Opinion
No. 349550
10-22-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DUANE KEVIN MCGILARY, 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 UNPUBLISHED Wayne Circuit
LC No. 12-001815-01-FC Before: METER, P.J., and SHAPIRO and RIORDAN, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of two counts of assault with intent to commit murder (AWIM), MCL 750.83, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, assaulting, resisting, or obstructing a police officer, MCL 750.81d(1), first-degree home invasion, MCL 750.110a(2), and carrying a concealed weapon (CCW), MCL 750.227. The trial court sentenced defendant to 25 to 50 years' imprisonment for each count of AWIM, 2 years' imprisonment for felony-firearm, 1 to 2 years' imprisonment for assaulting, resisting, or obstructing a police officer, 10 to 20 years' imprisonment for first-degree home invasion, and 2 to 5 years' imprisonment for CCW. After we affirmed defendant's convictions, the Supreme Court remanded the case to the trial court to determine, in accordance with People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), whether defendant would have received different sentences if the sentencing guidelines were properly treated as advisory rather than mandatory. People v McGilary, 498 Mich 945 (2015). The successor judge that presided over defendant's case on remand determined that the court would not have imposed a materially different sentence in light of Lockridge and reaffirmed the original sentence. Defendant now appeals by right. We affirm.
People v McGilary, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2015 (Docket No. 319975).
This Court previously set forth the background to this case:
Two police officers responding to gunshots being fired at a coney island saw defendant in the area and asked him to "come here." Defendant ran away and the police officers pursued him in their vehicle. Eventually defendant stopped and pointed a gun directly at the police vehicle and began shooting as he ran toward the vehicle. Defendant then ran to a nearby house, climbed over a locked gate, and entered the house through the side door. The owner of the house asked defendant to leave and he refused. During their search for defendant, the police found a black handgun by the locked gate that defendant had climbed. Subsequently, the homeowner was able to alert the police that defendant was inside his house and defendant was arrested. [People v McGilary, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2015 (Docket No. 319975).]
Defendant's sentencing guidelines range for AWIM was 225 to 375 months (18¾ to 31¼ years). The trial court imposed a sentence of 25 to 50 years' imprisonment for each count of AWIM. Defendant appealed his convictions and sentences to this Court, and we affirmed. After defendant filed an application for leave to appeal, our Supreme Court issued its opinion in Lockridge, 498 Mich at 391, which held that the Sixth Amendment of the United States Constitution required that Michigan's sentencing guidelines scheme be treated as advisory rather than mandatory. In lieu of granting defendant's application for leave to appeal, the Supreme Court issued an order reversing this Court's judgment in part and remanding the case to the trial court "to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in [Lockridge]." McGilary, 498 Mich at 945.
On remand, defendant filed a motion for resentencing. The judge who had presided over defendant's trial and sentencing had retired, and so the Crosby remand hearing was held before the successor judge. The successor judge denied defendant's motion for resentencing, reasoning that there was no indication that defendant's AWIM sentences, which were "toward the middle of the guidelines," would have been different under an advisory sentencing guidelines scheme.
United States v Crosby, 397 F3d 103, 117 (CA 2, 2005).
We review a trial court's decision on a motion for resentencing for an abuse of discretion. People v Puckett, 178 Mich App 224, 227, 443 NW2d 470 (1989). "A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes." People v Odom, 327 Mich App 297, 303; 933 NW2d 719 (2019). --------
On appeal, defendant does not argue that the successor judge abused his discretion by denying the motion for resentencing on the grounds that the trial court would not have imposed a materially different sentence had the sentencing guidelines been advisory. Nor does defendant claim any error regarding the remand proceedings. Instead, he argues only that his 25-year minimum sentences for the AWIM convictions are disproportionate and unreasonable.
The principle of proportionality "requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Walden, 319 Mich App 344, 351-352; 901 NW2d 142 (2017) (quotation marks and citation omitted). "A sentence that falls within the appropriate sentencing guidelines range is presumptively proportionate." People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). "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). See also People v Steanhouse, 322 Mich 233, 257 n 3; 911 NW2d 253 (2017), rev'd in part on other grounds 504 Mich 969 (2019).
Defendant has not presented any unusual circumstances that would warrant vacating the imposed sentence. While defendant asserts that he had a troubled upbringing, at the remand hearing his counsel said that he has "strong family support," as evidenced by the presence of his parents at the sentencing hearings and the letters his parents wrote in support of leniency. Defendant's lack of education and gainful employment do not present unusual circumstances sufficient, in and of themselves, to render the sentence disproportionate. And while defendant emphasizes that his criminal actions were not premeditated, the sentencing court took this into account when it stated that defendant's conduct "was like a jerk response" and assessed 25 points (unpremeditated intent to kill) rather than 50 points (premeditated intent to kill) for OV 6 (offender's intent to kill or injure another individual). Defendant presents no other argument from which to conclude that a sentence in the middle of the guidelines range was unduly severe considering the circumstances surrounding the offense and the offender.
In sum, defendant does not overcome the presumption that his within-guidelines AWIM sentences are proportionate.
Affirmed.
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
/s/ Michael J. Riordan