Opinion
No. 347184
05-14-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JONATHAN WAYNE MCPHERSON, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Jackson Circuit Court
LC No. 18-004024-FH Before: CAVANAGH, P.J., and SAWYER and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right his jury convictions on two counts of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, failure to stop at the scene of a personal injury accident, MCL 257.617a, and malicious destruction of personal property valued between $200 and $1,000, MCL 750.377a(1)(c)(i). Defendant was sentenced to 5 to 10 years' imprisonment for each AWIGBH conviction, one year in jail for his failure to stop at the scene of a personal injury accident conviction, and one year in jail for his malicious destruction of personal property conviction, to be served concurrently, with credit for 286 days served. We affirm defendant's convictions, but vacate defendant's AWIGBH sentences and remand for the trial court to either explain its reasoning for the departure sentences or to resentence defendant.
This case arose from a road rage incident between a vehicle driven by defendant and a vehicle driven by Dee Dee Mallisa-Treadway Dubose (Dubose) with Danielle Treadway-Ford (Ford) as a passenger. Dubose testified that, after dropping off her mother at home, she began driving her sister, Ford, home. Dubose stated that she was driving slowly when she noticed a vehicle behind her that looked like it wanted to pass. At trial, both Ford and Dubose identified defendant as the driver of the vehicle. Dubose testified that she turned onto another road, assuming that defendant would proceed straight, but instead, defendant turned and continued to follow her. Dubose stated that shortly after she turned, defendant pulled up next to her vehicle as if he was going to pass. Ford testified that when she looked over at the other vehicle, defendant appeared to be motioning for them to pull over. Ford testified that, when defendant seemed to realize Dubose was not going to pull over, he sped up, turned right in front of her vehicle, and braked, cutting her off and causing her to slam on the brakes.
Ford stated that, after he cut them off, defendant immediately got out of his vehicle waving a claw-tooth hammer in the air, walked to the passenger-side window, and said, "You're dead, Bitch, I'm gonna kill you." Ford stated that she asked defendant what she had done, and defendant responded, "Ask your daughter, Dusty." Ford testified that, after defendant said this, she recognized defendant as one of Dusty's friends and claimed that defendant sent messages to her son-in-law about a month before the incident in which defendant threatened to kill Ford. Dubose testified that she put the vehicle in reverse and began to back away slowly. Ford testified that, as the vehicle was backing up, defendant ran toward them with his hammer and smashed the front headlight on the driver's side. Defendant admitted at trial that he smashed the headlight with a hammer and that this constituted malicious destruction of property. However, defendant stated that he smashed the headlight immediately after exiting his vehicle, without interacting with Dubose or Ford.
Dubose testified that she was licensed to carry a concealed weapon and had a pistol on her person at the time of the incident. According to Ford's testimony, after defendant smashed the headlight, Dubose put the vehicle in park, yelled at defendant to get back, and exited the vehicle with her pistol drawn but pointed at the ground. According to defendant, when Dubose exited her vehicle, he immediately retreated to his vehicle and began to drive away. However, Ford testified that before defendant made it back to his vehicle, Dubose yelled at Ford to take a picture of defendant's vehicle, prompting defendant to turn back around, raise his hammer in the air, take a few steps toward them, and yell, "That's right, Bitch, take a fucking picture, call the fucking cops, I don't care." Dubose testified that, in response, she fired a warning shot in defendant's general direction.
According to Ford, defendant immediately got back in his vehicle after the shot was fired and started backing his car toward them. Ford testified that defendant backed up until he hit Dubose and her vehicle, and the impact caused Dubose's vehicle to hit Ford and knock her over. Defendant admitted that he hit Dubose's vehicle but claimed that he was only trying to disable the vehicle so that Ford and Dubose could not chase after him with the gun. Ford stated that defendant immediately drove away after the impact, and Dubose suffered some severe injuries as a result of the incident.
