            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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 25, 2019
               Plaintiff-Appellee,

v                                                                   No. 344352
                                                                    Shiawassee Circuit Court
JERALD DAN HARGROVE,                                                LC No. 2017-009816-FC

               Defendant-Appellant.


Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

PER CURIAM.

        Defendant pleaded guilty to third-degree criminal sexual conduct (CSC III), MCL
750.520d(1)(a), and accosting a minor for immoral purposes, MCL 750.145a. He was sentenced
to serve concurrent terms of 120 to 180 months for the CSC III conviction and 23 to 48 months
for the accosting a minor conviction. He now appeals by leave granted. We affirm.

                 I. FACTUAL SUMMARY AND PROCEDURAL HISTORY

       Defendant’s convictions arose from his sexual penetration of a child who was less than
14 years old. As was later revealed at the sentencing proceeding, defendant had sexually
penetrated the girl, his young sister-in-law, between 20 (his estimate) and 50 (the victim’s claim)
times.

        At the plea-taking proceeding, the prosecutor noted that defendant would be pleading to
two charges and that five other charges would be dismissed, and that the estimated guideline
range would be 41 to 75 months, whereas as charged it would have been 81 to 135 months. The
prosecutor emphasized “that the guidelines as indicated are merely estimated by us at this time.”
Defense counsel agreed that defendant was prepared to plead to the agreement as stated and that
the terms were accurate “as far as [he] understand[s] them.” Defendant concurred. Both
defendant and his counsel denied that anything else had been promised. The trial court then
questioned defendant concerning his understanding of the plea agreement, emphasized that the
guidelines were an estimate, and stated that the court would “score the accurate guidelines as we
get close to sentencing” and “they might be higher, they might be lower, or they may be exactly


                                                -1-
where your attorney and [the prosecutor] estimated them to be.” The court stated that the two
attorneys “had been doing this for [a] long time and they’re pretty good at it, but ultimately the
Court will decide what the accurate guidelines are.” The court noted that “if the guidelines are
higher as the Court scores them as we get close to sentencing, that would not be a basis for you
to withdraw your plea.” (Emphasis added.) Defendant affirmed that he understood, and that he
had discussed his situation with his attorney and had concluded that it was in his best interests to
plead guilty rather than go to trial. After confirming that defendant had gone over the Advice of
Rights form, signed it after reading it, and did not have any questions about his rights, the court
confirmed that defendant was willingly and knowingly waiving his rights. The court then
reiterated that “the Court doesn’t know what your sentence is going to be at this point.”
Defendant then pleaded guilty.

        At sentencing, some adjustments were made to prior record variables (PRVs) and offense
variables (OVs). With respect to OV 7, which addressed aggravated physical abuse, the court
noted that 50 points had to be assessed for “similarly egregious conduct designed to heighten the
victim’s fear or anxiety during the offense.” The court stated:

               Here, the victim’s mother just told us that Defendant threatened the victim
       by saying that everyone would shun her if she reported this offense, and she
       continued by saying that they did. And the Presentence Investigation Report
       [PSIR] corroborates that by the victim herself by saying, you know, the people at
       school, you know they have shunned her.

              So, the conduct by the defendant, then, was designed to heighten her fear
       and prevent her from reporting his conduct; so, the evidence preponderates
       towards a scoring of OV 7 at fifty (50) points.

The court concluded that the overall suggested guidelines range on the accosting offense was 5
to 23 months and that the revision for the CSC III offense made the range 57 to 95 months.
However, the court found the suggested guidelines range to be inadequate considering the
severity of defendant’s conduct, specifically stating that “the guidelines in this case are not
reasonable.” Accordingly, the court exceeded the guidelines range and imposed sentences of 23
to 48 months for the accosting conviction and 120 to 180 months for the CSC III conviction.

             II. DEFENDANT’S UNDERSTANDING OF THE PLEA BARGAIN

        Defendant first claims that he pleaded guilty because of a promise that he would be
sentenced within the estimated guidelines range and that because the trial court did not adhere to
this promise, he is entitled to withdraw his plea or, alternatively, to specific performance of the
sentencing agreement. This argument rests upon a faulty assumption: there is no evidence that
defendant was promised that he would be sentenced within the estimated guidelines range in
effect at the plea-taking, or within the sentencing guidelines as recalculated at sentencing.
Defendant argues that because the prosecutor and the trial court both advised him of the
estimated guidelines range at the time of the plea, he had a “reasonable expectation” that he
would be sentenced within the estimated guidelines minimum sentence range. This was not a



                                                -2-
fair assumption to draw from the statements of the prosecutor and the trial court. Defendant’s
subjective “reasonable expectation” is not the same thing as a sentence bargain.

