in immediate danger of physical injury or loss of life and are thus victims for the purpose of scoring OV 9. MCL 777.39(2)(a) ; Sargent, 481 Mich. at 350 n. 2, 750 N.W.2d 161. Accordingly, defendant was properly assessed 10 points for OV 9, because between two and nine victims were placed at risk of physical injury or loss of life. MCL 777.39(1)(c). Because defendant's OVs were scored on the basis of accurate information, he is not entitled to resentencing. People v. Francisco, 474 Mich. 82, 88, 711 N.W.2d 44 (2006).
III. UPWARD SENTENCING DEPARTURE
Defendant also argues that his sentence was procedurally and substantively unreasonable under MCL 769.34(3)(b) and, accordingly, that he is entitled to have his case remanded for resentencing. We disagree. There are no special steps that a defendant must take to preserve the question whether the sentence was proportional; a defendant properly presents the issue for appeal by providing this Court a copy of the presentence investigation report. People v. Cain, 238 Mich.App. 95, 129, 605 N.W.2d 28 (1999), citing MCR 7.212(C)(7) ; see also People v. Oswald, 208 Mich.App. 444, 446, 528 N.W.2d 782 (1995). Further, there is no preservation requirement when the trial court imposes a sentence more severe than sentencing guidelines recommend. People v. Smith, 482 Mich. 292, 300, 754 N.W.2d 284 (2008). We review a trial court's upward departure from a defendant's calculated guidelines range for reasonableness. Lockridge, 498 Mich. at 391–392, 870 N.W.2d 502 (2015). We review the reasonableness of a sentence for an abuse of the trial court's discretion. See People v. Steanhouse, 313 Mich.App. 1, 44–47, 880 N.W.2d 297 (2015), lv. gtd. 499 Mich. 934, 879 N.W.2d 252 (2016), citing People v. Milbourn, 435 Mich. 630, 634–636, 461 N.W.2d 1 (1990). We conclude from the circumstances of this case, the record, and the trial court's statements during sentencing, that the sentence imposed was reasonable.
MCL 769.34(3)(b) states:
The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.
We first reject defendant's initial contention that his sentence is procedurally unreasonable because OV 9 was incorrectly scored, and that his total OV score is therefore incorrect. As discussed earlier, OV 9 was properly scored. Even if defendant's position had merit, his total OV score would only drop from 100 points to 90 points, which would not have any effect on his guidelines minimum sentence range.
With regard to defendant's claim that his sentence was substantively unreasonable, our Supreme Court in Lockridge, 498 Mich. at 364–365, 870 N.W.2d 502, rendered the Michigan sentencing guidelines advisory. Additionally, the Court in Lockridge determined that trial courts are no longer required to articulate substantial and compelling reasons to depart from the minimum sentencing guidelines range; rather, the sentence must only be reasonable. Id. at 391–392, 870 N.W.2d 502. This Court has stated that a sentence is reasonable under Lockridge if it adheres to the principle of proportionality set forth in Milbourn. Steanhouse, 313 Mich.App. at 47–48, 880 N.W.2d 297. "[T]he principle of
Our Supreme Court has granted leave to appeal in Steanhouse and in People v. Masroor, 313 Mich.App. 358, 880 N.W.2d 812 (2015), and directed the parties in those cases to address the following issues:
(1) whether MCL 769.34(2) and (3) remain in full force and effect where the defendant's guidelines range is not dependent on judicial fact-finding, see MCL 8.5 ; (2) whether the prosecutor's application asks this Court in effect to overrule the remedy in [Lockridge, 498 Mich. at 391, 870 N.W.2d 502 ], and, if so, how stare decisis should affect this Court's analysis; (3) whether it is proper to remand a case to the circuit court for consideration under Part VI of this Court's opinion in [Lockridge ] where the trial court exceeded the defendant's guidelines range; and (4) what standard applies to appellate review of sentences following the decision in [Lockridge ]. [People v. Steanhouse, 499 Mich. 934, 879 N.W.2d 252 (2016).]
The Supreme Court heard oral argument in those cases on January 10, 2017. The Supreme Court has not yet issued a ruling that would clarify the standard for assessing the reasonableness of a departure sentence post-Lockridge.
proportionality ... requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Milbourn, 435 Mich. at 636, 461 N.W.2d 1. Put another way, "the [trial] judge ... must take into account the nature of the offense and the background of the offender." Id. at 651, 461 N.W.2d 1. As our Supreme Court has stated:
[D]epartures [from the minimum sentencing guidelines] are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing.... [T]rial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. [ Id. at 657.]