Defendant testified at trial that he served in the military for eight years, including two tours in Iraq and one tour in Afghanistan. Defendant stated that his service caused him to develop post-traumatic stress disorder (PTSD) at a 100% rating. Defendant testified that he possessed paperwork and received a full disability check for his PTSD diagnosis, but he was not able to introduce any paperwork. Defendant stated that his PTSD gave him anxiety around groups of people and made it hard to breathe at times. Defendant admitted that road rage caused him to smash the headlight on Dubose's vehicle, but he stated that it was not his intention to harm anyone. Defendant testified that his PTSD sometimes caused him to act irrationally. He stated that hearing the gun shot during the incident triggered his PTSD and caused him to drive into Dubose's vehicle. Defendant appeals his sentences and convictions.
First, defendant argues that the prosecutor's statements during closing arguments and questions regarding a prior bad act constituted prosecutorial misconduct and denied defendant a fair trial. We disagree.
"In order to preserve a claim of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction." People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). Because defendant did not object to the prosecutor's arguments or questions at trial this issue was not properly preserved for appellate review. See id. Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights. People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Under plain error review, the defendant bears the burden to show that an error occurred, it was clear or obvious, and it affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error affects substantial rights when it caused prejudice or "affected the outcome of the lower court proceedings." Id. However, even when these requirements are met, this Court has discretion to decide whether the "error resulted in the conviction of an actually innocent defendant or when error seriously affected the fairness, integrity or public reputation of judicial proceedings," therefore requiring a reversal. Id. at 763-764 (quotation marks and citations omitted).
Additionally, reversal is not warranted when a curative instruction could have alleviated the prejudicial effects of an error. People v Unger, 278 Mich App 210, 234; 749 NW2d 272 (2008). "Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to follow their instructions." Id. (citations omitted). "The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial." Brown, 294 Mich App at 382-383. The existence of misconduct is determined on a case-by-case basis by examining the record to "evaluate a prosecutor's remarks in context." Id. at 383. "Prosecutors are typically afforded great latitude regarding their arguments and conduct at trial." Unger, 278 Mich App at 236.
In this case, contrary to defendant's argument, the prosecutor's statement during closing arguments that defendant may have committed a triple murder if Dubose did not have a gun at the time of the incident did not deny defendant his right to a fair trial or affect the outcome of the proceedings. "A prosecutor's comments are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence admitted at trial." People v Dobek, 274 Mich App 58, 64; 732 NW2d 546 (2007). A prosecutor may argue all reasonable inferences that arise from evidence offered at trial, "and need not confine argument to the blandest possible terms." Id. at 66. However, a prosecutor may not simply make a statement urging the jury to convict the defendant on the basis of the jury's sympathy or sense of civic duty. Unger, 278 Mich App at 237. In Unger, this Court determined that, although the prosecutor's closing statements were improper, they did not deny the defendant a fair trial or affect the trial's outcome because the comments were "brief and did not likely deflect the jury's attention from the evidence presented." Id.
Here, the prosecutor stated during closing arguments that it was "a good thing that [Dubose] had a gun, because if she didn't have a gun who knows what could have happened? We could have been here for a double, or possibly a triple murder because that grandchild was in that car as well." The prosecutor's statement was related to his theory of the case that the incident was planned by defendant after he threated to kill Ford and that defendant possessed the intent to inflict great bodily harm upon Dubose and Ford. Moreover, the inference that the incident may have ended in murder if Ford did not have a gun could reasonably be drawn from Ford's testimony regarding defendant's prior death threats. See Dobek, 274 Mich App at 66. On the other hand, the prosecutor's statement was likely prejudicial insofar as it appealed to the jury's sense of civic duty to convict a would-be murder. See Unger, 278 Mich App at 237.
To the extent that the statement constituted an improper appeal to the jury's sense of civic duty, any prejudice could have been alleviated by "a timely objection and curative instruction." See id. at 234, 237. As in Unger, the prosecutor's statement in this case was "brief and did not likely deflect the jury's attention from the evidence presented." See id. at 237. Moreover, the trial court instructed the jury that "the lawyers' statements and arguments are not evidence," and the jury was presumed to have followed this instruction. See id. at 234. Therefore, the prosecutor's closing statements did not deny defendant a fair trial or affect the outcome of the proceedings. See id. at 237.
