Opinion
Docket No. 328097.
11-29-2016
PEOPLE v. STEVENS.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Christopher M. Allen, Assistant Attorney General, for the people. Ann M. Prater, Attorney & Counselor At Law, PLLC (by Ann M. Prater), for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Christopher M. Allen, Assistant Attorney General, for the people.
Ann M. Prater, Attorney & Counselor At Law, PLLC (by Ann M. Prater), for defendant.
Before: RONAYNE KRAUSE, P.J., and O'CONNELL and GLEICHER, JJ.
GLEICHER, J.
A jury convicted Monica M. Stevens of third-offense operating while intoxicated, MCL 257.625. The trial court departed upward from the guidelines and sentenced Stevens to 22 to 90 months' imprisonment. The court also ordered Stevens to pay a total of $1,472, including $774 in court costs. We now remand for proportionality review as required by People v. Steanhouse, 313 Mich.App. 1, 46–49, 880 N.W.2d 297 (2015), and for the trial court to articulate a factual basis for its imposition of costs.
I. BACKGROUND
On the evening of September 20, 2014, a passerby found Stevens behind the driver's seat of her vehicle, which was in a ditch alongside a roadway. Stevens admitted that she had been drinking for approximately nine hours. The Good Samaritan testified that Stevens smelled strongly of alcohol, slurred her speech, and stumbled her way out of the vehicle. A responding officer reported that Stevens failed several field sobriety tests, and a breathalyzer test indicated that her blood alcohol level was 0.25%. Stevens denied that she drove that evening. She testified that she fell asleep at her ex-husband's house and awoke in her car with no memory of how she got there. She claimed that her ex-husband drove her to the scene and then placed her in the driver's seat. The jury rejected this explanation and convicted Stevens as charged.
Before sentencing, the Department of Corrections scored all applicable offense and prior record variables and determined that Stevens's then-mandatory minimum sentencing guidelines range was 0 to 13 months. The trial court departed upward from the guidelines, sentencing Stevens to 22 to 90 months' imprisonment. In doing so, the court explained:
Miss Stevens, I spent a lot of time on your case, and the Court staff will tell you that I took great care into fashioning a Sentence for you that I think is appropriate, and I don't think zero to 13 adequately handles this matter. I think that your matter presents substantial and compelling reasons to depart upwards from the recommended
guideline range. Your prior record variables are scored at 15 points based on two prior misdemeanor convictions and two prior low severity convictions. The guidelines in your case ... don't adequately account for the following factors that the Court relies on in performing an upward departure.
You've had two previous convictions of OUIL Third. Two. This is your third,
third. You've had extensive histories of alcohol related crimes, Miss Stevens. You've had a total of five OUILs, with a sixth that was dismissed in September of the year 2000. As I already mentioned, your blood alcohol level was [.]29.[ ] The legal limit in the State of Michigan is [.]08, you were over three times the legal limit.
* * *
What's important is that this is your third felony for drunk driving, that's what's important.
Your previous and persistent failure to rehabilitate is important. Five previous courses of substance abuse counseling, four of which says you completed and were successful, yet you returned to drinking. Your prospects for rehabilitation are further lowered based on the fact that you've undergone community service for OUIL, work release, tether, and jail time. These previous sanctions along with the treatment that we've already talked about, has little positive effect on you, Miss Stevens.
You admit no responsibility in your description of this offense. In fact, you've argued that you're framed. I'm not basing your Sentence on this, not at all. I'm just pointing it out so this record reflects that, well, it further supports that rehabilitation is not a likely outcome. You're unlikely to rehabilitate, because you don't believe that you've done anything wrong. That suggests the need to emphasize punishment, and to protect society as primary goals for this Sentence.
It is unclear from the record where the trial court gleaned this number; the evidence at trial supported a 0.25% blood alcohol level.
And Miss Stevens, any one of these factors that this court just placed on the record would keenly and irresistibly grab this Court's attention to the extent that the Court would be compelled to depart upward.
