Opinion
No. 342713
02-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH WILLIAM OLAJOS, 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 UNPUBLISHED Shiawassee Circuit Court
LC No. 2017-009962-FH Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ. PER CURIAM.
Defendant entered into a plea agreement and pleaded nolo contendere to one count of assault with a dangerous weapon (felonious assault), MCL 750.82(1). The trial court sentenced him as a third-offense habitual offender, MCL 769.11, to a prison term of 60 to 96 months. Defendant appeals his sentence by delayed leave granted. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant stabbed another man in the chest and leg during an argument. He was charged as a fourth-offense habitual offender, MCL 769.12, with one count of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, or, in the alternative, one count of felonious assault. After reaching a plea agreement with the prosecution, defendant entered a plea of nolo contendere to the charge of felonious assault in exchange for the dismissal of the AWIGBH charge and the reduction of the habitual offender supplement from fourth-offense to third-offense, MCL 769.11. At sentencing, the minimum sentence recommended by the sentencing guidelines was calculated at 14 to 43 months. The trial court imposed the described out-of-guidelines sentence, noting that defendant had been imprisoned or jailed many times before with no discernable rehabilitation and had committed major misconduct while in prison (causing him on one occasion to serve his statutory maximum sentence), and stating that it believed the recommended minimum sentence under the guidelines not to be proportionate to defendant and the seriousness of the circumstances of his offense.
This appeal followed.
II. STANDARD OF REVIEW
This Court reviews an out-of-guidelines sentence for reasonableness. People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). "[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, 500 Mich 453, 471; 902 NW2d 327 (2017). A sentence is unreasonable—and therefore an abuse of discretion—if the trial court failed to adhere to the principle of proportionality in imposing its sentence on a defendant. Id. at 477, citing People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). That is, sentences imposed by a trial court must be proportionate to the seriousness of the circumstances surrounding the crime and the defendant. Milbourn, 435 Mich at 636.
III. ANALYSIS
Defendant argues that the out-of-guidelines sentence imposed by the trial court was unreasonable. We disagree.
Our Supreme Court in Steanhouse, 500 Mich at 471, reaffirmed the principle of proportionality it articulated in Milbourn, 435 Mich at 651:
[A] judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender.The trial court must also consult and account for the sentencing guidelines, which, though advisory, " 'remain a highly relevant consideration in a trial court's exercise of sentencing discretion.' " Steanhouse II, 500 Mich at 474-475, quoting Lockridge, 498 Mich at 391.
In determining whether a sentence adheres to the principle of proportionality (such that it would be reasonable), " '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 472, quoting Milbourn, 435 Mich at 661. The Steanhouse Court expressly distinguished the test for reasonableness from one requiring " 'extraordinary' circumstances to justify a sentence outside the Guidelines range." Steanhouse II, 500 Mich at 473-474, quoting Gall v United States, 552 US 38, 47; 128 S Ct 586; 169 L Ed 2d 445 (2007). There is not a presumption of unreasonableness for sentences that deviate from the guidelines range. Steanhouse, 500 Mich at 474. However, sentences falling within the guidelines range are generally presumed to be proportionate. People v Cotton, 209 Mich App 82, 85; 530 NW2d 495 (1995).
A trial court may consider the following non-exclusive factors in fashioning 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. [People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015), aff'd in part and rev'd in part on other grounds 500 Mich 453 (2017) (citations omitted).]When imposing an out-of-guidelines sentence, a trial court must not only determine that reasons to exceed the guidelines exist but "must explain how the extent of the departure is proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse (On Remand), 322 Mich App 233, 239; 911 NW2d 253 (2017), citing People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008).
The trial court fulfilled its obligation under Steanhouse, 500 Mich at 474-475, to consult and account for the guidelines before sentencing defendant. The trial court explained that it was unable to fashion a reasonable sentence under the guidelines because of (1) defendant's misconduct while incarcerated and (2) the lack of rehabilitative effect that prison had had on defendant. We hold that it did not abuse its discretion.