Factors that may be considered by a trial court under the proportionality standard include, but are not limited to:
(1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relationship
between the victim and the aggressor, the defendant's misconduct while in custody, the defendant's expressions of remorse, and the defendant's potential for rehabilitation. [ Steanhouse, 313 Mich.App. at 46, 880 N.W.2d 297 (citations omitted).]
In this case, defendant was sentenced on August 6, 2015, after Lockridge was decided by our Supreme Court. The trial court in fact made specific reference to Lockridge, and it therefore was fully aware that any sentencing departure was subject to a reasonableness requirement. The guidelines minimum sentencing range was 43 to 107 months' imprisonment. The trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to a minimum term of 120 months' imprisonment, a departure of 13 months over the maximum minimum sentence of 107 months.
Considering the modest nature of the upward departure, the trial court's statements in support of the sentence, and the record, we conclude that the trial court did not abuse its discretion and that the sentence imposed satisfied the requirement that a sentencing departure be "proportionate to the seriousness of the circumstances of the offense and the offender." Milbourn, 435 Mich. at 636, 461 N.W.2d 1. The trial court noted the seriousness of the offense as well as several factors not accounted for in the guidelines, relating in part to defendant's low potential for rehabilitation and lack of remorse. The court noted, for example, that defendant was on bond for aggravated assault at the time he committed the instant offense. Indeed, defendant was not merely "on bond"; rather, he was on bond for aggravated assault, and the record reflects that defendant posted a bond on that earlier aggravated assault charge on September 26, 2014, and that he committed the instant offense a mere five days later. And this current offense is a homicide carried out by way of yet another assault, this one carried out with a knife (notwithstanding that defendant claimed to have himself been the victim of multiple stabbings) with such a level of vicious brutality as to physically disembowel (and cruelly end the life of) his victim. The trial court additionally noted that defendant immediately fled the scene, switched cars, and claimed to have been driven to Detroit by an individual he could not identify. The trial court expressed its belief that defendant had not given truthful testimony regarding the events that had occurred.
Although MCL 777.56 provides for the scoring of points for an offender on bond awaiting sentencing for a felony or misdemeanor, and defendant was scored 5 points for this under Prior Record Variable (PRV) 6, the trial court clearly felt this factor was given inadequate weight.
The record further reflects that defendant, by the age of 21, had a criminal history composed of three prior adult convictions (not including the aggravated assault charge for which he was on bond at the time of the current offense, for which charge defendant escaped prosecution in light of his manslaughter conviction in this case), and three juvenile convictions (not including one additional charge for which defendant was granted diversion). This was therefore his ninth charged criminal offense. At the time of his arrest, he was also subject to an active personal protection order securing the protection of the mother of his children.
The prosecution recommended an upward departure sentence of 180 to 270 months, substantially greater than that imposed by the trial court, offering the following reasons:
1) many @ scene sought help for the deceased—NOT [DEFENDANT] (FAILURE TO HELP TAKES AWAY FROM CLAIM OF ACCIDENT/SELF-DEFENSE)
2) every reasonable "OV" total well over 75 points—the maximum
3) it is one thing to run from the scene—it is another to "switch cars" and hide out in another city [and be driven by a "random person".] here OV 19 clearly given "inadequate" weight
4) trial testimony of defendant
5) deterrence of "street crime" where witnesses often do not come forward. [Bracketed phrase in original.]
In relation to the prosecution's recommendation, the upward departure imposed was modest indeed.
For all these reasons, and although the trial court did not explicitly refer to the principle of proportionality, we conclude under the circumstances presented that its decision conformed to the law as articulated in Milbourn, that the sentence was proportional under Milbourn, and accordingly that it was reasonable under Lockridge. Therefore, defendant is not entitled to resentencing on the ground that his sentence was unreasonable.