        Defendant argues that “the trial court specifically tied the bargain to the actual guidelines
at the time of sentencing by informing [defendant] that even if the guidelines were different at
sentencing he would not have grounds to withdraw his plea. There would be no reason to make
such a statement unless the plea was specifically tied to a guidelines sentence.” This argument is
incorrect. Letting a defendant know that the guidelines might be incorrectly figured and that
they could be higher, but that if they turned out to be higher, he would not have a basis to
disavow his plea, is not equivalent to informing the defendant that his plea is tied to the
estimated guidelines—it is in fact doing exactly the opposite: it is telling the defendant that his
plea is not tied to the estimated guidelines, so if the actual guidelines turned out to be higher, he
could not withdraw his plea on the basis that he pleaded to a sentence within the estimated
guidelines. Therefore, the first premise of defendant’s claim is incorrect and moreover, there is
no indication in the record that defendant’s plea was not understanding, voluntary and knowing.
MCR 6.302(A); People v Cole, 491 Mich 325, 333; 817 NW2d 497 (2012).

        Defendant next claims that he is entitled to withdraw his plea or to specific performance
because his plea bargain was illusory. However, since there was no sentence agreement
defendant cannot be entitled to specific performance. Neither the prosecutor, defendant’s trial
counsel, the trial court, nor the plea agreement document state that part of the agreement was a
sentence within the estimated sentencing guidelines. Defendant was informed of the estimated
guidelines ranges that applied to the added third-degree CSC charge he was pleading guilty to
and of the guidelines range that was applicable to the first-degree CSC charges that were being
dismissed. This enabled him to judge the value of agreeing to plead guilty to a lesser charge.
Contrary to defendant’s claim, there is simply no evidence in the record that defendant was
promised a sentence within the estimated sentencing guidelines range. Nor has defendant
submitted an affidavit from either himself or his trial counsel asserting under oath that there was
such a sentence agreement. Therefore, the second premise of defendant’s underlying claim has
not been established. Defendant clearly was not deprived of a promised benefit and he is not
entitled to withdraw his guilty plea or to specific performance of a nonexistent sentence bargain.1

         Defendant next claims that this Court cannot find that his counsel’s failure to object to
the trial court’s imposition of a sentence in excess of the estimated guidelines range constituted a
waiver of his right to raise this issue. Defendant again assumes that there was a sentence



1
  Without citing any supporting authority, defendant also claims that he is entitled to specific
performance “because the government is now in possession of statements made by [defendant],
which would not have been available if it were not for the plea negotiations.” Presumably
defendant is referring to the statements he made at the plea-taking and at sentencing. Setting
aside the question of whether the prosecution would be entitled to use such statements at a trial,
the PSIR makes it clear that defendant had already admitted to the investigating officer that he
had sexual intercourse with the victim on at least 20 occasions. The admissions defendant made
at the plea-taking and at sentencing add little to these admissions that had already been made.


                                                -3-
agreement. Counsel’s lack of objection to the departure sentence is not a matter of waiver; it is
evidence that there was no sentence agreement in the first place.

        Finally, defendant claims that he is entitled to a sentence within the estimated or actual
guidelines range or the option to withdraw his guilty plea. But defendant has failed to establish
that there was a sentencing agreement and therefore, he has shown no plain error in failing to
honor that agreement and has likewise not established an entitlement to any relief. 2

                         III. IMPLIED SENTENCING AGREEMENT

      Defendant next asserts that he is entitled to enforcement of a plea/sentence bargain that
he admits was, at best, only “implied.” This claim is without merit.

        First, defendant claims that his counsel preserved this issue by objecting on the record at
the time of sentencing. We disagree. Defendant personally addressed the court and said nothing
at all about the sentence. Defendant’s counsel objected to the court’s scoring of OV 7, but did
not object to the court’s decision to exceed the estimated guidelines range. Therefore, this issue
is unpreserved. This Court reviews unpreserved issues for plain error. People v Shenoskey, 320
Mich App 80, 82; 903 NW2d 212 (2017). “To avoid forfeiture under the plain error rule, 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. . . .” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citations and
text omitted).