* * *
The Sentence I'm imposing is more proportional to this offense, because it accurately reflects the aggravating factors I've already discussed, and the need to impose a more severe sanction than those you've already faced.
Stevens now appeals her sentence.
II. DEPARTURE SENTENCE
July 29, 2015 marked a sea change in Michigan's sentencing jurisprudence. On that day, the Michigan Supreme Court ruled that the mandatory minimum sentence ranges of the legislative sentencing guidelines were unconstitutional as they required sentencing based on judicially found facts. People v. Lockridge, 498 Mich. 358, 364, 870 N.W.2d 502 (2015). To remedy this deficit, the Court severed the mandatory sentencing provisions and rendered the guidelines advisory only. Id.
In relation to departure sentences, Lockridge, 498 Mich. at 392, 870 N.W.2d 502, instructed that appellate courts must conduct a reasonableness review. As noted by the dissent in this case, the Supreme Court stated in Lockridge, 498 Mich. at 394, 870 N.W.2d 502, that a defendant cannot establish plain error supporting relief when the court imposed an upward departure sentence and explained its reasons on the record. However, in Steanhouse, 313 Mich.App. at 46–49, 880 N.W.2d 297, this Court held that when a trial court imposed a departure sentence before the resolution of Lockridge, we must remand for proportionality review pursuant to People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), utilizing the procedure set forth in
United States v. Crosby, 397 F.3d 103, 117–118 (C.A.2, 2005).
In People v. Masroor, 313 Mich.App. 358, 373, 880 N.W.2d 812 (2015), a panel of judges requested a conflict panel to resolve a difference of opinion with Steanhouse. The vote fell short, however, and Steanhouse remains binding precedent. See People v. Masroor, 313 Mich.App. 358, 880 N.W.2d 812 (2015). Accordingly, even if this Court believes a defendant's pre-Lockridge departure sentence is reasonable and adequately supported by the trial court's record statements, we must remand to allow the defendant an opportunity to reiterate his or her request for resentencing and then for continued proceedings consistent with Crosby. We are not permitted to presume that the lower court would have embarked on the same reasoning had it been aware that its judgment was controlled by Milbourn 's reasonableness analysis. Nor are we permitted to disregard the binding precedent of this Court.
Although the trial court in this case went to great lengths to support its sentencing decision, it did so on the assumption that the guidelines were mandatory and any departure had to be based on substantial and compelling reasons that keenly and irresistibly grabbed the court's attention. The court did not specifically consider, as required by Steanhouse 's readoption of the Milbourn standard, whether the sentence imposed was "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Milbourn, 435 Mich. at 636, 461 N.W.2d 1. We are bound to remand this case to the trial court pursuant to Steanhouse.
III. COSTS
Stevens also contends that the trial court improperly ordered her to pay $774 in unspecified court costs, in violation of MCL 769.1k. MCL 769.1k(1)(b)(iii ), as amended by 2014 PA 352, allows trial courts to impose state costs against a criminal defendant if "reasonably related to the actual costs incurred by the trial court...." Under this statute, trial courts must "establish a factual basis" from which this Court can "determine whether the costs imposed were reasonably related to the actual costs incurred by the trial court." People v. Konopka (On Remand), 309 Mich.App. 345, 359–360, 869 N.W.2d 651 (2015). The prosecution agrees that the trial court did not establish this factual basis in this case and that remand is necessary.
Accordingly, we remand for further sentencing proceedings consistent with Lockridge, Crosby, and Steanhouse, and for the trial court to articulate a factual basis for its imposition of costs. We do not retain jurisdiction.
RONAYNE KRAUSE, P.J., concurred with GLEICHER, J.
O'CONNELL, J. (dissenting).
I respectfully dissent. I write simply to state that regarding departure sentences, People v. Steanhouse, 313 Mich.App. 1, 48, 880 N.W.2d 297 (2015), is in conflict with People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). For that reason, this Court is required to follow the strictures set forth in the Supreme Court's Lockridge opinion. If the constraints set forth in the Lockridge opinion are followed, defendant, Monica M. Stevens, is not entitled to a remand for a Crosby hearing. See United States v. Crosby, 397 F.3d 103 (C.A.2, 2005). I would affirm the well-reasoned decision of the learned trial court.
