Opinion
No. 353325
04-15-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. ANTONIO DAVON FLOYD, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2019-000741-FC Before: BECKERING, P.J., and FORT HOOD and RIORDAN, JJ. PER CURIAM.
The prosecution appeals by leave granted defendant's concurrent sentences of 5 to 20 years' imprisonment for his convictions, made on the basis of a no-contest plea, of second-degree murder, MCL 750.317, two counts of delivery/manufacturing of less than 50 grams of fentanyl, MCL 333.7401(2)(a)(iv), and second-degree child abuse, MCL 750.136b(3)(b). The prosecution argues that the trial court abused its discretion by departing downward from the sentencing guidelines range of 225 to 750 without adequately justifying the same. We agree. We further note that defendant's judgment of sentence incorrectly indicates that defendant pleaded no contest to manslaughter. On remand, the trial court should correct that error.
People v Floyd, unpublished order of the Court of Appeals, entered July 14, 2020 (Docket No. 353325).
This case arises out of the death of defendant's infant daughter, AF, from a fentanyl overdose on Christmas Day in 2018. AF's six-year-old sister testified at a preliminary examination that she saw AF "drink something bad" from a clear bottle with a silver cap. ND understood the drink to be for grown-ups and not for children. ND indicated that she had seen defendant and AF's mother drink it "a lot of times." ND's testimony concerning when and where AF drank the substance, as well as whether any adults were aware of the event, is inconsistent. However, at some point in the day, it was discovered that AF was not breathing and she was taken to the hospital, where she was pronounced dead. An autopsy of AF's body revealed that she died of a fentanyl overdose. Evidence of unprescribed fentanyl was later discovered by police in defendant's home, and defendant was charged and convicted on the basis of a no-contest plea as indicated above. At the sentencing, and on the basis of a Cobbs agreement, the trial court sentenced defendant to 5 to 20 years' imprisonment, which was a significant downward departure from his minimum sentencing guidelines range of 225 to 700 months.
Defendant was also charged with being a felon in possession of a firearm, MCL 750.224f, and with two counts of possession of a firearm during the commission of a felony, MCL 750.227b. The trial court dismissed those charges.
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
We review a sentence that departs from the sentencing guidelines range for reasonableness. People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). The standard of review we apply for reasonableness is abuse of discretion. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017) (Steanhouse I). A trial court abuses its discretion in sentencing "when its decision falls outside the range of reasonable and principled outcomes." People v Foster, 319 Mich App 365, 375; 901 NW2d 127 (2017). We review a trial court's findings of fact at sentencing for clear error. People v Odom, 327 Mich App 297, 303; 933 NW2d 719 (2019). Clear error occurs when "the reviewing court is left with a definite and firm conviction that an error occurred." Id. at 304 (quotation marks and citation omitted).
A sentence is reasonable "if it adheres to the principle of proportionality" provided in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). People v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). The principle of proportionality requires a sentence "to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." Milbourn, 435 Mich at 636. Although the sentencing guidelines are no longer mandatory, they serve as a "useful tool" or as "guideposts" to help reduce disparity in sentencing. People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458 (2017). A trial court may depart from the guidelines range when it determines that "the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime." Milbourn, 435 Mich at 657. When determining proportionality, the trial court may consider factors that include but are not limited to:
(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. [Walden, 319 Mich App at 352-353 (quotation marks and citations omitted).]
"A trial court must articulate its reasons for imposing a sentence on the record at the time of sentencing." People v Conley, 270 Mich App 301, 312; 715 NW2d 377 (2006). When a trial court justifies a departure sentence, it must include "an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." Dixon-Bey, 321 Mich App at 525 (quotation marks and citation omitted). If it is unclear why a trial court departed from the guidelines range, "an appellate court cannot substitute its own judgment about why the departure was justified." People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008).
The trial court justified its departure by reasoning that defendant did not intend for AF to die, that the knowledge that he caused his daughter's death was more severe a sentence than anything it could impose, and that defendant accepted responsibility by entering a plea to second-degree murder. The court noted that, but for defendant's no-contest plea, the evidentiary issues in the case very well could have resulted in defendant's acquittal. The trial court recognized the seriousness of the crimes and defendant's responsibility for the same, but noted that in light of all of the above, a minimum of five years' imprisonment was "not a slap on the wrist." The Court concluded that justice would be best served by honoring the Cobbs agreement that was made.
The prosecution argues that defendant's lack of intent to kill AF was an inadequate reason for departure because it was already considered in the scoring of offense variable (OV) 6. OV 6 addresses the offender's intent to kill or injure another individual. MCL 777.36(1). Zero points are assessed for OV 6 when "[t]he offender had no intent to kill or injure . . . ." MCL 777.36(1)(d). In this case, OV 6 was scored at zero points. The prosecution notes that 25 points could have been assessed for OV 6 simply on the basis that defendant was convicted of second-degree murder, and that assessing 25 points would have increased defendant's guidelines range. To that end, the prosecution argues that the assessment of zero points for OV 6 resulted in a guidelines range that had "a type of built-in downward departure."
To the extent that the prosecution seeks to argue that defendant's guidelines range was improperly assessed, they have not adequately raised or addressed the issue and it is not properly before this Court. See MCR 7.212(C)(5); People v Fonville, 291 Mich App 363, 383; 804 NW2d 878 (2011).
We agree that the trial court's consideration of defendant's lack of intent to kill AF was inappropriate because the same was already considered in the calculation of defendant's minimum sentencing guidelines range. See People v Steanhouse (On Remand), 322 Mich App 233, 240; 911 NW2d 253 (2017), vacated in part on other grounds 504 Mich 969 (2019) (Steanhouse II). And, although the trial court properly relied on a number of other factors to support its downward departure, it is unclear from the record whether the trial court would have imposed the same departure sentence solely on the basis of those factors. Because the trial court's consideration of defendant's lack of intent to kill AF was so integral to its explanation of why the downward departure was more proportionate to the seriousness of the offense than a sentence within the guidelines, we conclude that the justification as a whole was inadequate and constituted an abuse of discretion.
We note the prosecution's argument that the trial court also erroneously relied on defendant having accepted responsibility for his daughter's death as justification for its departure. Indeed, defendant's presentence investigation report includes a statement from defendant indicating that he did not believe he was responsible for AF's death. However, a plea of no contest is "tantamount to an admission of guilt for the purposes of [a] criminal case." People v Franklin, 298 Mich App 539, 544; 828 NW2d 61 (2012) (quotation marks and citation omitted). Accordingly, we discern no clear error from the trial court having determined that defendant accepted responsibility on the basis of his no-contest plea. See Odom, 327 Mich App at 304. We also note that the court's reliance on the factor seems particularly appropriate in light of the evidentiary issues the court pointed out.
We remand to the trial court with instructions to either resentence defendant or rearticulate whether the departure sentence is justified on the basis of only those factors that were not already considered in the assessment of defendant's minimum sentencing guidelines range. On remand, the trial court should also correct the judgment of sentence to reflect that defendant was not convicted of manslaughter. We do not retain jurisdiction.
We note that, if the trial court chooses to resentence defendant, defendant has the absolute right to withdraw his plea because it was made in reliance on the Cobbs agreement. Cobbs, 443 Mich at 283. --------
/s/ Jane M. Beckering
/s/ Karen M. Fort Hood
/s/ Michael J. Riordan