With due respect to our partially dissenting colleague, we conclude that the trial court's articulation of departure reasons was sufficient and was appropriately directed to proportionality principles, and that the reasonableness of the departure sentence imposed was more than supported by the record. Moreover, notwithstanding the dissent's characterization, our review, as stated at the outset of this opinion, is for an abuse of discretion. Indeed, Lockridge expandeda trial court's sentencing discretion, subject to reasonableness review. Greater trial court discretion constricts an appellate court's wherewithal to find an abuse of discretion. We therefore remain true to the abuse of discretion standard and are not, as the dissent suggests, "employing a form of de novo review."Finally, we note that defendant did not raise a challenge to his sentence based on Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in either the trial court or this Court. Any such challenge would be unpreserved and reviewed for plain error affecting defendant's substantial rights. Lockridge, 498 Mich. at 392–393, 870 N.W.2d 502. Such a challenge would not in any event be legitimate because the trial court sentenced defendant with full knowledge of Lockridge and the advisory nature of the guidelines, and a change in the scoring of OV 9 would not alter the applicable guidelines minimum sentencing range. And there can be no plain Lockridge error when there was an upward departure. Lockridge, 498 Mich. at 395 & n. 31, 870 N.W.2d 502. We therefore conclude that the Crosby remand procedure outlined in Lockridge is not required in this case. Were we to determine that defendant's sentence was unreasonable, we would instead vacate that sentence and remand for resentencing, but because we find the departure reasonable, we affirm.
United States v. Crosby, 397 F.3d 103 (C.A. 2, 2005).
Affirmed.
O'Connell, P.J., concurred with Boonstra, J.
Gleicher, J. (concurring in part and dissenting in part).
The majority makes a compelling case in support of the reasonableness of the "modest" departure sentence imposed in this case. It may well be that a poll of the judges on this Court would yield unanimous agreement that the departure sentence was thoroughly reasonable. My respectful disagreement centers on the rule of decision guiding the majority's analysis and the standard of review the majority has employed.The majority concedes that the principle of proportionality supplies the analytical framework that a trial judge must use when imposing a departure sentence. People v. Smith, 482 Mich. 292, 303, 754 N.W.2d 284 (2008). And although the majority doesn't explicitly say so, I assume that it would agree that "sentencing courts must justify the sentence imposed in order to facilitate appellate review." People v. Lockridge, 498 Mich. 358, 392, 870 N.W.2d 502 (2015). These precedents demand that a trial court justify a departure sentence by explaining why the sentence selected better fits the crime and the offender than would a guidelines sentence.
Here, the trial court failed to reference any grounds relevant to the principles of proportionality when it departed from the guidelines range. While I agree that OV 9 was correctly scored, I would remand for resentencing, tasking the trial court to explain why the departure sentence it imposed is more proportionate to the offense and the offender than a sentence within the guidelines. Further, I suggest that the majority has substituted its own well-crafted rationale for a departure sentence in place of the trial court's patently deficient explanation. A remand would permit us to approach defendant's sentence in a manner more consistent with our role.
I
The majority acknowledges that before departing from the minimum sentencing guidelines range, a trial court must engage in at least some reasoning consistent with the "principle of proportionality" set forth in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). Our Supreme Court highlighted the integral role of proportionality analysis in People v. Babcock, 469 Mich. 247, 262, 666 N.W.2d 231 (2003) :
In determining whether a sufficient basis exists to justify a departure, the principle of proportionality—that is, whether the sentence is proportionate to
the seriousness of the defendant's conduct and to the defendant in light of his criminal record—defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed.
Although the Supreme Court has eliminated "the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure," Lockridge, 498 Mich. at 364–365, 870 N.W.2d 502, the Court did not endorse unexplained departures or departures predicated on improper grounds. Logically, a departure sentence lacking a pertinent rationale is unreviewable for reasonableness or for an abuse of discretion. "[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result." United States v. Martin, 520 F.3d 87, 96 (C.A. 1, 2008).
The trial court explained the rationale for defendant's departure sentence as follows:
In this matter the sentencing guidelines are 43 to 107 months as ... both attorneys have indicated. It's advisory at this point in time given the Lockridge case. [Defendant] had three misdemeanors but he was out on bond for aggravated assault at the time this thing occurred. ... [T]he jury didn't buy the self[-]defense argument and I don't buy the self[-]defense argument. You know, it just doesn't make sense. I'm really disappointed that we didn't have more people come forward and testify. I don't why [sic] they didn't. [Defense counsel] speculated why they might not have but as [the prosecutor] indicated all lives matter and it's disappointing that they didn't come here
and tell the truth. Not testifying for one person or the other, but just tell the truth as to what happened.
