If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 27, 2023
Plaintiff-Appellee,
v No. 361197
Monroe Circuit Court
TRISTIAN MICHAEL HORNEY, LC No. 2019-245452-FH
Defendant-Appellant.
Before: CAMERON, P.J., and BORRELLO and O’BRIEN, JJ.
PER CURIAM.
Following a plea of guilty to one count of third-degree home invasion, MCL 750.110a(4),
defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to jail time and
probation. After defendant violated the terms of his probation, the trial court revoked defendant’s
probation and imposed an above-guidelines sentence of 3 to 7½ years’ imprisonment. Defendant
now appeals as on leave granted.1 Defendant contends that he is entitled to resentencing because
(1) his sentence exceeded the caps for technical probation violations pursuant to MCL 771.4b(1),
(2) the court improperly justified its sentence based on defendant’s failure to pay restitution
without conducting an ability-to-pay analysis as required by MCL 769.5(6), and (3) his departure
sentence was unreasonable and disproportionate. We conclude that the trial court failed to fully
articulate the reasons justifying the sentence it imposed, particularly regarding the extent of its
1
This Court initially denied defendant’s application for leave to appeal. See People v Horney,
unpublished order of the Court of Appeals, entered June 13, 2022 (Docket No. 361197). Defendant
appealed this denial to the Michigan Supreme Court, and the Supreme Court, in lieu of granting
leave to appeal, remanded the case to this Court as on leave granted. People v Horney, ___ Mich
___; 984 NW2d 215 (2023).
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departure sentence, and remand for the trial court to further explain its reasoning or resentence
defendant.2
I. BACKGROUND
This appeal arises from defendant’s entry of a dwelling without permission and destruction
of property therein. As previously indicated, defendant pled guilty, as a second-offense habitual
offender, to one count of third-degree home invasion. Defendant was initially sentenced to 200
days in jail, with credit for 87 days served, two years of probation and ordered to pay restitution
of $1,370, plus other costs, fines, and fees.
From October 2020 through May 2021, the trial court authorized numerous bench warrants
alleging that defendant violated his probation. The most recent of these alleged that defendant
violated probation by engaging in retail fraud in August 2020; the warrant also alleged that
defendant was convicted of retail fraud, and it included eight other alleged violations not
specifically at issue here. That same day this warrant was filed, defendant, in a separate case,
pleaded guilty to one count of retail fraud from August 2020. Defendant entered into a plea
agreement whereby he pled guilty to violating his probation in the instant case based on his retail-
fraud conviction, in exchange for dismissal of the remaining alleged probation violations.
Following his plea, the trial court committed defendant to jail for 165 days, with credit for 119
days served; placed him on a tether for 90 days after release; and extended his probation another
year.
Three months later, the trial court authorized a bench warrant alleging that defendant again
violated his probation by (1) committing retail fraud in early August 2021 (2) using or possessing
a controlled substance in late July 2021, and (3) failing to follow his tether schedule multiple times.
The trial court held a probation violation hearing and found defendant guilty on all three probation
violations. A Probation Violation Report (PVR) from the Michigan Department of Corrections
(MDOC) recommended that defendant’s probation be revoked and he be sentenced to 3 to 7½
years’ imprisonment, which was above the guidelines minimum sentence range of 7 to 28 months
for defendant’s offense of third-degree home invasion.
The trial court revoked defendant’s probation and imposed the recommended above-
guidelines sentence. The court noted the guidelines minimum sentence range of 7 to 28 months
for defendant’s offense and reasoned as follows:
[Defendant has] been here 100 times it seems like and, you know, it’s not ending
well. Not a nickel has been paid in restitution, even though this is a ‘19 case[,] or
any of the other costs. The [PVR], which is not objected to says that [defendant]
told the agent that [he] didn’t want to work with the Michigan Rep staff and [he]
didn’t want to enter mental health court. [Defendant] got let out of jail early
because you punched the wall and [he] got an infection in [his] hand. So, let out
early and as a result of that, then [defendant] tested positive for Fentanyl. [He]
2
In reaching this conclusion, we make no holding regarding the proportionality of the sentence
imposed.
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committed retail fraud while on tether, all of which [he was] convicted of at the
violation of probation hearing.
It’s clear that [defendant is] not capable of following or willing to follow
the terms and conditions of probation. People who get treatment want to be helped.
I don’t think that’s true here. You know, actions speak louder than words and
[defendant’s] actions clearly outweigh what [he is] telling me today.
This appeal followed.
