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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 1, 2021
Plaintiff-Appellee,
v No. 350098
Shiawassee Circuit Court
PAUL ANTHONY PLULIK, JR., LC No. 2018-003136-FH
Defendant-Appellant.
Before: JANSEN, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant entered into a plea agreement and on December 11, 2018, pleaded guilty to one
count of possession of methamphetamine, MCL 333.7403(2)(b)(i).1 On February 8, 2019,
defendant was sentenced, as a third-offense habitual offender, MCL 769.11, to 76 to 240 months’
imprisonment for possession of methamphetamine. Defendant now appeals as on leave granted,2
and argues that his departure sentence was unreasonable because the trial court’s rationale
supporting the departure was inappropriate and the extent of the departure was disproportionately
lengthy. We affirm.
I. BACKGROUND
At the February 8, 2019 sentencing hearing, the trial court noted that the guidelines
minimum sentence range for defendant’s possession of methamphetamine conviction was 19 to 57
months’ imprisonment. Defense counsel argued that “but for [defendant’s] addiction . . . [h]e
wouldn’t be doing a lot of the shenanigans that he’s done in the past[.] . . .” Defense counsel “was
hoping to make an argument to the Court . . . fashion some type of sentence that keeps [defendant]
local and he get some inpatient,” but defense counsel did not think “that’s a reality given the
1
In exchange, the prosecution dismissed defendant’s original charges of possession with intent to
deliver marijuana, MCL 333.7401(2)(d)(iii), and third-degree retail fraud, MCL 750.356d(4). The
prosecution also dismissed defendant’s fourth-offense habitual offender notice, MCL 769.12.
2
People v Plulik, 505 Mich 1038 (2020).
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guidelines as they are now.” In response, the prosecution argued that defendant “has a plethora of
manufacturing [drug]” convictions, as well as the following separate convictions: (1) resisting and
obstructing police officer; (2) assault and battery; (3) possession of a short-barreled or sawed-off
shotgun; (4) domestic violence; and (5) impaired driving or drunk driving. Notably, the
prosecution added, defendant “had since 2005 when this addiction became obvious to seek out
treatment once he was released from the Department of Corrections, and it doesn’t appear that he
bothered to seek out treatment.”
Before imposing defendant’s sentence, the trial court noted that “it would depart upward
to reach its chosen sentence even if the guidelines were scored differently[.]” In imposing
sentence, the trial court stated that defendant had a history of manufacturing methamphetamine
and running from the police. Although the trial court acknowledged that the guidelines are “a
recommendation from the Legislature,” it found that, in this case, the recommendation was
unreasonable. The trial court noted that defendant’s plea agreement with the prosecution reduced
defendant’s maximum possible prison exposure from life to only 240 months’ imprisonment. The
trial court further stated that, pursuant to People v Armstrong, 305 Mich App 230; 851 NW2d 856
(2014), “dismissed or uncharged conduct as part of a plea agreement may properly form the basis
of an upward departure.” The trial court stated:
The Court also notes that [defendant had] multiple probation and parole
violations from [his] previous convictions.
[Defendant had] been sentenced to prison three times and that’s a fact that
isn’t considered by the guidelines.
[Defendant had] successfully completed outpatient substance abuse
treatment twice, but it’s clear to the Court that those experiences had not prevented
[defendant] from reoffending, and that leads the Court to believe that [defendant is]
not a likely candidate for rehabilitation.
* * *
According to the file, [defendant had] committed [his] first felony in 2003.
[Defendant’s] criminal history continues largely uninterrupted up through the
present.
The only thing that seems to stop [defendant] from committing crimes is
incarceration, and unless [defendant is] incarcerated, [defendant is] committing
crimes.
So a major focus of this sentence will be both the protection of society and
preventing [defendant] from committing new criminal acts; in other words,
incapacitation.
* * *
According to the Court’s calculation[,] this will be [defendant’s] fourth
sentence to the Michigan Department of Corrections.
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The trial court noted defendant’s other prior sentences: (1) in 2005, defendant was
sentenced for a probation violation to 24 to 60 months’ imprisonment; (2) in 2006, defendant was
again sentenced to 40 months to 30 years’ imprisonment; and (3) in 2010, defendant was sentenced
to 51 months to 20 years’ imprisonment. The trial court also indicated that “[l]ooking at the
guidelines, the concerns expressed by the Court needed to consider the recommendation of the
Legislature as it would apply to a Habitual Offender Fourth[,]” which would result in a guideline
minimum range of 19 to 76 months’ imprisonment. However, the trial court added, defendant
would, in that scenario, still get “the benefit of [his] plea with the dismissal of charges and the
reduction in maximum sentence.” Accordingly, the trial court sentenced defendant to 76 to 240
months’ imprisonment for possession of methamphetamine.
Defendant filed a delayed application for leave to appeal, which this Court denied.3
Defendant then sought leave to appeal in the Supreme Court. In lieu of granting leave to appeal,
the Supreme Court remanded the case to this Court for consideration as on leave granted.4
II. STANDARD OF REVIEW
On appeal, defendant argues that he is entitled to resentencing because his sentence of 76
to 240 months’ imprisonment for possession of methamphetamine was an unreasonable and
disproportionate upward departure from his recommended minimum sentencing guidelines range.
We disagree.
This Court reviews the trial court’s sentencing decision for an abuse of discretion. People
v Skinner, 502 Mich 89, 128; 917 NW2d 292 (2018). The trial court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes. People v Dixon-Bey, 321
Mich App 490, 533; 909 NW2d 458 (2017), citing People v Babcock, 469 Mich 247, 269; 666
NW2d 231 (2003). A trial court abuses its discretion by imposing a departure sentence when it
violates the principle of proportionality. Dixon-Bey, 321 Mich App at 523-524.
