Opinion
No. 334112
10-12-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DONOVAN WAYNE FLUHART, Defendant-Appellant.
UNPUBLISHED Emmet Circuit Court
LC No. 14-004041-FC Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (causing personal injury to the victim and using force or coercion is to accomplish sexual penetration), one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(f) (causing personal injury to the victim and using force or coercion to accomplish sexual contact), and one count of assault with intent to commit sexual penetration, MCL 750.520g(1). He was sentenced as a habitual offender, second offense, MCL 769.10, to concurrent prison terms of 15 to 50 years for the two CSC-I convictions, 7 to 22 years and 6 months for the CSC-II conviction, and 3 to 15 years for the assault conviction. Defendant appealed, and we affirmed his convictions but concluded that the trial court's scoring of offense variables (OVs) 3 and 4 was neither supported by the jury's verdict nor any facts admitted by defendant. We remanded for resentencing to determine if the trial court "would have imposed a materially different sentence, but for the constraint of the sentencing guidelines which were mandatory when Defendant was sentenced" consistent with People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015) and United States v Crosby, 397 F3d 103 (CA 2, 2005). People v Fluhart, unpublished opinion per curiam of the Court of Appeals, entered April 19, 2016 (Docket No. 325949). The underlying facts were set forth in our prior opinion, and we need not repeat them here. On remand, the trial court issued an order and opinion denying defendant's motion for resentencing because it found that defendant's "sentence was in the middle of the recommended guideline range" and was "proportional to the offender and the seriousness of the offenses." Defendant appeals as of right this order. We affirm.
Defendant was originally sentenced on January 22, 2015, prior to the release of Lockridge, 498 Mich 358.
In the instant appeal, defendant argues that the minimum sentence imposed by the trial court violates the principle of proportionality. "A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." Lockridge, 498 Mich at 392 (emphasis added). "[T]he standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion." People v Steanhouse, ___ Mich ___, ___; ___ NW2d ___ (2017) (Docket Nos. 152671, 152849, 152871-152873, 152946-152948), slip op at 14. However, "[i]f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." MCL 769.34(10).
While our Supreme Court has entertained the question regarding the continuing viability of the rule of mandatory affirmance set forth in MCL 769.34(10), it has yet to decide the issue. See Steanhouse, ___ Mich at ___; slip op at 14 n 14 ("Because both defendants received departure sentences, we do not reach the question of whether MCL 769.34(10), which requires the Court of Appeals to affirm a sentence that is within the guidelines absent a scoring error or reliance on inaccurate information in determining the sentence, survives Lockridge."). Indeed, MCL 769.34(10) remains valid. See People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016) ("Lockridge did not alter or diminish MCL 769.34(10) . . . ."). --------
In this case, defendant's sentence was not subject to an upward departure from the minimum guidelines range. His minimum sentence of 180 months was clearly within the appropriate guidelines sentence range of 108 to 225 months. Further, defendant does not argue that there was an error in scoring the guidelines or that the trial court relied on inaccurate information to determine his sentence. Accordingly, defendant's sentence must be affirmed. MCL 769.34(10); People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016).
Affirmed.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Colleen A. O'Brien