II. STANDARDS OF REVIEW
We review the trial court’s imposition of a sentence for an abuse of discretion, which occurs
when “[a] decision falls outside the principled range of outcomes.” People v Malinowski, 301
Mich App 182, 185; 835 NW2d 468 (2013). Questions of law regarding sentencing, including
issues of statutory interpretation, are reviewed de novo. Id.; see also People v Butler, 315 Mich
App 546, 549; (2016). “In interpreting a statute, we first look to the statute’s plain language. If
the statute’s language is clear, we apply it as written.” Butler, 315 Mich App at 449-550. “A trial
court necessarily abuses its discretion when it makes an error of law.” People v Coleman, 327
Mich App 430, 443; 937 NW2d 372 (2019).
Further, a sentence above the guidelines range is reviewed for reasonableness. People v
Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458 (2017). We also apply an abuse of discretion
standard when reviewing the reasonableness of a sentence. Id. Specifically, we must ask “whether
the trial court abused its discretion by violating the principle of proportionality” set forth in People
v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), abrogated by statute as recognized in People v
Armisted, 295 Mich App 32, 51-52 (2011), readopted in People v Steanhouse, 500 Mich 453, 471-
475 (2017). People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017).
However, we conclude that defendant failed to preserve his claims of legal error separate
from his proportionality argument by never raising these at sentencing, so we review them for
plain error affecting substantial rights. People v Kimble, 470 Mich 305, 312; 684 NW2d 669
(2004); see also People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015) (requiring the
defendant to object at sentencing to preserve his constitutional sentencing challenges). To avoid
forfeiture under plain error review,
three requirements must be met: 1) error must have occurred, 2) the error was plain,
i.e., clear or obvious, 3) and the plain error affected substantial rights. The third
requirement generally requires a showing of prejudice, i.e., that the error affected
the outcome of the lower court proceedings. . . . Reversal is warranted only when
the plain, forfeited error resulted in the conviction of an actually innocent defendant
or when an error seriously affected the fairness, integrity or public reputation of
judicial proceedings[] independent of the defendant’s innocence. [People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotation marks and citations
omitted).]
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We acknowledge that “[t]here are no special steps that a defendant must take to preserve
the question whether the[ir] sentence was proportional,” and “there is no preservation requirement
when the trial court imposes a sentence more severe than sentencing guidelines recommend,”
People v Walden, 319 Mich App 344, 350-351; 901 NW2d 142 (2017). But Walden cited People
v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008), for this latter, general proposition, and Smith’s
statement of this rule relied on MCL 769.34(7), see Smith, 82 Mich at 300, 300 n 18, which does
not apply to defendant’s grounds for relief concerning MCL 771.4b(1) and MCL 769.5(6).
Accordingly, the provision this Court set forth in Walden only allows for appeal “on grounds that
[the sentence] is longer or more severe than the appropriate sentence range,” MCL 769.34(7).
Relative to this matter, the issue of whether the sentence “…is longer or more severe than the
appropriate sentence range,” is addressed under the separate issue regarding the reasonableness
and proportionality of defendant’s departure sentence. Further, although an above-guidelines
sentence is appealable under MCL 769.34(10) even when a defendant fails to raise a particular
issue at sentencing, in a motion for resentencing, or in a motion to remand, Kimble, 470 Mich at
311-312, subsection 10 is specific to “error[s] in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant’s sentence,” MCL 769.34(10), which,
despite defendant’s contentions to the contrary, are not at issue in this case.
III. ANALYSIS
A. MCL 771.4b(1)
Defendant argues that he is entitled to resentencing because his sentence exceeded the caps
for technical probation violations pursuant to MCL 771.4b(1).
Defendant argues that the trial court erred by not considering the jail caps under MCL
771.4b(1), failing to make any distinction between the technical and nontechnical probation
violations at issue, and never addressing why its departure sentence was more appropriate than
these jail caps. Defendant does admit that he was found guilty on one nontechnical probation
violation because of the August 2021 retail-fraud charge against him, however, he claims that
because this charge has since been dropped, he was not found guilty of a nontechnical probation
violation. Defendant argues, therefore, that the two technical probation violations for his drug use
and tether violations are all that remain, and he “should only be sentenced” on these, with MCL
771.4b(1) limiting punishment for such technical violations to minimal jail time.
MCL 771.4b(1) provides, in relevant part:
Except as otherwise provided in this section, a probationer who commits a technical
probation violation and is sentenced to temporary incarceration may be incarcerated
for each technical violation as follows:
* * *
(b) For a technical violation committed by an individual who is on probation
because he or she was convicted of or pleaded guilty to a felony:
(i) For a first violation, jail incarceration for not more than 15 days.
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(ii) For a second violation, jail incarceration for not more than 30 days.
(iii) For a third violation, jail incarceration for not more than 45 days.
(iv) For a fourth or subsequent violation, jail or prison incarceration for any
number of days, but not exceeding the total of the remaining eligible jail or prison
sentence.
Pursuant to MCL 771.4b(9)(b):
“Technical probation violation” means a violation of the terms of a probationer’s
probation order that is not listed below, including missing or failing a drug test,
subparagraph (ii) notwithstanding. Technical probation violations do not include
the following:
(i) A violation of an order of the court requiring that the probationer have
no contact with a named individual.
