STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 15, 2018
Plaintiff-Appellee,
v No. 335398
Wayne Circuit Court
JOHN JAMES, LC No. 16-003682-01-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm (AWIGBH), MCL 750.84, carrying a dangerous weapon with unlawful intent, MCL
750.226, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to 3 to 10 years’ imprisonment for the AWIGBH
conviction, one to five years’ imprisonment for the carrying of a dangerous weapon with
unlawful intent conviction, and two years’ imprisonment for the felony-firearm conviction. We
vacate defendant’s sentences and remand to the trial court for resentencing.
Defendant first argues that his sentence of 3 to 10 years’ imprisonment imposed by the
trial court for his AWIGBH conviction, which departed from the minimum sentencing guidelines
range of 10 to 23 months’ imprisonment, is disproportionate and lacked any justification for the
degree or extent of the departure. We agree.
This Court reviews departure sentences for reasonableness using the principal of
proportionality articulated in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). See
People v Steanhouse, 500 Mich 453, 471-472; 902 NW2d 327 (2017) (Steanhouse II). As this
Court recently explained in People v Dixon-Bey, ___ Mich App ___, ___; ___ NW2d ___ (2017)
(Docket No. 331499); slip op at 16:
“A sentence that departs from the applicable guidelines range will be reviewed by
an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392;
870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate
courts reviewing a sentence for reasonableness on appeal is an abuse of
discretion. [Steanhouse II, 500 Mich at 471.] In Steanhouse, the Michigan
Supreme Court clarified that ‘the relevant question for appellate courts reviewing
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a sentence for reasonableness’ is ‘whether the trial court abused its discretion by
violating the principle of proportionality[.]’ [Id.] The principle of proportionality
is one in which
“a judge helps to fulfill the overall legislative scheme of criminal
punishment by taking care to assure that the sentences imposed
across the discretionary range are proportionate to the seriousness
of the matters that come before the court for sentencing. In
making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the
offender.” [[Id. at 472], quoting Milbourn, 435 Mich [at 651].]
Under this principle, “ ‘[T]he 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 II, 500 Mich at 472,] quoting
Milbourn, 435 Mich at 661. [Dixon-Bey, ___ Mich App at ___; slip op at 16.]
The sentencing guidelines remain an “aid to accomplish the purposes of proportionality .
. . .” Id. at ___; slip op at 18. The sentencing guidelines “ ‘provide objective factual guideposts
that can assist sentencing courts in ensuring that the offenders with similar offense and offender
characteristics receive substantially similar sentences.’ ” Id., quoting People v Smith, 482 Mich
292, 309; 754 NW2d 284 (2008) (brackets omitted). Our Supreme Court has been clear that
while the sentencing guidelines are now merely advisory, they “remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion . . . .” Lockridge, 498 Mich at
391. See also Steanhouse II, 500 Mich at 474-475. As this Court recently explained:
Because 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.
Therefore, 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, People v
Houston, 448 Mich 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
Mich at 657, (2) factors not considered by the guidelines, Houston, 448 Mich at
322-324, see also Milbourn, 435 Mich at 660, and (3) factors considered by the
guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see also
Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, ___ Mich App at ___; slip op at
18-19.]
Other factors to consider “include ‘the defendant’s misconduct while in custody, Houston, 448
Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for
rehabilitation, id.’ ” Dixon-Bey, ___ Mich App at ___; slip op at 19 n 9, quoting People v
Steanhouse (Steanhouse I), 313 Mich App 1, 46; 880 NW2d 297 (2015).
In Milbourn, our Supreme Court observed:
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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. See People v McKinley, 168 Mich App 496, 512;
425 NW2d 460 (1988). (“We do not dispute that a prison sentence—even a
lengthy one—is in order. We conclude, however, that a fifteen-year minimum
sentence for the events that occurred here is disproportionate to the specific acts
committed and the danger involved. Too frequently reasons are given for a
sentence that apply equally to a lesser or greater sentence unless an explanation
is offered on the record for the specific sentence given. Such was the case here.”)
(Emphasis added.) [Milbourn, 435 Mich at 659-660 (footnote omitted).]