III. ANALYSIS
While the applicable sentencing guidelines range is advisory only, “a sentencing court must
determine the applicable guidelines range and take it into account when imposing a sentence.”
People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). The sentencing guidelines are “a
highly relevant consideration in a trial court’s exercise of sentencing discretion,” and the trial court
“must consult those [g]uidelines” when making a sentencing determination. Id. at 391 (quotation
marks and citation omitted).
This Court is only required to review a sentence that departs from the range recommended
by the statutory guidelines for reasonableness. People v Anderson, 322 Mich App 622, 636; 912
NW2d 607 (2018), citing Lockridge, 498 Mich at 392. The central question in the reasonableness
inquiry is whether the trial court abused its discretion by violating the principle of proportionality
3
See People v Plulik, unpublished order of the Court of Appeals, entered September 11, 2019
(Docket No. 350098).
4
People v Plulik, 505 Mich 1038 (2020).
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set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). People v Steanhouse, 500
Mich 453, 476-477; 902 NW2d 327 (2017). 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 459-460. Factors relevant to the
proportionality of a departure sentence “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.” Dixon-Bey, 321 Mich App at 523-524. Other
factors include “the defendant’s misconduct while in custody, the defendant’s expressions of
remorse, and the defendant’s potential for rehabilitation.” Id. at 524 (quotation marks and citation
omitted) . Moreover, the trial court should identify the factors warranting a departure and justifying
the extent of the departure. Milbourn, 435 Mich at 659-660.
A trial judge may impose a sentence that departs from the guidelines when the
recommended range “is disproportionate, in either direction, to the seriousness of the crime.”
Milbourn, 435 Mich at 657. However, there are no reasonable grounds for departure where the
trial court fails to offer any explanation as to why that scoring was insufficient. Dixon-Bey, 321
Mich App at 525-526. Therefore, in addition to adhering to the principle of proportionality,
“sentencing courts must justify the sentence imposed in order to facilitate appellate review.”
Lockridge, 498 Mich at 392. This justification must include “an explanation of 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 this case, the trial court articulated several reasons for its upward departure. The trial
court found that the sentencing guidelines did not take into account that defendant had been
sentenced to prison on three different occasions. The trial court noted that defendant had multiple
probation and parole violations for his prior convictions, and although he had completed outpatient
therapy treatment twice, the trial court found that those experiences had not prevented defendant
from reoffending, deeming him an unlikely candidate for rehabilitation. The trial court thus
properly considered defendant’s lengthy history of prior sentences, violations, and his failure to
rehabilitate.
As an additional basis for its departure, the trial court noted that defendant clearly had not
learned from his prior incarceration and attempts at rehabilitation, citing defendant’s significant
history of criminal convictions. The trial court cited specific examples to support its reason: that
although defendant had completed outpatient therapy treatment twice, the trial court found that
those experiences had not prevented defendant from reoffending; that defendant had committed
his first felony in 2003, and his criminal history continued largely uninterrupted up through the
present; that the only thing that seems to stop defendant from committing crimes is incarceration;
that unless defendant is incarcerated, he is committing crimes; and adhering to the guidelines range
alone was thus clearly not sufficient to protect society and prevent future crimes. The trial court
also expressed a need to adequately protect society. Defendant’s pattern of committing new
criminal acts posed a significant threat to society. Given defendant’s failed rehabilitation, the trial
court was justified in its concerns for the safety of society. Therefore, the trial court provided
adequate reasons to depart upward from the sentencing guidelines.
The trial court also considered defendant’s dismissed or uncharged conduct as part of his
plea agreement to form the basis of defendant’s upward departure sentence. Defendant fails to
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cite any authority supporting that a trial court may not consider dismissed charges and uncharged
offenses when determining the appropriate minimum sentence imposed. This Court has held that
the “sentencing court is allowed to consider the facts underlying uncharged offenses. . . . Further,
this Court has recognized that a sentencing court may consider the nature of a plea bargain and the
charges that were dismissed in exchange for the plea for which the court is sentencing.” People v
Smith, 482 Mich 292, 299-300; 754 NW2d 284 (2008). Considering the record as a whole, the
trial court adequately supported that an upward departure sentence was warranted in this case.
The trial court also supported the extent of the departure made in this case. The top end of
defendant’s recommended sentencing guidelines range was 57 months’ imprisonment, but the trial
court imposed a sentence of 76 months’ imprisonment, which was the maximum minimum
sentence for the range if defendant were sentenced as a fourth-offense habitual offender. The trial
court mentioned and considered how it arrived at this 76-month sentence, and it reasoned that this
lengthy sentence was warranted because defendant still received the benefit of the plea by the
dismissal of his original charges of possession with intent to deliver marijuana and third-degree
retail fraud, and the dismissal of his fourth-offense habitual offender notice (which reduced
defendant’s maximum sentence exposure from life to 240 months). The trial court determined that
the longer sentence would be appropriate because it did not find that a sentence within the current
guidelines range would serve as a deterrent, especially given that defendant could not be
rehabilitated and he was a danger to society. The trial court also compared the 76-month sentence
to defendant’s prior sentences, and it desired to give him more time given his failure to rehabilitate.
While the trial court could have sentenced defendant to more than his previous high of 51
months and stayed within the guidelines range (i.e., it could have sentenced defendant to a
minimum between 52 and 57 months and that would have been higher than defendant’s prior 51-
month sentence but still fall within the guidelines range), the trial court looked at the guidelines
range as applicable if defendant were a fourth-offense habitual offender because of his prior
sentences and failure to rehabilitate. Therefore, the trial court supported that an upward departure
sentence was warranted, and it adequately connected those reasons to the extent of the departure
made in this case.
Affirmed.
/s/ Kathleen Jansen
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
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