         Defendant admits that “[t]he assistant prosecutor in the instant case did not promise to
recommend a certain sentence, but he informed the trial court and [defendant] of the estimated
guidelines at the time of the plea and gave every indication that there would be no objection to a
guidelines sentence.” This Court rejects this characterization because the prosecutor made no
comment, one way or the other, concerning what sentence, if any, he would recommend. The
full plea bargain was that in exchange for defendant’s plea to one count of accosting and
soliciting a child and to the added count of CSC III, the prosecution would dismiss five of the
original six counts, which included three counts of first-degree CSC. The prosecutor noted the
estimated guidelines range, but made no statement at all regarding his position on the guidelines
or defendant’s sentence. We note that the record contains two documents related to the plea-
taking: an advice of rights form from the date of the plea-taking that does not indicate anything
at all about the proposed plea bargain, and a Plea Agreement with the same date that was signed
by defendant and stated that he would plead guilty to CSC III and accosting a child for immoral
purposes and that the prosecutor would dismiss five of the original six charges. A box before
“Sentence Agreement” on the form was not checked, indicating that neither party viewed the
plea agreement as encompassing a sentence agreement. Moreover, item number 5 on the form


2
 We review unpreserved issues for plain error. People v Anderson, 322 Mich App 622, 634; 912
NW2d 607 (2018).


                                                -4-
provides a space to indicate the estimated guidelines range but, again, it does not indicate that
there is any plea bargain for a sentence within the guidelines range. Absent an explicit sentence
bargain, the line appears to be informational only. It informed defendant of the estimated
guidelines minimum sentence range at the time of the plea and nothing more. It simply informed
defendant that his guilty plea to a lesser offense would result in exposure to a reduced guidelines
range—not that his sentence would necessarily be within that range. Defendant appears to
recognize this because he only claims that he had a “reasonable expectation” that the prosecutor
would not seek a sentence outside the estimated guidelines range.

       After the prosecutor’s description of the plea bargain, defendant’s trial counsel stated
simply, “My client is prepared to plead as [the prosecutor] just recited.” Defendant was then
asked, under oath, if he agreed with the statements of the prosecutor and trial counsel, and he
responded affirmatively. Both the prosecutor and defendant’s counsel stated that there were no
other promises that had not been placed on the record. The court cautioned defendant that the
guidelines were only estimated and that and that “if the guidelines are higher . . . that would not
be a basis for you to withdraw your plea.” The court also stated:

               And it also means that when we come back for our sentencing, . . . if you
       don’t like our sentence—you think it’s too much incarceration, or you don’t like a
       term of probation, or you don’t like [sex offender] registration, . . . that would not
       be a basis for you to withdraw your plea. Do you understand . . . ?


Defendant acknowledged that he understood. In light of this record, defendant cannot credibly
argue that he believed the prosecutor was recommending a sentence within the estimated
guidelines range and that the court was bound to give him such a sentence.

        At sentencing, the prosecutor argued that the sentencing guidelines did not adequately
account for the number of times defendant had sex with the victim and did not adequately
account for the emotional damage defendant had caused to the victim’s family. But, in the end,
the prosecutor merely concluded: “So, your Honor, please fashion a sentence that addresses all
of the goals of sentencing, and . . . that stresses to our community this is not tolerated.” Contrary
to defendant’s claim, the prosecutor did not argue that the court should exceed the sentencing
guidelines. The trial court stated that the guidelines in this case, as calculated, were not
reasonable. When the trial court decided to depart from the sentencing guidelines, neither
defendant nor his counsel interjected by claiming that there was a deal. If defendant truly
believed his plea bargain called for a sentence within the guidelines range, he presumably would
have done so.

       Defendant relies on People v Nixten, 183 Mich App 95; 454 NW2d 160 (1990), where
the defendant pleaded guilty in return “for a reduction in the charged offense and a promise that
‘the People will recommend that the minimum sentence in this case not exceed eight years.’ ” Id.
at 97. At sentencing, the prosecutor recommended a minimum sentence of seven years, 11




                                                -5-
months, and 28 days. Id. at 97-98. This Court held that this was error requiring resentencing.3
Id. at 98-99. Importantly, the present facts are distinguishable because the prosecutor did not
make a specific recommendation of any sentence, let alone one within the estimated guidelines
range. Moreover, the trial court departed from the guidelines range, so Nixten is not applicable.
Accordingly, defendant has failed to demonstrate plain error that would justify resentencing.