(ii) A violation of a law of this state, a political subdivision of this state,
another state, or the United States or of tribal law, whether or not a new criminal
offense is charged.
(iii) The consumption of alcohol by a probationer who is on probation for a
felony violation of section 625 of the Michigan vehicle code, 1949 PA 300, MCL
257.625.
(iv) Absconding.
The parties do not dispute MCL 771.4b(1)’s limiting effect on a trial court’s sentencing
authority regarding technical probation violations. The essential dispute, therefore, is merely
whether the nontechnical probation violation here for the August 2021 retail fraud renders the
sentencing caps inapplicable in this case. We acknowledge that the charge against defendant for
the August 2021 retail fraud was dropped by order of nolle prosequi on April 12, 2022. 3 However,
3
We note that this evidence is not in the lower court record, and attempts to enlarge the record on
appeal are generally prohibited. See Mich AFSCME Council 25 v Woodhaven-Brownstown Sch
Dist, 293 Mich App 143, 146; 809 NW2d 444 (2011) (declining to consider evidence not before
the trial court when it decided on the motion at issue). Nevertheless, “[a] trial court may take
judicial notice of any records of the court where it sits,” and “an appellate court can properly take
judicial notice of any matter which the court of original jurisdiction may take notice.” People v
Sinclair, 387 Mich 91, 103; 194 NW2d 878 (1972). See also MRE 201(a) (“A judicially noticed
fact must be one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.”) and (e) (“Judicial notice may
be taken at any stage of the proceeding.”). While appellant counsel should avoid similar errors in
future proceedings, for purposes of this case, we take judicial notice of this court record.
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the prosecution correctly argues that, under MCL 771.4b(9)(ii), no actual criminal offense need be
charged for nontechnical violations arising out of the violation of state law. See also People v
Perry, 201 Mich App 347, 348-349, 351-353; 505 NW2d 909 (1993) (affirming revocation of
probation and imprisonment for violating state law despite the underlying charge being dismissed
before the probation violation hearing).
Here, notwithstanding the dropped charge, the trial court found sufficient evidence at the
probation violation hearing to find that defendant violated state law regarding the August 2021
retail fraud, a determination defendant does not contest on appeal. Accordingly, the jail caps in
MCL 771.4b(1) do not apply to such nontechnical probation violations and the trial court was
within its authority to sentence defendant on the underlying offenses; the three probation violations
at issue.
B. MCL 769.5(6)
Defendant argues that he is entitled to resentencing because the trial court improperly
justified its sentence based on his failure to pay restitution without conducting an ability-to-pay
analysis as required by MCL 769.5(6).
According to defendant, MCL 769.5(6) requires courts to conduct an ability-to-pay
analysis before imposing an additional sentence based on a defendant’s failure to pay restitution
or other financial obligations. Defendant faults the trial court for never doing so here before
imposing its sentence. Further, defendant’s asserts that his presentence investigation report (PSIR)
confirms he did not have an ability to pay restitution because of a serious 2019 automobile accident
and his struggles with drug addiction.
Contrary to defendant’s argument, MCL 769.5(6) is inapplicable to this case. MCL
769.5(6) provides:
If the finding of contempt of court under subsection (5) is for nonpayment of fines,
costs, or other legal financial obligations, the court must find on the record that the
person is able to comply with the payments without manifest hardship, and that the
person has not made a good-faith effort to do so, before imposing an additional
sentence.
Under MCL 769.5(5),
If the court finds that the sentenced person has not complied with his or her
sentence, including a nonjail or nonprobation sentence, the court may issue an order
for the person to show cause why he or she should not be held in contempt of court
for not complying with the sentence. If the court finds the person in contempt, it
may impose an additional sentence, including jail or probation if appropriate.
Here, defendant fails to recognize that the trial court never found defendant in contempt
for failing to pay restitution as required by his original sentence. Hence, the statutory subsections
relied on by defendant do not apply. Rather, the record makes clear that the trial court made a
passing reference to defendant’s failure to pay restitution as another relevant factor indicative that
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defendant was not succeeding on probation. Additionally, our Supreme Court has concluded that
an ability-to-pay assessment is only necessary before imposing fees or costs “when . . . the
defendant contests his [or her] ability to pay.” People v Jackson, 483 Mich 271, 298; 769 NW2d
630 (2009). Defendant never contested his ability to pay restitution at any point during this case,
hence, under these circumstances, the trial court did not err by referring to defendant’s failure to
pay restitution without conducting any analysis of his ability to pay. Contrary to defendant’s
assertions on appeal, there was no error, hence, the trial court did not commit plain error affecting
defendant’s substantial rights. Defendant is not entitled to relief on this issue.