This case involves a departure sentence. It does not involve an Alleyne Sixth Amendment challenge, nor does it involve a challenge to the misscoring of the guidelines. In such instances, Lockridge compels us to review a defendant's sentence for plain error. If no error occurred, no remand is necessary. In the present case, no error has occurred. In my opinion, it defies logic to remand a case for resentencing when the offense variables (OVs) are correctly scored, when no valid Alleyne challenge exists, and when the trial court stated valid reasons for why its chosen sentence was more proportionate to both the offense and the offender.
Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
This Court reviews for reasonableness, under an abuse-of-discretion standard, the trial court's decision to depart upward from the sentencing guidelines. People v. Masroor, 313 Mich.App. 358, 373, 880 N.W.2d 812 (2015). The trial court abuses its discretion when its sentence is not proportional under People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), and its progeny. Masroor, 313 Mich.App. at 373–374, 880 N.W.2d 812.
In imposing a departure sentence that exceeded the guidelines range by nine months, the trial court stated that the recommended sentence did not "adequately handle[ ] this matter" and that it would fashion an "appropriate" sentence. The trial court explained that the guidelines did not adequately account for defendant's extensive history of alcohol-related crimes, including five prior convictions of operating while intoxicated, that defendant's blood alcohol content was three times over the legal limit, or that defendant had "previous and persistent failure to rehabilitate." Stevens had participated in five previous courses of alcohol abuse counseling but continued to drink. Finally, the trial court noted that Stevens did not admit responsibility for the crime and was not likely to be rehabilitated. The trial court specifically stated that its sentence
"is more proportionate to this offense, because it accurately reflects the aggravating factors I've already discussed, and the need to impose a more severe sanction than those you've already faced."
The recommended guidelines range for Stevens's sentence was 0 to 13 months' imprisonment. The trial court exceeded the guidelines range by nine months and sentenced Stevens to a term of 22 to 90 months' imprisonment. In my opinion, this was a reasonable and well-deserved sentence.
The Lockridge question at issue in this case is whether Stevens, a fifth-time, multiple-drunk-driving offender, is entitled to be resentenced or at least entitled to a remand for a Crosby hearing. The answer to this question depends on whether Stevens can show plain error in her sentencing process. On appeal, Stevens does not contest the scoring of her guidelines, nor can she establish plain error. I therefore conclude that Lockridge addresses this issue perfectly: Stevens is not entitled to be resentenced.
In this case, I would adopt the identical reasons to apply as stated in my dissent in People v. Shank, 313 Mich.App. 221, 228–230, 881 N.W.2d 135 (2015) ( O'CONNELL, J., dissenting), as follows:
If a defendant does not challenge the scoring of his or her offense variables
(OVs) at sentencing on Alleyne grounds, our review is for plain error affecting that defendant's substantial rights. Lockridge, 498 Mich. at 392 . In this case, [defendant] did not challenge the scoring of his OV scores on Alleyne grounds. Our review is for plain error.
To be entitled to relief under plain-error review, a defendant must show that the error affected the outcome of the lower court proceedings. Id. at 393 [881 N.W.2d 135 ]. The Lockridge court aptly stated the application of the plain error doctrine
in cases—like [defendant's]—in which the defendant did not preserve an Alleyne challenge below and the trial court departed upward:
Because [the defendant] received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the trial court necessarily had to state on the record its reasons for departing from that range), the defendant cannot show prejudice from any error in scoring the OVs in violation of Alleyne. [Id. at 394, 881 N.W.2d 135 (emphasis altered).]
If a defendant's minimum sentence involved an upward departure, that defendant "necessarily cannot show plain error...." Id. at 395 n. 31 [870 N.W.2d 502 ]. "It defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guidelines were merely advisory." Id.