Similarly, the prosecutor's questions on cross-examination regarding a prior incident when defendant allegedly threatened to kill a police officer were not evidence and did not deny defendant a fair trial or affect the outcome of the proceedings. As an initial matter, insofar as defendant argues that the prosecutor introduced prejudicial and irrelevant other-acts evidence when questioning defendant regarding the alleged prior incident of misconduct, his argument is misplaced because a prosecutor's questions, by themselves, do not constitute evidence. See People v Mesik (On Reconsideration), 285 Mich App 535, 540; 775 NW2d 857 (2009). If defendant had confirmed that he threatened to kill a police officer while testifying as a witness, his confirmation would be evidence. See id. at 540-541. However, defendant denied threatening to kill a police officer. Therefore, even if the prosecutor's questions were improper, they did not constitute other-acts evidence under MRE 404(b) because a "prosecutor's questions are not evidence." See id. at 541. Moreover, the trial court instructed the jury that the "lawyers' questions to witnesses are also not evidence" and should only be considered "as they give meaning to the witnesses' answers," and the jurors are presumed to have followed this instruction. See Unger, 278 Mich App at 234.
A prosecutor's questions must "not convey a message to the jury that the prosecutor had some special knowledge or facts indicating the witness' truthfulness." People v Bahoda, 448 Mich 261, 277; 531 NW2d 659 (1995). However, otherwise improper remarks and questions "might not require reversal if they respond to the issues raised by the defense." People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003). In Bahoda, our Supreme Court found that the prosecutor's questions regarding a witness's plea agreement were not erroneous because they were brief and in response to the defense counsel's attempt to impeach the witness. Bahoda, 448 Mich at 278-281.
In this case, the prosecutor questioned defendant regarding an alleged incident when he threatened to kill a police officer in response to defendant's theory of the case that he lacked the intent to commit AWIGBH because his PTSD was triggered. When the prosecutor's entire line of questioning is considered in context, the prosecutor first asked defendant whether he had PTSD before joining the army and whether he ever acted irrationally before joining the army. These questions set up the prosecutor's goal of using the alleged police-threatening incident to show that defendant acted irrationally even before his PTSD diagnosis.
Although the prosecutor's questions regarding the alleged police-threatening incident could be said "to convey a message to the jury that the prosecutor had some special knowledge" that defendant committed this prior bad act, the questions were brief and in response to defendant's theory of the case. See Bahoda, 448 Mich at 277-281. Therefore, because the prosecutor's questions "respond[ed] to the issues raised by the defense," reversal is not required even if they were otherwise improper. See Callon, 256 Mich App at 330. Moreover, "a timely objection and curative instruction" could have alleviated any prejudice. See Unger, 278 Mich App at 234. Consequently, defendant was not denied a fair trial nor was the outcome affected by the prosecutor's questions. See id. at 237.
Next, defendant argues that the trial court erred by failing to conduct a competency examination after defense counsel addressed the issue of defendant's mental state at a pretrial hearing. We disagree.
"The issue of incompetence to stand trial may be raised by the defense, court, or prosecution." MCL 330.2024. A trial court must raise "the issue of incompetence where facts are brought to its attention which raise a 'bona fide' doubt as to the defendant's competence. However, the decision as to the existence of a 'bona fide doubt' will only be reversed where there is an abuse of discretion." People v Kammeraad, 307 Mich App 98, 138; 858 NW2d 490 (2014) (quotation marks and citation omitted). A trial court abuses its discretion if its decision falls "outside the range of principled outcomes," and "a reasonable judge, situated as the trial court judge whose failure to conduct an evidentiary hearing is being reviewed," would have experienced doubt with respect to the defendant's competency to stand trial. Id. at 138-140 (quotation marks omitted).