Now, the Lockridge case says that I don't have to find a substantial and compelling reason to deviate from the guidelines anymore or I don't have to elucidate those reasons. However, I think just a couple of things that came out in trial; you testified yourself ... that you got stabbed four times. I don't know if that's true or not true but I don't know why in God's name you'd be carrying a knife if you were the victim of being stabbed before.
Once this took place there was immediately [sic] leaving the scene, changing the cars and as [the prosecutor] pointed out because it struck me as well, you were driven to Detroit by an anonymous or random person, which I don't believe in a million years. I don't think you told the truth there and I don't think you really told the truth about the facts and circumstances as they went down at the time.
All lives do matter. [The victim] will not see his child graduate from high school, get married, do all the things that you're still going to have an opportunity no matter what I do, you're still going to have an opportunity to see your children do. And that's just not right and that's just not fair but I can't make that right and I can't make it fair.
The court advanced four general reasons for departing from the guidelines: (1) defendant had three misdemeanor convictions and "was out on bond for aggravated assault at the time this thing occurred," (2) "I don't know why in God's name you'd be carrying a knife if you were the victim of being stabbed before," (3) "I don't think you really told the truth about the facts and circumstances as they went down at the time," and (4):
All lives do matter. [The victim] will not see his child graduate from high school, get married, do all the things
that you're still going to have an opportunity [to do]. And that's just not right and that's just not fair but I can't make that right and I can't make it fair.
Lockridge commands us to review a departure sentence for "reasonableness." Lockridge, 498 Mich. at 392, 870 N.W.2d 502. We measure "reasonableness" against the principles of proportionality detailed in Milbourn and Babcock, bearing in mind that the guidelines themselves incorporate proportionality principles and define the presumptively reasonable sentence range. Babcock, 469 Mich. at 263–264, 666 N.W.2d 231. We conduct this reasonableness review under an abuse of discretion standard. A trial court abuses its discretion when it misinterprets or misapplies the law. See Bynum v. ESAB Group, Inc., 467 Mich. 280, 283, 651 N.W.2d 383 (2002) (stating that an abuse of discretion occurs when the trial court "misapprehends the law to be applied").
In applying the principles of proportionality, a departing court's reliance on facts subsumed within a defendant's guidelines score is misplaced:
[D]epartures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing. For example, as the dissent points out, a sentencing judge could legitimately depart from the guidelines when confronted by the unlikely prospect of a one hundred-time repeat offender, since the guidelines do not take such extensive criminal records into account. In addition, we emphasize that the guidelines should continue to reflect actual sentencing practice. To require strict adherence to the guidelines would effectively prevent their evolution, and, for this reason, trial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. [ Milbourn, 435 Mich. at 657, 461 N.W.2d 1.][ ]
In this same vein, the Milbourn Court quoted approvingly from Judge Shepherd 's concurring opinion in People v. Rutherford, 140 Mich.App. 272, 280–281, 364 N.W.2d 305 (1985) :
"If the guidelines did set binding limits on the trial court's discretion, I would be constrained to remand when the judge states reasons for departing from the guidelines which are already considered therein. The problem we face in these cases is that the guidelines include factors such as the severity of the offense, the past record of the defendant, and the sentences historically imposed throughout the state. If the trial judge justifies a departure from the guidelines by stating that he does so because of the nature of the offense and the record of the offender, the trial court has considered these factors twice. If we say that the trial judge may, in an individual case, place greater emphasis on any given factor by simply announcing on the record his intention to do so, the guidelines become nothing more than a litany of magic words used to mask the imposition of subjective, arbitrary and disparate sentences—the very problem which ... the guidelines were designed to eliminate. If the sentencing judge is not held to have abused his discretion by emphasizing a factor already included in the guidelines as a basis for departing from them, and if the record is devoid of evidence showing whether a sentence beyond the guidelines is disparate, we are furnished with no basis other than our own subjective reactions upon which to base a decision. The risk of imposing an arbitrary and disparate sentence is thus shifted from the trial courts to the Court of Appeals." [Milbourn, 435 Mich. at 658–659, 461 N.W.2d 1.]
--------
MCL 769.34(3)(b) similarly provides:
The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from facts contained in the court record ... that
the characteristic has been given inadequate or disproportionate weight.
