Opinion
361027
02-16-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ARCHIE NOAH PROFFITT, Defendant-Appellant.
UNPUBLISHED
No. 361027 Jackson Circuit Court LC No. 20-003205-FH
Before: GLEICHER, C.J., and Mark T. Boonstra and Thomas C. Cameron, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court's judgment of sentence. Defendant pleaded guilty to one count of possession of less than 25 grams of Fentanyl, MCL 333.7403(2)(a)(v) and was sentenced to two to four years' imprisonment with credit for 25 days served. We affirm.
People v Proffitt, unpublished order of the Court of Appeals, entered June 1, 2022 (Docket No. 361027).
In Steanhouse III, this Court found that only one of the trial court's reasons for departing from the sentencing guidelines was valid and that the trial court had not adequately explained the extent of its departure. People v Steanhouse, 322 Mich.App. 233, 242-243; 911 N.W.2d 253 (2017). On appeal from this Court's opinion in Steanhouse III, the Supreme Court did not take issue with this Court's proposition that a sentencing court must explain the extent of its departure. Our Supreme Court vacated only that part of our opinion that remanded for resentencing. It found that, "[r]ather than remanding only for resentencing, the Court of Appeals should have remanded for the trial court to either resentence or to further articulate its reasons for departure." People v Steanhouse, 504 Mich. 969; 933 N.W.2d 276 (2019) (Steanhouse IV).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In August of 2020, a police officer initiated a traffic stop of defendant's vehicle after observing that his vehicle had an improper license plate. During the stop, defendant admitted that he did not have a valid driver's license. He was arrested and a bag of suspected heroin was found in his wallet. The officer also searched defendant's person and found 11 syringes in his pants pocket.
Defendant pleaded guilty to one count of possession less than 25 grams of Fentanyl, MCL 333.7403(2)(a)(v). Defendant's minimum guideline sentencing range was scored at 0 to 11 months' incarceration. While defendant was on bond in this case, he was arrested and pleaded guilty to retail fraud. He was also charged in another case with a number of other offenses including: possession of drug paraphernalia, retail fraud, resisting and obstructing a police officer, and possession of analogues.
The trial court departed from the recommended sentencing guidelines, sentencing defendant to two to four years' imprisonment. The trial court cited defendant's prior probationary opportunities, his inability to rehabilitate, and his conviction while on bond in support of this upward departure. Defendant argues on appeal that his sentence was unreasonable and disproportionate.
II. STANDARD OF REVIEW
Sentences that depart from the sentencing guidelines minimum threshold are reviewed for reasonableness. People v Lockridge, 498 Mich. 358, 365; 870 N.W.2d 502 (2015). "[T]he standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion." People v Steanhouse, 500 Mich. 453, 471; 902 N.W.2d 327 (2017). In Michigan, the sentencing guidelines are not mandatory, but are advisory in all cases. Id. at 470; citing Lockridge, 498 Mich. at 392. However, courts must "continue to consult the applicable guidelines range and take it into account when imposing a sentence ....[and] justify the sentence imposed in order to facilitate appellate review." Lockridge, 498 Mich. at 392. Even so, "the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range." Steanhouse, 500 Mich. at 475 (quotation marks and citation omitted). A trial court abuses its discretion when the sentence imposed by the trial court is disproportionate to the seriousness of the circumstances involving the offense and the offender. Id. at 461.
III. LAW AND ANALYSIS
Defendant argues the trial court abused its discretion when it imposed a sentence greater than what was recommended by the sentencing guidelines. We disagree.
Because this case involves a departure from the sentencing guidelines, we must determine whether the sentence imposed was nevertheless reasonable. We therefore employ the Milbourn principles of proportionality. Steanhouse, 500 Mich. at 459-460. These principles 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." People v Dixon-Bey, 321 Mich.App. 490, 525; 909 N.W.2d 458 (2017) (citations omitted). Factors not considered by the guidelines include "the defendant's misconduct while in custody, the defendant's expressions of remorse, and the defendant's potential for rehabilitation." People v Walden, 319 Mich.App. 344, 353; 901 N.W.2d 142 (2017) (citation omitted).
People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990).
The highest score under PRV 6 is 20 points.
At sentencing, the trial court considered several factors unique to defendant, including his age, his criminal record, his eight prior probationary opportunities-five of which were revoked- and his completion of substance abuse treatment. But, the trial court seems to have weighed more heavily defendant's criminal behavior after his arrest in this case, noting that defendant had picked up six charges during this time. According to the trial court, the guidelines did not take into consideration the substantial amount of criminal activity in which defendant had engaged while he was out on bond in this case. Due to these factors, the trial court imposed a sentence greater than the recommended guidelines minimum sentence range.
Again, the "key test" is whether the sentence imposed is proportionate to the seriousness of the matter. Steanhouse, 500 Mich. at 475. As noted, defendant pleaded guilty to one count of possession of less than 25 grams of Fentanyl, MCL 333.7403(2)(a)(v). A defendant convicted of this offense is "guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both." MCL 333.7403(2)(a)(v). Although defendant claims the sentence imposed was unreasonable in light of his guidelines score and the probation department's recommendation, the trial court properly considered additional factors, including defendant's criminal activity after his arrest in this case. Therefore, we conclude that the trial court's upward departure of 13 months from the recommended guideline range was not an abuse of discretion.
Affirmed.
Elizabeth L. Gleicher, C.J. (dissenting)
Defendant Archie Noah Proffitt pleaded guilty to one count of possession of less than 25 grams of fentanyl, MCL 333.7403(2)(a)(v). His minimum guideline sentencing range was scored at 0 to 11 months' incarceration. The trial court more than doubled the top of this range, imposing a minimum sentence of two years' imprisonment. I agree that the trial court identified at least one ground for an upward departure. But because the trial court entirely neglected to justify the extent of the departure sentence it imposed, I respectfully disagree with my colleagues' conclusion that the sentence imposed was proportionate under People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990).
When assessing the proportionality of a departure sentence, the advisory sentencing guidelines provide the" 'best "barometer" of where on the continuum from the least to the most threatening circumstances a given case falls.'" People v Dixon-Bey, 321 Mich.App. 490, 530; 909 N.W.2d 458 (2017), quoting Milbourn, 435 Mich. at 656. A sentencing court may depart from the guidelines, however, 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, For example, a trial court may depart from the guidelines when the guidelines "do not adequately account for important factors legitimately considered at sentencing." Id.
In addition to identifying reasons for departing from a guidelines sentence, a court must also justify the extent of the departure. The court must explain "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). In so determining, the sentencing court "must explain how the extent of the departure is proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse (On Remand), 322 Mich.App. 233, 239; 911 N.W.2d 253 (2017) (Steanhouse III), vacated in part 504 Mich. 969 (2019).1 See also Milbourn, 435 Mich. at 659-660 ("Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality.").
Here, the sentencing court made no effort to explain why a minimum sentence more than double the upper guidelines limit was more proportionate than a sentence exceeding the guidelines by a different amount would have been. Proffitt's prior record variable (PRV) score was 30 and his offense variable (OV) score was zero, placing placing him in the D-1 section of the applicable grid. Even were his PRV level increased by 20 points to reflect the maximum score under PRV 6, which considers an offender's relationship with the criminal justice system and accounts for criminal conduct on probation or while awaiting sentencing,2 the top of the sentencing range would be 17 months. The court's reasons for departure did not shed light on why a 24-month sentence was more proportionate than a 17-month sentence, or any other sentence rooted in the proportionality principles reflected in the guidelines. I would remand for that articulation.