Opinion
361197
06-13-2022
People of Michigan v. Tristian Michael Horney
LC No. 19-245452-FH
Christopher M. Murray Presiding Judge, Thomas C. Cameron, Kristina Robinson Garrett Judges.
ORDER
Christopher M. Murray Presiding Judge.
The application for leave to appeal is DENIED for lack of merit in the grounds presented.
Garrett, J., would grant the application for leave to appeal. The trial court's departure sentence was potentially disproportionate to the seriousness of the offense, for a number of reasons. First, the underlying probation violations were minor technical violations. The trial court did not explain why a failed drug test and low-level retail fraud charge justified departing by eight months from the guidelines, nor how imposing a lengthy prison sentence was reasonable under the circumstances. This is particularly true given the low jail caps designated by the Legislature for technical probation violations. See MCL 771.4b. Second, many of the trial court's purported explanations for its departure were sufficiently accounted for by the guidelines, including Horney's prior criminal history. Third, I believe it was improper for the trial court to justify its departure, in part, on Horney's failure to pay restitution on the underlying offense, at least without an inability-to-pay finding. See MCL 769.5(6). The trial court likely abused its discretion by imposing a disproportionate departure sentence. At the very least, I believe this case warrants plenary review for a panel to consider the proportionality of the sentence.