Opinion
359368
12-18-2023
People of Michigan v. Brad Allen Risner
LC No. 20-003135-FC
Kathleen Jansen Presiding Judge James Robert Redford Christopher P. Yates Judges
ORDER
This Court's opinion and order issued on March 16, 2023, affirmed defendant's conviction on one count of first-degree criminal sexual conduct (CSC-1) in violation of MCL 750.520b(1)(f) (force or coercion), but we remanded the case for a resentencing hearing. Specifically, we directed the trial court to explain the grounds for departure and the reasons for the extent of a departure. We retained jurisdiction.
As we explained, the original sentence of 35 to 70 years' imprisonment imposed by Jackson Circuit Judge Edward J. Grant was defective because it involved a departure that was "twice the maximum minimum sentence of 210 months under the applicable sentencing-guideline range[,]" but "one reason for the sentence that the trial court gave [was] unsupported by the record and another reason [was] unclear." On remand, Jackson Circuit Judge Thomas D. Wilson conducted the resentencing hearing because Judge Grant had retired and the parties stipulated that Judge Wilson could conduct the resentencing hearing for defendant. Judge Wilson sentenced defendant to serve 34 to 70 years' imprisonment, which reflected a substantial upward departure from the sentencing-guidelines range 126 to 210 months. Before imposing that sentence, Judge Wilson addressed components of the sentencing-guidelines scoring and explained why the scoring of offense variables 4 and 8 significantly understated defendant's culpability. In addition, Judge Wilson noted that several of defendant's criminal sexual acts "aren't accounted for in the scoring" of the sentencing guidelines. Because the reasons stated by the trial court sufficiently justify the upward departure in this case, we AFFIRM the sentence of 34 to 70 years' imprisonment imposed on defendant.
Jansen, P.J., respectfully dissents. Although defendant was sentenced by a different judge on remand, he was sentenced to only one year less than his original minimum sentence, which is still nearly double the maximum amount of his sentencing guidelines range. Any sentence imposed by the trial court must be proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Steanhouse, 500 Mich. 453, 475; 902 N.W.2d 327 (2017). "When making this determination and sentencing a defendant, a trial court must justify the sentence imposed in order to facilitate appellate review, which includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." People v Dixon-Bey, 321 Mich.App. 490, 525; 909 N.W.2d 458 (2017) (quotation marks and citations omitted). On remand for resentencing, the trial court failed to explain why such an extreme upward departure sentence was proportionate to defendant and his crime that occurred over 13 years ago. I would therefore vacate defendant's resentence of 34 to 70 years' imprisonment, and remand for resentencing.