In this regard, the Steanhouse Court's decision to remand in that case was contrary to the precepts of stare decisis. As in Lockridge, the trial court in Steanhouse departed upward from the recommended sentencing range. Steanhouse, 313 Mich.App. at 42 . The defendant in Steanhouse, like the defendant in Lockridge, did not challenge the scoring of his OVs on Alleyne grounds. Id. The Court of Appeals in Steanhouse recognized that the defendant could not establish a plain error under Lockridge. However, the Court proceeded to review the defendant's sentence and remand for resentencing anyway, directly contrary to the language of Lockridge providing that the Lockridge defendant was not entitled to resentencing under the exact same circumstances.
I would follow Lockridge without declaring a conflict panel. The reason is simple—this Court need not convene a conflict panel to follow a rule articulated by the Supreme Court, even if a decision of this Court conflicts with the Supreme Court's decision. Charles A Murray Trust v. Futrell, 303 Mich.App. 28, 49, 840 N.W.2d 775 (2013). Until the Supreme Court's decision is overruled by the Supreme Court itself, the rules of stare decisis
require this Court to follow the Supreme Court's decision. Paige v. Sterling Hts., 476 Mich. 495, 524, 720 N.W.2d 219 (2006). This Court simply "does not have the authority to recant the Supreme Court's positions." Murray Trust, 303 Mich.App. at 49 . Under the rule of stare decisis, this Court must follow a decision of the Supreme Court even if another panel of this Court decided the same issue in a contrary fashion. Id. Because Steanhouse ignored the clear directives of the Michigan Supreme Court, it is against the rules of stare decisis to follow the procedures in that case. I cannot in good conscience violate the rules articulated in Lockridge.
A remand under United States v. Crosby, 397 F.3d 103 (C.A.2, 2005), is
used to determine whether prejudice resulted from an error. People v. Stokes, 312 Mich.App. 181, 200–201, 877 N.W.2d 752 (2015). The Lockridge court stated that no prejudice could result from the type of "error" involved in this case. [Defendant] cannot show plain error; therefore, he is not entitled to relief. I conclude that a Crosby remand is not appropriate or necessary in this case. [Third alteration in Shank. ]
I would affirm the trial court's well-reasoned decision in this matter. The sentence is proportionate both to the crime and the offender. No OVs have been misscored in violation of the Alleyne decision. No plain error has occurred. It is clearly a waste of judicial resources to remand this case to the trial court.
This Court's recent opinion in People v. Ambrose, 317 Mich.App. 556, 565, 895 N.W.2d 198, 204 (2016) (Docket No. 327877), further supports my position:
Further, even if we were to assume that the trial court erred by scoring OV 9 at 10 points, we would conclude that resentencing is not required. Under People v. Lockridge, 498 Mich. 358, 365, 870 N.W.2d 502 (2015), a trial court's departure from a defendant's recommended sentencing guidelines range is reviewed by this Court for reasonableness. Defendant has not challenged the trial court's departure from the guidelines as unreasonable. In light of the facts of this case, the trial court's lengthy articulation of its reasons for departing from the guidelines, and the minor extent of the departure, we hold that the departure was reasonable. Although in People v. Biddles, 316 Mich.App. 148, 156–158, 896 N.W.2d 461 (2016), we recently clarified the distinction between [People v. Francisco, 474 Mich. 82, 92, 711 N.W.2d 44 (2006) ] errors and Lockridge errors, Biddles did not deal with an upward departure. We do not read Biddles as requiring remand for a Francisco error when we have determined (as in this case) that a sentencing departure is reasonable under Lockridge and that the sentence "did not rely on the minimum sentence range from ... improperly scored guidelines...." Lockridge, 498 Mich. at 394 ; see also People v. Mutchie, 468 Mich. 50, 52, 658 N.W.2d 154 (2003) (holding that it was unnecessary to determine if there was a scoring error under OV 11 that required resentencing when the sentence imposed was a departure "above the recommended range in any event, and the court expressly stated the ... reasons that justified the departure").
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