Opinion
No. 337622
03-20-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MATTHEW ELIOTT CRUMLEY, Defendant-Appellant.
UNPUBLISHED Macomb Circuit Court
LC No. 2013-001233-FC Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ. PER CURIAM.
In a previous appeal, this Court "remand[ed] to the trial court for a determination of whether resentencing [was] warranted under People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), and United States v Crosby, 397 F3d 103 (CA 2, 2005)," as the trial court had relied upon judge-found facts in imposing sentence and was unaware that the sentencing guidelines soon would be rendered advisory. People v Crumley, unpublished per curiam opinion of the Court of Appeals, issued June 28, 2016 (Docket No. 325712), unpub op at 1, 3-4 (Crumley I). On remand, the trial court denied defendant's request for resentencing. Defendant now contends that his sentence represents an upward departure from the minimum sentencing guidelines range and is unreasonable. We discern no error and affirm.
I. RELEVANT BACKGROUND
After a jury convicted defendant of armed robbery and third-degree fleeing and eluding, the trial court sentenced him as a second habitual offender to concurrent sentences of 10 to 40 years' and 3 to 7½ years' imprisonment. Id. at 1. In doing so, the court assessed 15 points for offense variable (OV) 1 (aggravated use of a weapon) and 10 points for OV 4 (psychological injury to a victim). Id. at 3-4. Both scores required the court to find facts that had not been found by the jury or admitted by defendant. Id. This Court described, "In sum the 15 points assessed for OV 1 and 10 points assessed for OV 4 were improperly assessed against defendant, as the factual basis necessary to score them were not found beyond a reasonable doubt by the jury or admitted by defendant." Id. at 4. Absent those 25 points, defendant's OV level would be reduced to Level I and his minimum sentencing guidelines range would fall from 81 to 168 months down to 51 to 106 months. Id. at 4-5. Accordingly, this Court was required to remand to the trial court to determine whether resentencing was warranted. Id. at 1, 5.
On remand, defendant sought resentencing. The trial court found "that it would not have imposed a materially different sentence in the absence of the improper scoring of OV 1 and OV 4." The court therefore denied defendant's motion for resentencing.
II. ANALYSIS
Defendant now contends that his 120-month minimum sentence for armed robbery exceeds the "corrected" guidelines range of 51 to 106 months and that this upwardly departing sentence is unreasonable and disproportionate. Defendant's argument is founded on a misunderstanding of this Court's prior opinion and the law.
In Crumley I, this Court did not hold that the trial court erroneously assessed points for OVs 1 and 4, only that the scores were based on judge-found facts. This Court's statement that the points assessed for OV 1 and OV 4 were "improperly assessed" was in the context of addressing the Sixth Amendment violation resulting from judicial fact-finding where defendant was sentenced before Lockridge issued, i.e., before our Supreme Court made the guidelines advisory. Noting that the absence of these scores impacted defendant's minimum sentencing guidelines range, this Court held that a remand was necessary so the trial court could articulate whether it would have imposed the same sentence had it been aware that the Supreme Court would declare the sentencing guidelines advisory in Lockridge. This Court did not hold that defendant's "corrected" minimum sentencing guidelines range was 51 to 106 months. Rather, this hypothetical corrected range required this Court to remand so the trial court could sentence defendant under the correct legal principles in the first instance. See People v Steanhouse, 500 Mich 453, 461-462; 902 NW2d 327 (2017) (Steanhouse I); Lockridge, 498 Mich at 397; People v Stokes, 312 Mich App 181, 200; 877 NW2d 752 (2015), vacated in part on other grounds 903 NW2d 194 (Mich, 2017).
Defendant's minimum sentence of 120 months falls within his minimum sentencing guidelines range of 81 to 168 months. The trial court reviewed its point assessments for OVs 1 and 4 and determined that it would do nothing differently knowing that the guidelines were advisory only. Although defendant contends that his sentence is unreasonable, this Court only undertakes a reasonableness review for sentences that depart from the guidelines range. See Steanhouse I, 500 Mich at 459-460; Lockridge, 498 Mich at 392. As defendant's sentence does not amount to an upward departure, the trial court was not required to justify the sentence as reasonable and proportionate.
In addition, MCL 769.34(10) requires us to affirm defendant's sentences. MCL 769.34(10) states, in relevant part:
If 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.This Court has held that MCL 769.34(10) remains valid after Lockridge. In People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016), this Court stated:
When a trial court does not depart from the recommended minimum sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information. MCL 769.34(10). Defendant does not dispute that his sentence was within the recommended minimum guidelines range, and he does not argue that the trial court relied on inaccurate information or that there was an error in scoring the guidelines. Therefore, this Court must affirm the sentence.This Court further noted that "Lockridge did not alter or diminish MCL 769.34(10)[.]" Id. at 196 n 1. Defendant's minimum sentence for armed robbery fell within the guidelines range, and defendant has not argued that there was an error in scoring the guidelines or that the trial court relied on inaccurate information to determine his sentences. Therefore, this Court must affirm defendant's sentences. MCL 769.34(10); Schrauben, 314 Mich App at 196.
In Steanhouse I, 500 Mich at 471 n 14, our Supreme Court expressly declined to reach the question of whether MCL 769.34(10) survived Lockridge. --------
Finally, even if this Court were to review defendant's sentences for proportionality, defendant has failed to establish that his sentences are disproportionate. "[A] sentence within the guidelines range is presumptively proportionate[.]" People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008); see also People v Steanhouse (On Remand), ___ Mich App ___; ___ NW2d ___ (Docket No. 318329, issued December 5, 2017), slip op at 2, lv pending (Steanhouse II) ("Generally, sentences falling within the minimum sentencing guidelines range are presumptively proportionate."). "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 Steanhouse II, ___ Mich App at ___; slip op at 2 n 3 ("[U]nder 'unusual circumstances,' a sentence within the guidelines range may 'be disproportionately severe or lenient,' which would result in a sentence that violates the principle of proportionality even though it is within the guidelines range.").
Defendant has not presented unusual circumstances that overcome the presumption that his sentences are proportionate. Defendant articulates nothing about the circumstances of the offense that would make this case unusual. Defendant notes that he did not use a firearm or attempt to injure anyone or move anyone to a place of greater danger. As the trial court noted, however, defendant held a knife to a store employee's abdomen during a robbery and then fled from the police, resulting in a police cruiser accident. After abandoning his vehicle, defendant resisted officers' attempts to arrest him. Defendant was involved in at least two other robberies in neighboring cities during the same time period. Defendant also had a criminal history that included a prior conviction of felonious assault. Defendant attempts to minimize his culpability by stressing his addiction to drugs. Defendant also refers to his having attained some college education, his employment history, and his family support. These facts by themselves fail to establish the existence of unusual circumstances that would render defendant's presumptively proportionate sentences disproportionate. See People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994) (holding that the defendant's employment, lack of criminal history, and minimal culpability were not unusual circumstances that would overcome the presumption of proportionality). Accordingly, defendant has failed to overcome the presumption that his sentences are proportionate.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Mark T. Boonstra
/s/ Jonathan Tukel