Defendant argues that his criminal history was already accounted for in the guidelines. Indeed, "a defendant's prior criminal history and recidivist history . . . [a]re included in the scoring of the prior record variables and offense variables and, thus, [a]re insufficient to support an upward departure absent a finding by the trial court that the factors were given inadequate weight when scored." People v Hendrick, 472 Mich 555, 564 n 10; 697 NW2d 511 (2005), citing MCL 769.34(3)(b). However, unlike the trial court in Hendrick, see id., the trial court in this case explicitly determined that the sentencing guidelines failed to give adequate weight to defendant's criminal history. Moreover, the trial court did not determine that an out-of-guidelines sentence was warranted solely on the basis of defendant's criminal record. Rather, the trial court cited the apparent lack of effect that incarceration had had on defendant's conduct.
The trial court's determination that the guidelines gave inadequate weight to defendant's failure to rehabilitate despite multiple prison terms was reasonable and supported by the record. Defendant's criminal record extends as far back as 1984, when he was 16 years old. At that time, he was made a temporary ward of the state when he was convicted of malicious destruction of property over $100. That same year, he was convicted of misdemeanor assault and battery. As an adult, before the instant conviction, defendant's record included 19 criminal convictions for which defendant had spent nearly 21 years in prison, almost three years in jail, and approximately 45 months on probation. As the trial court recognized, defendant had previously been convicted of five separate assaultive crimes, including an aggravated assault conviction, MCL 750.81a(1), felonious assault, assault with intent to commit criminal sexual conduct, MCL 750.520g, aggravated domestic violence, MCL 750.81a(2), and second-offense domestic violence, MCL 750.81(4). Defendant was required to serve the maximum term of imprisonment for his assault with intent to commit sexual misconduct conviction because of multiple incidents of misconduct while in prison. Additionally, while defendant was paroled from the sentence imposed as a result of his aggravated domestic violence conviction and assigned to transitional housing, he was remanded to the county jail several times for assaultive behavior, non-compliance with treatment, aggression towards staff, and failed drug and alcohol tests.
A defendant's misconduct while in prison and his or her potential for rehabilitation are factors not adequately accounted for in the guidelines. Steanhouse, 313 Mich App at 46. Accordingly, contrary to defendant's assertions, the factors relied on by the trial court in imposing an out-of-guidelines sentence were properly considered. See id. Defendant has served many years in prison, in part because of numerous convictions for assaultive behavior. The trial court's belief that criminal penalization had had little rehabilitative effect on defendant was solidly based in the evidence before it. Additionally, the trial court offered a thorough explanation of its reasoning before sentencing defendant, detailing how these factors warranted a sentence higher than that recommended by the sentencing guidelines in this particular case. That is, the trial court "explain[ed] how the extent of the departure [wa]s proportionate to the seriousness of the circumstances surrounding the offense and the offender." Steanhouse (On Remand), 322 Mich App at 239.
Defendant also argues that his sentence was unreasonable because an offender who committed similar acts in a more heinous manner would not be subject to a more severe recommended term of imprisonment under the sentencing guidelines. It is true that defendant's sentence comes close to the maximum minimum sentence allowed under the Tanner rule, People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972); MCL 769.34(2)(b), and that therefore an offender who, for example, committed the same offense as defendant but was sentenced as a fourth-offense habitual offender could only receive, at most, a minimum sentence four months longer than defendant. Nonetheless, it is nearly always possible to imagine an offender committing a crime in a more egregious fashion or possessing a worse personal history. To adopt defendant's argument would be to declare unreasonable any out-of-guidelines sentence that approaches the Tanner boundary. We decline to do so. What ultimately matters is whether the sentence imposed by the trial court is proportionate to the seriousness of the crime and the defendant as an individual. See Milbourn, 435 Mich at 636, 651. In this case, the trial court's imposition of a five-year minimum sentence was proportionate to the offense and the offender; defendant has repeatedly demonstrated a particularly strong resistance to rehabilitation and unwillingness to cease engaging in violent, assaultive behavior. The sentence imposed was reasonable. Lockridge, 498 Mich at 365.
Affirmed.
/s/ Michael J. Kelly
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra
People v Olajos, unpublished order of the Court of Appeals, entered April 12, 2018 (Docket No. 342713).