A criminal defendant is presumed competent to stand trial and may only be deemed incompetent if "he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rational manner." MCL 330.2020(1). If defendant is shown to be incompetent to stand trial, the trial court "must order the defendant to undergo an examination." MCR 6.125(C)(1). Although there are "no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed," incompetence can be shown through "a wide range of manifestations and subtle nuances, including evidence of a defendant's demeanor, prior medical record, and irrational behavior. Kammeraad, 307 Mich App at 139 (quotation marks omitted). Moreover, this Court should defer to the trial court's assessment of the defendant's demeanor, attitude, and comments because the trial court is able to personally observe the defendant's conduct and behavior. Id. at 141.
In this case, defendant argues that he was shown to be incompetent to stand trial when defense counsel addressed defendant's PTSD diagnosis during a pretrial hearing on defendant's motion to reduce bond. At the bond hearing, defense counsel stated that defendant suffered from PTSD after eight years of military service and described some of defendant's symptoms. Although evidence of a defendant's medical history may demonstrate a lack of competence to stand trial, in this case, defendant exhibited no irrational or otherwise concerning behavior related to his PTSD before the trial court. See Kammeraad, 307 Mich App at 139. In fact, defendant demonstrated that he understood the nature of the proceedings and could rationally assist in his own defense by testifying at trial. See MCL 330.2020(1). Defendant's testimony was fairly articulate and nothing indicated a lack of understanding or inability to assist. See Kammeraad, 307 Mich App at 141.
Because there was nothing on the record to suggest that defendant's PTSD diagnosis prevented him from understanding the nature of the proceedings or assisting in his defense, defendant failed to overcome the presumption that he was competent to stand trial. See id.; see also MCL 330.2020(1). Therefore, a reasonable judge in the same position as the trial court judge would not have doubted defendant's ability to stand trial. See Kammeraad, 307 Mich App at 138-140. Moreover, the trial court assessment of defendant's conduct and behavior should be given deference because the trial court was in the best position to personally observe defendant. See id. at 141.
Next, defendant argues that defense counsel was ineffective by (1) failing to object to the prosecutor's improper questions and arguments; (2) failing to properly raise the issue of defendant's competency to stand trial; (3) failing to argue that defendant acted in self-defense; and (4) failing to investigate and present an insanity defense on the basis of defendant's PTSD. We disagree.
Generally, a defendant's claim of ineffective assistance of counsel is a "mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court "reviews for clear error the trial court's findings of fact and reviews de novo questions of law." People v Lane, 308 Mich App 38, 67-68; 862 NW2d 446 (2014). However, because no Ginther hearing was held in this case, this Court's review is limited to mistakes apparent on the record. See People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000); People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
In order to establish ineffective assistance of counsel, defendant bears the burden to show "(1) that the attorney's performance was objectively unreasonable in light of prevailing professional norms and (2) that, but for the attorney's error or errors, a different outcome reasonably would have resulted." People v Harmon, 248 Mich App 522, 531; 640 NW2d 314 (2001). There is "a strong presumption that counsel's performance constituted sound trial strategy." People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Moreover, defense counsel cannot be ineffective for "failing to make a futile objection." People v Crews, 299 Mich App 381, 401; 829 NW2d 898 (2013).
First, defense counsel was not ineffective by failing to object to the prosecutor's statement during closing arguments that defendant was capable of committing murder and the prosecutor's questions regarding a prior incident when defendant allegedly threatened a police officer. Refraining from making an objection in an effort to avoid "draw[ing] attention to an improper comment" can constitute a reasonable strategy. Bahoda, 448 Mich at 287 n 54. In this case, the challenged comments and questions were "brief and did not likely deflect the jury's attention from the evidence presented." See Unger, 278 Mich App at 237. Therefore, defendant failed to overcome the strong presumption that defense counsel's decision to refrain from objecting to the prosecutor's brief comments and questions constituted a sound trial strategy. See Carbin, 463 Mich at 600; Bahoda, 448 Mich at 287 n 54.
Second, defense counsel was not ineffective by failing to request a competency examination before the trial court or conduct an independent competency evaluation. The record indicates that defendant was competent to stand trial because he rationally testified at trial, which demonstrated an understanding of the proceedings and assisted in his defense. Because this Court's review is limited to mistakes apparent on the record, and there was no evidence on the record that defense counsel failed to adequately investigate defendant's competency or that defendant's PTSD diagnosis caused him to lack the competence to stand trial, defendant failed to show that defense counsel's decision not to request a competency hearing was objectively unreasonable. See Harmon, 248 Mich App at 531; Wilson, 242 Mich App at 352; Sabin (On Second Remand), 242 Mich App at 658-659.
