                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      July 21, 2016
               Plaintiff-Appellee,

v                                                                     No. 327198
                                                                      Van Buren Circuit Court
JARRUD RAYMOND PAYNE,                                                 LC No. 12-018294-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

      Defendant appeals as of right his sentence of 30 to 50 years’ imprisonment that was
imposed after defendant was resentenced for his conviction of first-degree criminal sexual
conduct (CSC I), MCL 750.520b(1)(a) (penetration involving a person under 13). We affirm.

         When the trial court initially sentenced defendant after his conviction of CSC I, it
departed upward from the mandatory, statutory minimum sentence of 25 years—see MCL
750.520b(2)(b)—without articulating any substantial and compelling reasons for doing so. On
appeal, this Court remanded the case to the trial court for resentencing but did not retain
jurisdiction. People v Payne, 304 Mich App 667, 673, 676; 850 NW2d 601 (2014). This Court
instructed the trial court to “either (1) impose a flat 25-year minimum, or (2) if it again decides to
upwardly depart from the 25-year mandatory minimum, articulate substantial and compelling
reasons sufficient to justify its departure and the extent thereof.” Id. On remand, the trial court
again upwardly departed and sentenced defendant to 30 to 50 years’ imprisonment. In doing so,
it articulated reasons that it believed were substantial and compelling. Defendant then filed the
instant appeal.

       Defendant argues that the trial court’s reasons for upwardly departing were not
substantial and compelling reasons.

       Defendant’s guidelines range was 81 to 135 months, but MCL 750.520b(2)(b) mandates a
minimum sentence of 25 years (300 months) for the CSC I offense at issue. In People v
Wilcox, 486 Mich 60, 73; 781 NW2d 784 (2010), the Michigan Supreme Court explained that a
sentencing departure occurs when a court imposes a sentence that exceeds “both the applicable
guidelines minimum sentence range and the . . . mandatory minimum.” Defendant thus received
a “departure” sentence.

                                                 -1-
        The Supreme Court in Lockridge, 498 Mich 358, 391; 870 NW2d 502 (2015), struck
down “the requirement of a ‘substantial and compelling reason’ to depart from the guidelines
range in MCL 769.34(3).” The Court stated that “[w]hen a defendant’s sentence is calculated
using a guidelines minimum sentence range in which [offense variables] have been scored on the
basis of facts not admitted by the defendant or found beyond a reasonable doubt by the jury, the
sentencing court may exercise its discretion to depart from that guidelines range without
articulating substantial and compelling reasons for doing so.” Lockridge, 498 Mich at 391-392.
The Court further stated that “[a] sentence that departs from the applicable guidelines range will
be reviewed by an appellate court for reasonableness.” Id. The present case, fundamentally,
involved a departure from the 25-year minimum sentence required by statute as opposed to a
departure from the guidelines range. However, we see no reason for treating this type of
departure differently from the type of departure discussed in Lockridge, because both involve
subjecting the defendant to a longer term of imprisonment than he or she would otherwise
receive.

       We nevertheless find no reason for a remand under the facts of the present case. The
“reasonableness” of a sentence is determined by applying the principle of proportionality as
delineated in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and its progeny. People v
Steanhouse, 313 Mich App 1, 48; ___ NW2d ___(2015), lv granted 499 Mich 934 (2016). The
Steanhouse Court stated that because the trial court in that case “was unaware of, and not
expressly bound by, a reasonableness standard rooted in the Milbourn principle of
proportionality at the time of sentencing,” it would remand the case to the trial court for a
Crosby1 sentencing procedure as outlined in Lockridge. Id.

        While the trial court in the present case may not have been expressly bound by a
reasonableness standard rooted in Milbourn at the time of sentencing, its statements at sentencing
clearly and unequivocally encompassed this standard. The court noted the very young age of the
victim and the trauma imposed, the inadequacy of the guidelines, the pattern of behavior
exhibited by defendant (including while he was in jail), and defendant’s inability to conform his
behavior to societal requirements. The court, for all intents and purposes, took into account the
nature of the offense, the background of the offender, the potential for rehabilitation, and
defendant’s misconduct while in custody. See Steanhouse, 313 Mich App at 45-46. We further
note that the court, in imposing sentence, was imposing this same 30- to 50-year sentence for the
second time. We conclude that remanding under the circumstances would be nothing but a waste
of judicial resources. While it did not use the precise words “principle of proportionality” or
“Milbourn,” the court conformed with the law, and the sentence (involving a departure of five
years from the statutory minimum) for the rape of a five-year-old child was reasonable.




1
    See United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                               -2-
Affirmed.



                  /s/ Christopher M. Murray
                  /s/ David H. Sawyer
                  /s/ Patrick M. Meter




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