                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 27, 2018
               Plaintiff-Appellee,

v                                                                  No. 335165
                                                                   Genesee Circuit Court
NOAH TANIAL PARKER,                                                LC No. 15-037150-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

CAVANAGH, J. (dissenting).

        I respectfully dissent from the majority’s decision to affirm defendant’s departure
sentence for voluntary manslaughter. I would vacate the sentence because the trial court relied
on an impermissible sentencing factor and imposed a sentence without adequately justifying the
extent of the departure as required under the principle of proportionality.

         First, as defendant argues, the trial court based its departure sentence on an
impermissible independent finding of guilt on the first-degree murder charge. “A trial court may
not make an independent finding of guilt and then sentence a defendant on the basis of that
finding.” People v Dixon, 217 Mich App 400, 410; 552 NW2d 663 (1996). During the
sentencing proceeding the trial court made numerous and repeated statements which indicated
that it believed defendant should have been convicted of first-degree murder and that there was
no basis for the jury verdict. The court specifically refuted the jury’s implicit finding that the
victim was armed with a machete which served as provocation for the voluntary manslaughter
conviction stating, for example: “I do not believe for a minute he had a weapon on him at the
time you shot him.” The court then relied on its independent finding as a reason for justifying
the departure sentence imposed, in effect punishing defendant in contravention to the jury’s
verdict. Therefore, I would hold that defendant is entitled to be resentenced. See People v
Fortson, 202 Mich App 13, 21; 507 NW2d 763 (1993).

        Second, the trial court imposed a departure sentence without adequately justifying the
extent of the departure as required under the principle of proportionality. While I agree with the
majority that the trial court did not violate the principle of proportionality by deciding that a
departure sentence was warranted, the court’s conclusion that defendant’s “egregious” conduct
warranted the maximum sentence possible is insufficient. See People v Lockridge, 498 Mich
358, 392; 870 NW2d 502 (2015). “A sentence cannot be upheld when the connection between

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the reasons given for departure and the extent of the departure is unclear.” People v Smith, 482
Mich 292, 304, 311; 754 NW2d 284 (2008). In other words, if the trial court fails to provide
“adequate reasons for the extent of the departure sentence imposed,” then the trial court has
abused its discretion in applying the principle of proportionality. People v Steanhouse, 500 Mich
453, 476; 902 NW2d 327 (2017). Consequently, I would vacate the departure sentence and
remand for resentencing.



                                                           /s/ Mark J. Cavanagh




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