Opinion
No. 329971
01-24-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ISAAC JEROME BAFFORD, Defendant-Appellant.
UNPUBLISHED Manistee Circuit Court
LC No. 15-004495-FH Before: O'CONNELL, P.J., and MARKEY and MURRAY, JJ. PER CURIAM.
Defendant appeals by right his conviction, after a jury trial, of three counts of delivery of methamphetamine, MCL 333.7401(2)(b)(i), as a second or subsequent offense, MCL 333.7413(2). Defendant's convictions stem from three controlled drug buys. The trial court sentenced defendant to 16 to 40 years' imprisonment. We affirm.
Defendant challenges his sentence, arguing that it violates both the principle of proportionality and constitutes cruel and unusual punishment. A defendant does not need to take any special steps to preserve the question of the proportionality of his sentence. People v Cain, 238 Mich App 95, 129; 605 NW2d 28 (1999). But defendant did not assert below that his sentences were unconstitutionally cruel or unusual, so this issue is unpreserved. People v Bowling, 299 Mich App 552, 557; 830 NW2d 800 (2013). Unpreserved issues are reviewed for plain error affecting substantial rights. We review for an abuse of discretion the proportionality of a sentence imposed. People v Lockridge, 498 Mich 358, 365, 392; 870 NW2d 502 (2015). When a sentence "fulfills the principle of proportionality" under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), it is "a reasonable sentence under Lockridge." People v Steanhouse, 313 Mich App 1, 47-48; 880 NW2d 297 (2015), lv gtd 499 Mich 934 (2016).
The trial court stated when imposing defendant's sentence that it had "strongly considered" punishment and the need to protect the community. After reviewing defendant's juvenile and adult criminal history, the trial court told defendant, "you are an assaultive individual and you are a drug dealer," and noted that one of the drug deliveries defendant was being sentenced for had occurred on the same day as the birth of one of defendant's children. The court further told defendant that his criminal behavior was a "root cause" of what the court identified as a methamphetamine epidemic. The court found that it had "no ability under a local sentence to rehabilitate" defendant.
This Court has identified a nonexclusive list of factors relevant to a proportionate sentence:
(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 (citations omitted).]
The Court opined that traditional proportionality review reflected a presumption in favor of recommendations under the guidelines by regarding " '[a] departure from the recommended range in the absence of factors not adequately reflected in the guidelines' " as " 'alert[ing] the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion.' " Id., quoting Milbourn, 435 Mich at 659-660. "[A] given sentence can be said to constitute an abuse of discretion if that sentence violates the principle of proportionality, which 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. Thus, to impose a proportionate sentence, a trial court must take "into account the nature of the offense and the background of the offender." Id. at 651.
In addition to restoring Milbourn and related cases as the guideposts for reasonableness review, Steanhouse held that a remand pursuant to United States v Crosby, 397 F3d 103 (CA 2, 2005) is required where the sentencing court "was unaware of, and not expressly bound by, a reasonableness standard . . . at the time of sentencing," Steanhouse, 313 Mich App at 48, and for that reason remanded the case before it for such further proceedings, id., even though it concerned a departure sentence, id. at 48-49. Although Steanhouse was issued ten days after defendant was sentenced, the court was aware of Lockridge and the requirement that the sentence it imposed would "be reviewed for reasonabless on appeal." Consistent with Milbourn, the trial court indicated it was satisfied "the sentence it is going to impose . . . is reasonable and proportional considering [defendant's] actions in this instance and his criminal record."
The United States Constitution prohibits cruel and unusual punishment. US Const, Am VIII. The 1963 Michigan Constitution prohibits cruel or unusual punishment. Const 1963, art 1, § 16. "If a punishment 'passes muster under the state constitution, then it necessarily passes muster under the federal constitution.' " People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011), quoting People v Nunez, 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000).
"In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes in this state, as well as the penalty imposed for the same crime in other states." People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011). "A sentence within the guidelines range is presumptively proportionate, and a proportionate sentence is not cruel or unusual." People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). "In order to overcome the presumption that the sentence is proportionate, a defendant must present unusual circumstances that would render the presumptively proportionate sentence disproportionate." People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000).
Defendant has not argued that his sentence was cruel and unusual in comparison to other crimes in this state or for the same crime in other states. --------
MCL 333.7413(2) allows sentencing judges to imprison individuals who are convicted of a second or subsequent offense "not more than twice the term otherwise authorized." Pursuant to this statute, see People v Williams, 268 Mich App 416, 429-431; 707 NW2d 624 (2005), the trial court doubled defendant's original minimum guidelines sentence range to 12 to 20 years. Thus, defendant's 16 to 40 year sentence fell within his sentencing guidelines range and is presumptively proportionate.
As the trial court observed, defendant has a lengthy criminal record that extends back to 1997, when defendant was 14 years old. Many of the crimes defendant committed involved illegal substances and violent behavior. And the gravity of delivering methamphetamine is not a harmless offense, as defendant's argument suggests, because no direct loss of life resulted. As the trial court observed, trafficking in methamphetamine is harmful to society in the analogously fashion that cancer is to the human body.
Defendant contends that his sentence is cruel and unusual because the potential maximum sentence of 40 years means that he could spend most of the remainder of his life in prison for delivering to an undercover officer what he characterizes as "a miniscule amount" of methamphetamine. But a "defendant's age is insufficient to overcome the presumptive proportionality of his sentences, especially considering his lengthy criminal record and the gravity of his offenses." Bowling, 299 Mich App at 558-559.
Because we conclude that defendant's sentence is reasonable, it does not constitute cruel or unusual punishment. Id. at 558.
We affirm.
/s/ Peter D. O'Connell
/s/ Jane E. Markey
/s/ Christopher M. Murray