Third, defense counsel was not ineffective by failing to argue that defendant acted in self-defense by backing his vehicle into Dubose and her vehicle. A defendant is only entitled to use nondeadly force against an individual if he or she "has not or is not engaged in the commission of a crime at the time he or she uses force" and "honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual." MCL 780.972(2). In this case, defendant admitted that he committed the crime of malicious destruction of property immediately preceding his use of force by backing his vehicle into Dubose and her vehicle. Therefore, because defendant was not entitled to use force in self-defense against Ford and Dubose after he initiated the incident by cutting them off and smashing their headlights, defense counsel was not ineffective for failing to make a futile argument. See id.; Crews, 299 Mich App at 401.
Finally, defense counsel was not ineffective by choosing to argue a lack of intent defense rather than an insanity defense. Defense counsel has a duty to prepare, investigate, and present all substantial defenses. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). "[F]ailure to conduct a complete investigation" can constitute ineffective assistance of counsel if the failure creates a "reasonable probability that the result of [the] trial would have been different had the evidence in question been presented." People v Grant, 470 Mich 477, 498; 684 NW2d 686 (2004). However, "[d]efense counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." Unger, 278 Mich App at 242. This Court must "not substitute [its] judgment for that of counsel on matters of trial strategy, nor will [it] use the benefit of hindsight when assessing counsel's competence." Id. at 242-243.
To establish an insanity defense, a defendant bears the burden to prove by a preponderance of the evidence that he had a mental illness that caused him to lack "substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform [his] conduct to the requirements of the law" at the time of the charged offense. MCL 768.21a(1), (3). In this case, our review is limited to mistakes apparent on the record. See Wilson, 242 Mich App at 352; Sabin (On Second Remand), 242 Mich App at 658-659. The record contains no proof that defendant was diagnosed with PTSD or that defendant's PTSD caused him to act irrationally during the offense, nor does the record contain evidence regarding defense counsel's investigation, or lack of investigation, into an insanity defense. Therefore, on the basis of the record, defendant failed to overcome the strong presumption that defense counsel's decision to assert a lack of intent defense rather than an insanity defense was part of a sound trial strategy. See Carbin, 463 Mich at 600.
Moreover, defense counsel's argument that defendant lacked the intent to do great bodily harm to Ford or Dubose because he only intended to disable Dubose's vehicle was supported by defendant's testimony. Specifically, defendant testified that he did not intend to harm anyone and that he backed his vehicle in the direction of Ford and Dubose because he was trying to disable their vehicle so that they could not follow him. Therefore, in light of the supporting evidence, defense counsel's decision to assert a lack of intent defense was not objectively unreasonable. See Harmon, 248 Mich App at 531. Because defendant's lack of intent defense was supported by the evidence and defendant failed to show that defense counsel did not adequately investigate or consider an insanity defense, this Court cannot find that defense counsel was ineffective for choosing a reasonable defense strategy. See Carbin, 463 Mich at 600; Unger, 278 Mich App at 242-243.
Next, defendant argues that OV 4 was erroneously assessed 10 points for defendant's AWIGBH convictions because there was no evidence that the victim suffered a severe psychological injury as a result of defendant's actions, and defense counsel was ineffective by failing to object to this scoring error. We disagree.