C. PROPORTIONALITY
Defendant argues that he is entitled to resentencing because his departure sentence was
unreasonable and disproportionate. According to defendant, the trial court failed to consider the
low severity of defendant’s offense and the individual facts and circumstances of his case, and
never explained why its sentence was more proportionate to the offense and offender than another
sentence would have been. According to defendant, the trial court failed to justify the particular
extent of its departure, and its purported justifications were already accounted for by the guidelines
range.
Defendant argues further the trial court improperly based its departure sentence on
defendant’s failure to pay restitution, as already addressed, and his positive drug test, which was a
technical violation subject to MCL 771.4b(1)’s jail caps. According to defendant, the trial court
also partially relied on defendant’s early release from jail because of a medical condition, which
was completely irrelevant to defendant’s sentencing. And while the court also relied on
defendant’s refusal to work with Michigan Rep staff or enter mental health court, defendant
contends that no such action was ever court-ordered, and that he maintained at the probation
violation sentencing that he had made voluntary, good-faith efforts to address his substance abuse
and mental health.
In Lockridge, 498 Mich 358, our Supreme Court held that Michigan’s sentencing
guidelines are merely advisory in a trial court’s sentencing determination. However, “[the
guidelines] remain a highly relevant consideration in a trial court’s exercise of sentencing
discretion.” Id. at 391. Accordingly, while a trial court no longer needs to give a “substantial and
compelling reason” to depart from the guidelines range, it must “continue to consult the applicable
guidelines range and take it into account when imposing a sentence.” Id. at 391-392. Trial courts
must also justify the sentence given to facilitate appellate review. Id. at 392.
The principle of proportionality “requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Steanhouse, 500 Mich at 460. This requires the trial court to “take into account the nature of the
offense and the background of the offender” to ensure “that the sentence[] imposed . . . [is]
proportionate to the seriousness of the matter[].” Milbourn, 435 Mich at 651. The trial 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, quoting Smith, 482 Mich
at 311. In determining whether an above-guidelines sentence is more proportionate than a sentence
within the guidelines range, courts consider “(1) whether the guidelines accurately reflect the
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seriousness of the crime, (2) factors not considered by the guidelines, and (3) factors considered
by the guidelines but given inadequate weight.” Dixon-Bey, 321 Mich App at 525 (citations
omitted). Relevant factors not considered by the guidelines include, among other things, “the
relationship between the victim and the aggressor, the defendant’s misconduct while in custody,
the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation.” People
v Lampe, 327 Mich App 104, 126; 933 NW2d 314 (2019).
Further, when a trial court revokes a defendant’s probation, the trial court is permitted “to
sentence the defendant as if probation had never been granted.” People v Henrick, 472 Mich 555,
561-562; 697 NW2d 511 (2005). The sentencing guidelines apply to a sentence imposed after a
probation violation, and the trial court may consider the acts giving rise to the probation violation
in determining whether to depart from the guidelines. Id. at 557, 560. Specifically, “[t]he act
giving rise to [a] probation violation may provide a substantial and compelling reason to depart
from the legislative sentencing guidelines.” Id. at 160.
Here, the trial court explicitly referenced the minimum sentencing guidelines range for
defendant’s underlying offense, then reasoned that its above-guidelines sentence was justified due
to defendant’s continued criminality and inability or unwillingness to follow the terms and
conditions of probation. However, we cannot find within the record where the trial court
sufficiently explained its justification in the record, particularly regarding the extent of its
departure. While the court did reference the recommended minimum sentencing guidelines range,
it never stated “why the sentence imposed [wa]s more proportionate to the offense and the offender
than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525. The trial court
here expressed its justifications and imposed the above-guidelines sentence without a proper
explanation of why the recommended guidelines range would be insufficient, or why the particular
departure was warranted instead.
Expression on the record of the trial court’s rationale is necessary both to ensure the
reasonableness of defendant’s sentence, i.e., the proportionality in relation to the offenses and the
offender, and to allow for meaningful appellate review by this Court. And because this Court
“cannot substitute its own judgment about why the departure was justified[, a] sentence cannot be
upheld when the connection between the reasons given for departure and the extent of the departure
is unclear.” Smith, 482 Mich at 304. Lastly, our Supreme Court has directed that, when “[not all]
reasons articulated by the trial court for departing from the sentencing guidelines w[ere] valid, . .
. it [is] unclear whether it would have departed solely [based on the valid reason(s)], and . . . its
reasoning for the extent of departure was difficult to ascertain,” this Court should “remand for the
trial court to either resentence or to further articulate its reasons for departure.” Steanhouse, 504
Mich at 969 (emphasis added).
For these reasons, we remand this case for the trial court to further articulate its reasoning
for its upward departure sentence or to resentence defendant. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ Colleen A. O’Brien
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