Order Michigan Supreme Court
Lansing, Michigan
July 16, 2021 Bridget M. McCormack,
Chief Justice
162747 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 162747
COA: 349821
Otsego CC: 11-094342-FC
ANTHONY JEROME BEATY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 11, 2021
judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
VACATE the sentence of the Otsego Circuit Court, and REMAND this case to the trial
court for resentencing. The reasons given for the departure did not adequately account
for the extent of that departure (95 months beyond the top of the applicable range of 51 to
85 months). In imposing the sentence for delivery of heroin causing death, MCL
750.317a, the trial court treated defendant as if his sentencing guidelines range was
calculated from the B-V cell for Class A offenses, as is appropriate for Prior Offense
Variable (PRV) Level B defendants scoring 80 to 99 Offense Variable (OV) points.
MCL 777.62. Given that defendant actually scored 41 OV points and placed in the B-III
cell, this departure represents at least an additional 39 OV points. In finding that the
amount of drugs at issue and defendant’s delivery of heroin after the victim’s death was
effectively equivalent to a 39-point OV increase, the trial court treated these
circumstances as more serious than circumstances that would have resulted in a smaller
OV-point increase. For example, having the mental state necessary for conviction of
second-degree murder would only have resulted in a 25-point increase. See MCL
777.36(1)(b).
On resentencing, we further direct the trial court to correct defendant’s Sentencing
Information Report to reflect defendant’s status as PRV Level B and a zero-point
assessment for PRV 7. People v Francisco, 474 Mich 82, 88 (2006).
We do not retain jurisdiction.
ZAHRA, J., would deny leave to appeal.
VIVIANO, J. (concurring in part and dissenting in part).
2
I take no issue with the portion of this Court’s order directing the trial court to
correct defendant’s Sentencing Information Report, but I respectfully dissent from the
remainder of the Court’s decision to reverse the judgment of the Court of Appeals, vacate
defendant’s sentence, and remand this case for resentencing for a third time—in what will
now amount to the fourth sentencing in this case. 1 As we have stated, “the relevant
question for appellate courts reviewing a sentence for reasonableness” is “whether the
trial court abused its discretion by violating the principle of proportionality . . . .” People
v Steanhouse, 500 Mich 453, 471 (2017). “ ‘[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.’ ” Id. at 472, quoting People v Milbourn, 435 Mich
630, 661 (1990). In my opinion, the sentence imposed was proportionate in light of
defendant’s decision to continue selling heroin even after he sold heroin to the victim and
knew that her death was caused by the use of heroin. Thus, the trial court did not abuse
its discretion. See Steanhouse, 500 Mich at 471.
It is important to remember that a resentencing has impacts beyond just the
defendant, the prosecution, and the trial court. Resentencings also have significant
emotional and psychological effects on victims and their families. See Davis, Getting a
Second Chance—Again, 101 ABA J 19, 20 (Sept 2015) (noting the emotional impact a
resentencing hearing can have on victims’ families); cf. Gibbons, Victims Again—
Survivors Suffer Through Capital Appeals, 74 ABA J 64, 67 (1988) (describing the
impacts that violent crime can have on victims and their families in the context of capital
appeals). Of course, sympathy for a victim’s family would not justify upholding an
unreasonable sentence. But the majority today prolongs these proceedings once again,
impinging on the trial court’s discretion, without providing any real guidance on what it
believes would be a proportionate sentence in this case. I therefore respectfully dissent in
part.
1
Defendant was first sentenced to 240 to 600 months in prison. At his second
sentencing, he received a sentence of 210 to 600 months in prison. At his third
sentencing, his minimum sentence was reduced to 180 months, which was a departure of
95 months. Defendant appealed each sentence, and each time the Court of Appeals
denied leave, but this Court remanded for further proceedings.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 16, 2021
t0713
Clerk