Defendant's challenge to the scoring of OV 4 was not properly preserved because he failed to raise the issue at sentencing, in a motion for resentencing, or in a motion to remand. See People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). Therefore, this Court reviews defendant's claim for plain error affecting substantial rights. See Carines, 460 Mich at 763. A trial court may assess 10 points for OV 4 if the victim suffers a "serious psychological injury" that may require professional treatment. MCL 777.34(2). The fact that a victim sought treatment may be considered when scoring OV 4, but actual treatment is not required for the assessment of 10 points. Id.; People v Lampe, 327 Mich App 104, 114; 933 NW2d 314 (2019). Serious psychological injuries include "personality changes, anger, fright, or feelings of being hurt, unsafe, or violated," which continue after the offense. Id. at 113-114. "A trial court determines the sentencing variables by reference to the record, using the standard of preponderance of the evidence." People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). When "[t]here was record evidence permitting an inference" that a variable was properly scored, this Court should uphold the trial court's determination for that variable. People v McFarlane, 325 Mich App 507, 536; 926 NW2d 339 (2018). A victim's statements regarding the impact of the defendant's actions may properly be considered as evidence of a victim's psychological injury when assessing points for OV4. Lampe, 327 Mich App at 114.
In this case, the trial court assessed 10 points for OV 4 in relation to defendant's AWIGBH convictions. At the sentencing hearing, Ford and Dubose gave statements regarding the impact of defendant's actions. Although there is no evidence that Dubose sought treatment for a psychological injury, the lack of treatment did not preclude the trial court's 10-point assessment for OV 4. See id. Dubose's testimony that she experienced anxiety for months after the incident, and Ford's statements that she sought counseling to treat PTSD caused by defendant's actions and suffered from nightmares involving defendant provided sufficient record evidence to support the trial court's scoring of OV 4 at 10 points. See Osantowski, 481 Mich at 111; Lampe, 327 Mich App at 113-114. Therefore, the trial court did not plainly err by properly scoring OV 4 at 10 points for defendant's AWIGBH convictions. See Carines, 460 Mich at 763; McFarlane, 325 Mich App at 536. Because defense counsel cannot be ineffective for "failing to make a futile objection," defense counsel was not ineffective by failing to object to the proper scoring of OV 4. See Crews, 299 Mich App at 401.
Finally, defendant argues that he is entitled to resentencing for his AWIGBH convictions because the trial court did not articulate its reasons for imposing unreasonable and disproportionate upward departure sentences on the record at sentencing. We agree.
This Court reviews an upward departure from the sentencing guidelines range for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). The standard of review for the reasonableness of a sentence is "whether the trial court abused its discretion by violating the principle of proportionality . . . ." People v Steanhouse, 500 Mich 453, 477; 902 NW2d 327 (2017). A trial court abuses its discretion when it imposes a sentence that falls outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
A trial court does not abuse its discretion in sentencing a defendant outside the scored minimum guidelines range as long as the sentence is "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Steanhouse, 500 Mich at 474 (quotation marks and citations omitted). However, although the sentencing guidelines are now only advisory, trial courts must continue to consider the guidelines when imposing a sentence and adequately "justify the sentence imposed in order to facilitate appellate review," Lockridge, 498 Mich at 392, including an explanation of "why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been." People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). "[I]f it is unclear why the trial court made a particular departure, an appellate court cannot substitute its own judgment about why the departure was justified." Id. Consequently, where a trial court relies solely on factors that are already considered by the scoring of the OVs, not unique to defendant's crime, or unsupported by the record, the court has failed to provide an adequate justification for its departure sentence. People v Dixon-Bey, 321 Mich App 490, 525, 529; 909 NW2d 458 (2017).
In this case, the trial court did not provide sufficient reasons on the record to facilitate appellate review. The trial court sentenced defendant to 5 to 10 years' imprisonment for each of his AWIGBH convictions, which was three months over his 29 to 57-month minimum sentencing guidelines range. None of the statements made by the trial court at sentencing sufficiently explained why the departure sentence was more proportionate to the offense and defendant than a sentence within his guidelines range. See Smith, 482 Mich at 304. Moreover, the trial court stated that it was sentencing defendant "at the very top of the guidelines," which indicates that the trial court may not have intended to impose a three-month departure sentence. Therefore, we vacate defendant's AWIGBH sentences and remand with instructions for the trial court to either explain its reasoning for the departure sentences or to resentence defendant. See Lockridge, 498 Mich at 392.
We affirm defendant's convictions, vacate defendant's AWIGBH sentences, and remand this matter for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Michael J. Riordan