Therefore, “[w]hen making this determination and sentencing a defendant, a trial court must ‘
“justify the sentence imposed in order to facilitate appellate review,” ’ Steanhouse, [500 Mich at
470], quoting Lockridge, 498 Mich at 392, 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,’ Smith, 482 Mich at 311.” Dixon-Bey, ___ Mich App at ___; slip op at 19.
Our first step in the reasonableness review is to determine whether there were
“ ‘circumstances that are not adequately embodied within the [offense] variables used to score
the guidelines.’ ” Steanhouse III, ___ Mich App at ___; slip op at 3, quoting Milbourn, 435
Mich at 659-660. Our analysis requires comparing “the stated reasons for exceeding the
guidelines with the scored offense variables (OVs) to determine whether those reasons were
already encompassed within the guidelines.” Steanhouse III, ___ Mich App at ___; slip op at 3.
The relevant inquiry becomes “whether the trial court abused its discretion by imposing a
departure sentence without articulating whether the guidelines adequately took into account the
conduct alleged to support the particular departure imposed.” Id.
In sentencing defendant above the minimum sentencing guidelines range for his
AWIGBH conviction, the trial court articulated that it believed defendant’s crime was senseless.
The trial court did not understand why defendant thought it was a good idea to put a gun in the
trunk of a car and use it against another human being in response to being taunted by the victim.
The trial court noted that defendant’s decision to shoot at the victim “was not something that was
spur of the moment, that he didn’t think about. He was upset with the victim for supposedly
making fun of him and he wanted to show him, you know, you can’t make fun of me kind of
thing[.]” This reasoning speaks to the nature of this particular defendant and his crime, which
were not taken into consideration by the guidelines.
However, the trial court also articulated reasoning that was not unique to defendant or to
defendant’s crime. Specifically, the trial court pontificated at length regarding recidivism
amongst offenders under the age of 22, and questioned how defendant could not have learned
from other young black men who have “shot guns and gotten prison time[.]” Specifically, the
trial court relied on baseball statistics, and opined that not relying on statistics is what got Kirk
Gibson fired. A defendant’s potential for rehabilitation or propensity for recidivism and
misconduct while in custody are factors not properly recognized by the guidelines, and can be
considered by a trial court when imposing a departure sentence. Steanhouse I, 313 Mich App at
46. However, they were not a proper consideration here: the record is clear that defendant has no
prior criminal history whatsoever, expressed remorse for his crime, and had strong family
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support. The trial court’s references to rehabilitation and recidivism were generic, and not
specifically related to the circumstances surrounding this defendant and his crime.
Further, not only does the trial court have an obligation to articulate sufficient reasons for
imposing a departure sentence, but it has a duty to explain why the extent of the departure is
warranted. People v Steanhouse (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2017)
(Docket No. 318329) (Steanhouse III); slip op at 5; Dixon-Bey, ___ Mich App at ___; slip op at
19. See also Smith, 482 Mich at 304 (a trial court “must explain why the sentence imposed is
more proportionate than a sentence within the guidelines recommendation would have been.”).
On the record before us, it is difficult to ascertain the trial court’s reasoning for the extent of the
departure sentence imposed, and its rationale regarding whether the extent of the departure
imposed was proportionate to the seriousness of the crime. Accordingly, we conclude that the
trial court “ ‘abused its discretion in applying the principle of proportionality by failing to
provide adequate reasons for the extent of the departure sentence imposed,’ ” and remand for
resentencing is required. Steanhouse III, ___ Mich App at ___; slip op at 15, quoting Steanhouse
II, 500 Mich at 476.
Defendant also argues that the sentence imposed by the trial court constituted cruel and
unusual punishment. It is premature to consider whether defendant’s departure sentence is cruel
or unusual because defendant is entitled to resentencing, and it remains to be determined
whether, upon resentencing, the trial court will impose a proportionate sentence or a sentence
that will be within the appropriate guidelines range. Accordingly, defendant’s claim that his
current sentence is cruel or unusual is moot due to the possibility of an altered sentence.
We vacate defendant’s sentences and remand for resentencing in accordance with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Patrick M. Meter
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