Here, the trial court relied on facts either accounted for by the guidelines or irrelevant to the principles of proportionality.
Under PRV 5, defendant received 10 points for having three or four prior misdemeanor convictions. Under PRV 6, five points were scored because defendant was on bond and awaiting adjudication for a misdemeanor at the time he committed the sentencing offense. Perhaps these scores do not adequately account for the egregiousness of defendant's prior record. However, the trial court offered no reasoning that would allow us to reach that conclusion. The majority concedes this fact but deliberately ignores it; in the majority's view, "the trial court clearly felt this factor was given inadequate weight." I decline to read the trial court's mind or put words in its mouth, and respectfully suggest that doing so contravenes our standard of review. How can we determine whether the trial court abused its discretion when we do not know how it weighed the facts and how the facts bore on the nature of the offense and offender?
Under OV 1, defendant was scored 25 points for having stabbed the victim (the highest score available for that variable), and under OV 2, five points were assessed because defendant used a knife. Given that defendant's possession of a knife was accounted for in the guidelines (not once, but twice), what made this fact especially relevant to the seriousness of the offense or the character of the offender? The trial court has not told us. It's not our job to guess, as doing so resembles de novo rather than discretionary review.
The trial court's third ground for departure was that it did not believe defendant's testimony. I would hold that without further elaboration, this constitutes an improper ground for departure, as the court failed to explain whether defendant willfully offered false testimony that was material to the case. See People v. Adams, 430 Mich. 679, 693, 425 N.W.2d 437 (1988). The jury apparently credited defendant's testimony to some extent, as it convicted defendant of voluntary manslaughter rather than murder. The trial court did not explain why its disbelief of defendant's testimony demonstrated that defendant was incorrigible or harbored some other relevant character flaw. Finally, the trial court's statement prefaced with "all lives do matter" touches on the seriousness of the offense. But the same statement can be made in all homicide cases, and in my view these feelings do not supply a proper ground for departure from the sentencing range selected by the Legislature.
II
Further, I respectfully disagree with the majority's determination that the departure sentence is reasonable. Absent any reasoning consistent with appropriate grounds for departure, I would hold that we have nothing to review.
It is the trial court's responsibility to justify a departure sentence. We review the court's rationale under an abuse of discretion standard, focusing on the sentence's reasonableness. Lockridge, 498 Mich. at 392, 870 N.W.2d 502. When there is no explanation for a departure that qualifies as relevant, there has been an abuse of discretion. Unlike the majority, I would refrain from finding a departure sentence reasonable by employing a form of de novo review to fill in the yawning gap created by the trial court's failure to explain its rationale in a legally appropriate manner. The majority implies that we may circumvent the trial court's omission by speaking for the trial court, supplanting an inadequate record with our subjective view of the reasonableness of defendant's sentence. As appellate judges, we respect the role of trial courts by refraining from substituting our judgment for theirs. "[A]bsent any explanation, we cannot do our job as an appellate court: we would be placed in the position of offering our own justifications for the sentence rather than reviewing the district court's reasons." United States v. Boultinghouse, 784 F.3d 1163, 1179 (C.A. 7, 2015).
Finally, I fear that the majority has selected an easy case as a prototype for future appellate overreaching. Defendant was charged with open murder and convicted of voluntary manslaughter. He killed a young man. His self-defense claim was not terribly convincing. The upward departure was only 13 months (although I am certain that even small differences in a sentence matter to a defendant). Given these facts, it is easy to look the other way when a trial court reaches a result that may well be just, but fails to explain how it got there in a manner approved by our Legislature. It is equally easy for us to abandon our responsibility to review only that which is truly reviewable—why not regard the trial court's omission as essentially harmless when we would have sentenced him in a similar way?
Absent an explanation that conforms to the rule of decision reflected in our sentencing principles, the trial court's sentence is improper and our review equally so. Whether two or three appellate judges feel a departure sentence is well-deserved is a retrospective and fundamentally subjective determination.
Proceeding down the majority's path is the first step on a slippery slope that would permit appellate judges to cherry-pick a record, finding reasons to enforce our own judgments about why a departure was justified. Smith, 482 Mich. at 304, 754 N.W.2d 284. And the next case may not be quite as straightforward, opening the door to a patchwork of inconsistent appellate judgments concerning the contours of "reasonableness" and a panoply of subjective and widely inconsistent sentences.