Opinion
SC 167065 COA 362236
10-23-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LARISIO L. JOHNSON, Defendant-Appellant.
Berrien CC: 2021-003934-FH
Elizabeth T. Clement, Chief Justice Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the March 14, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Welch, J. (concurring).
The Court of Appeals' opinion in People v Dixon-Bey, 321 Mich.App. 490, 525 (2017), sets forth the relevant factors for determining whether a sentence that departs from the guidelines is reasonable. In the case at bar, the Court of Appeals held that Dixon-Bey does not apply to the imposition of consecutive sentences. Because I believe that defendant's sentence is reasonable under Dixon-Bey, I concur in the Court's denial order. I write separately, however, to highlight that this is a jurisprudentially significant issue that the Court should consider in the future.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2021, defendant, Larisio L. Johnson, was driving a car that had been reported stolen. Officers attempted to pull over defendant, but defendant refused to stop for the police, resulting in a high-speed police chase. During the chase, defendant reached speeds of up to 80 miles an hour, and he eventually slammed into a police car. Defendant fled, and a foot chase ensued.
The jury convicted defendant on charges of third-degree fleeing and eluding, MCL 257.602a(3); malicious destruction of police property, MCL 750.377b; and two counts of resisting or obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant to serve concurrent prison terms for fleeing and eluding and malicious destruction of police property, but it ordered the prison terms for the counts of resisting or obstructing a police officer to run consecutively to those sentences. Although the trial court ordered consecutive sentences that required defendant to serve at least 36 months in prison, the aggregate 36-month minimum term of imprisonment still falls comfortably within the sentencing guidelines ranges for each of the convicted offenses.
II. DISCUSSION
"In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute." People v Ryan, 295 Mich.App. 388, 401 (2012) (quotation marks and citation omitted). It is undisputed in this case that MCL 750.81d(6) authorized consecutive sentences. When a statute authorizes a trial court to impose consecutive sentences, we review the decision to do so for an abuse of discretion. People v Baskerville, 333 Mich.App. 276, 290 (2020). A trial court abuses its discretion by making a decision that is outside the range of reasonable and principled outcomes. Id. It does not appear that this Court has ever provided specific guidance as to what constitutes a reasonable or principled outcome with respect to the imposition of consecutive sentences.
In Dixon-Bey, the Court of Appeals set forth the relevant factors to consider when departing from the sentencing guidelines. Dixon-Bey, 321 Mich.App. at 525. As a foundational principle, the Court of Appeals observed that "[b]ecause the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a 'useful tool' or 'guideposts' for effectively combating disparity in sentencing." Id. at 524-525. Based upon that principle, the Court of Appeals held that relevant factors for determining whether a departure sentence is more proportionate than a sentence within the guidelines range continue to include "(1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not considered by the guidelines, and (3) factors considered by the guidelines but given inadequate weight." Id. at 525 (citations omitted).
In this case, the Court of Appeals held that Dixon-Bey does not apply to the imposition of consecutive sentences. Even if Dixon-Bey applied, however, the panel observed that the trial court "could still rely on 'factors considered by the guidelines but given inadequate weight' in order to justify imposing a consecutive sentence." People v Johnson, ___Mich App ___, ____ (March 14, 2024) (Docket No. 362236); slip op at 5, quoting Dixon-Bey, 321 Mich.App. at 525. With that in mind, the panel explained:
In imposing consecutive sentences on defendant, the trial court cited defendant's criminal history, including his [prior record variable (PRV)] score of 105 and the fact that he was on bond when he committed the crimes for which he was convicted in this case. The trial court explained how those
factors were not adequately considered by the sentencing guidelines, noting that the PRV score was "extremely high" and, in fact, one of the highest PRV scores the trial court had ever seen. The trial court also noted that defendant's PRV score did not account for the fact that defendant's crimes of conviction and the crime for which defendant was on bond were dangerous traffic offenses. And significantly, defendant's PRV score of 105 was far above the 75+ point threshold for the highest PRV category, meaning that the PRV scale did not adequately account for defendant's extensive criminal history. Accordingly, the trial court did not err by citing factors as the bases for consecutive sentences that were also considered in calculating defendant's sentencing guidelines range. [Id.]
Thus, the panel concluded correctly that the trial court's sentence was reasonable under Dixon-Bey. Because the sentence was appropriate regardless of whether Dixon-Bey controlled, I agree with this Court's decision to deny defendant's application for leave to appeal. I write separately, however, because I believe an important question has been raised as to whether the analysis set forth in Dixon-Bey should extend to the imposition of consecutive sentences. I believe this Court should eventually answer that question.