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People v. Schaafsma

Michigan Court of Appeals
Jun 28, 2005
267 Mich. App. 184 (Mich. Ct. App. 2005)

Summary

holding that a probation violation is objective and verifiable and may provide a substantial and compelling reason for an upward departure

Summary of this case from People v. Croff

Opinion

Docket No. 252696.

Submitted June 7, 2005, at Detroit.

Decided June 28, 2005, at 9:15 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Janice Kittel Mann, Assistant Prosecuting Attorney, for the people.

Gerald Ferry for the defendant.

Before: O'CONNELL, P.J., and SCHUETTE and BORRELLO, JJ.


Defendant appeals by delayed leave granted his sentence of two to fourteen years in prison imposed following his conviction of a probation violation. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

Defendant pleaded guilty of uttering and publishing, MCL 750.249. The statutory sentencing guidelines established a minimum term range of nine to twenty-three months. Because this range permitted an intermediate sanction, the trial court's sentence of one year of probation was within the guidelines. MCL 769.34(4)(c); MCL 769.31(b). Shortly thereafter, defendant pleaded guilty of violating his probation. The trial court concluded that it was not required to adhere to the guidelines when imposing sentence following a conviction of probation violation and sentenced defendant to two to fourteen years in prison, exceeding the minimum range of the guidelines by one month.

Contrary to the sentencing court's conclusion, our Supreme Court has recently held that the statutory sentencing guidelines apply to a sentence imposed after a probation violation. People v. Hendrick, 472 Mich 565, 565; 697 NW2d 511 (2005). However, the Court in Hendrick also recognized that conduct underlying a probation violation may serve as a substantial and compelling basis for departure. Id. Putting conduct aside, any probation violation represents an affront to the court and an indication of an offender's callous attitude toward correction and toward the trust the court has granted the probationer. The violation itself is objective and verifiable, so we see no reason why a court must focus exclusively on the underlying conduct, especially since the conduct itself may be punished in a separate proceeding. We conclude that the offender's probation violation itself is an objective and verifiable factor worthy of independent consideration. Because the probation violation is objective and verifiable, the trial court in its discretion may conclude that the factor provides a substantial and compelling reason to depart from the sentencing guidelines. Here, defendant violated his probation, and the trial court only departed from the guidelines by one month.

Moreover, when a reviewing court determines that a sentencing court would prescribe the same sentence notwithstanding a misunderstanding of the law or irregularity in the proceedings, the reviewing court may simply affirm the sentence. People v. Babcock, 469 Mich 247, 260-261; 666 NW2d 231 (2003). Under the circumstances of this case, we affirm defendant's sentence and decline to remand for resentencing. The trial court indicated that the guidelines range, though inapplicable, did not give adequate weight to defendant's prior record. Defendant had ten felony convictions, thirty-one misdemeanor convictions, and had served five prison terms and numerous jail sentences. A trial court may depart from the guidelines range on the basis of an offense or offender characteristic that was already considered in calculating the guidelines range if the court concludes "that the characteristic has been given inadequate or disproportionate weight." MCL 769.34(3)(b). Because the trial court articulated a substantial and compelling reason for imposing a sentence that exceeded the guidelines and indicated that it would have handed down the same sentence had it found the guidelines applicable, we need not remand for resentencing. Babcock, supra.

Affirmed.


Summaries of

People v. Schaafsma

Michigan Court of Appeals
Jun 28, 2005
267 Mich. App. 184 (Mich. Ct. App. 2005)

holding that a probation violation is objective and verifiable and may provide a substantial and compelling reason for an upward departure

Summary of this case from People v. Croff

In People v Schaafsma, 267 Mich App 184, 185-186; 704 NW2d 115 (2005), this Court explained that "any probation violation represents an affront to the court and an indication of an offender's callous attitude toward correction and toward the trust the court has granted the probationer."

Summary of this case from People v. Davis

In Schaafsma, we also agreed with the trial court's conclusion that the guidelines did not give enough weight to the defendant's prior record.

Summary of this case from People v. Tucker

stating that "the offender's probation violation itself is an objective and verifiable factor worthy of independent consideration" and can constitute a reason for departing from the mandatory sentencing guidelines

Summary of this case from People v. Tucker

In People v Schaafsma, 267 Mich App 184, 185-186; 704 NW2d 115 (2005), this Court opined that a trial court may properly consider a defendant's verified probation violation and impose an upward departure from the sentencing guidelines because such a defendant's conduct represents "an affront to the court and an indication of an offender's callous attitude toward correction and toward the trust the court has granted the probationer."

Summary of this case from People v. Minor
Case details for

People v. Schaafsma

Case Details

Full title:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DONALD WAYNE…

Court:Michigan Court of Appeals

Date published: Jun 28, 2005

Citations

267 Mich. App. 184 (Mich. Ct. App. 2005)
704 N.W.2d 115

Citing Cases

People v. Tucker

Importantly, even when the sentencing guidelines were mandatory, prior to our Supreme Court's decision in…

People v. Davis

Id. at 562-563. In People v Schaafsma, 267 Mich App 184, 185-186; 704 NW2d 115 (2005), this Court explained…