                                  IV. ASSESSMENT OF OV 7

        Defendant next claims that he was deprived of due process by the trial court’s
reassessment of OV 7 at 50 points. Defendant raised this claim in a timely motion to remand,
thereby preserving it for appellate review. MCL 769.34(10). “Under the sentencing guidelines,
the circuit court’s factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a question of
statutory interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013).

       MCL 777.37 provides:
               (1) Offense variable 7 is aggravated physical abuse. Score offense
       variable 7 by determining which of the following apply and by assigning the
       number of points attributable to the 1 that has the highest number of points:

               (a) A victim was treated with sadism, torture, excessive brutality, or
       similarly egregious conduct designed to substantially increase the fear and anxiety
       a victim suffered during the offense…………………………………50 points

               (b) No victim was treated with sadism, torture, excessive brutality, or
       similarly egregious conduct designed to substantially increase the fear and anxiety
       a victim suffered during the offense                                  0 points

               (2) Count each person who was placed in danger of injury or loss of life as
       a victim.




3
  This Court subsequently disagreed strongly with the rationale of the two-judge majority in
Nixten, see People v Swirles (After Remand), 218 Mich App 133, 139-141; 553 NW2d 357
(1996), but concluded that it was compelled to honor the holding because of a later panel’s
partial adoption of the Nixten holding in People v Shuler, 188 Mich App 548; 470 NW2d 492
(1991). Nevertheless, the Swirles Court factually distinguished Nixten and therefore declined to
follow it. Swirles, 218 Mich App at 140-141. This Court in Shuler agreed with the Nixten
holding, but also declined to impose resentencing because the trial court had chosen to exceed
the sentencing guidelines, and the defendant had reaffirmed his plea, so the prosecutor’s
recommendation had no effect. Shuler, 188 Mich App at 550-552.


                                               -6-
               (3) As used in this section, “sadism” means conduct that subjects a victim
       to extreme or prolonged pain or humiliation and is inflicted to produce suffering
       or for the offender’s gratification.


        The trial court’s reason for assessing OV 7 at 50 points was its conclusion that
defendant’s conduct “was designed to heighten [the victim’s] fear and prevent her from reporting
his conduct” since defendant had “threatened the victim by saying that everyone would shun her
if she reported this offense.” OV 7 was interpreted by our Supreme Court in Hardy, where our
Supreme Court explained that to assess points based on the defendant’s conduct being designed
to substantially increase the fear and anxiety a victim suffered during the offense, the defendant’s
conduct must be “intended to make a victim’s fear or anxiety greater by a considerable amount.”
Hardy, 494 Mich at 441. The Court summarized: “The relevant inquiries are (1) whether the
defendant engaged in conduct beyond the minimum required to commit the offense; and, if so,
(2) whether the conduct was intended to make a victim’s fear or anxiety greater by a
considerable amount.” Id. at 443-444. See also People v Rodriguez, ___ Mich App ___, ___;
___ NW2d ___ (2019) (Docket No. 338914); slip op at 4 (under circumstances in which the
defendant “took no other action that could rise to the level of egregious conduct similar to
sadism, torture, or excessive brutality designed to substantially increase the fear and anxiety of
[the victim],” the trial court erred in assessing 50 points for OV 7). Assuming that defendant
made some form of the alleged threats to the victim, the record does not indicate that he made
the alleged threats during the commission of the offense with the intent to substantially increase
the victim’s fear and anxiety during the offense. Accordingly, the trial court did not correctly
interpret or apply MCL 777.37 in deciding to assess 50 points for OV 7. When these points are
subtracted from the total, defendant’s total OV assessment is reduced from 115 points to 65
points, changing the suggested sentencing range. Nevertheless, defendant was not sentenced
pursuant to the sentencing guidelines; instead, the trial court departed upward. In People v
Lockridge, 498 Mich 358, 395 n 31; 870 NW2d 502 (2015), the Court stated:

       In cases such as this one that involve a minimum sentence that is an upward
       departure, a defendant necessarily cannot show plain error because the sentencing
       court has already clearly exercised its discretion to impose a harsher sentence
       than allowed by the guidelines and expressed its reasons for doing so on the
       record. It defies logic that the court in those circumstances would impose a lesser
       sentence had it been aware that the guidelines were merely advisory. Thus, we
       conclude that as a matter of law, a defendant receiving a sentence that is an
       upward departure cannot show prejudice and therefore cannot establish plain
       error.

Therefore, defendant is not entitled to a remand for resentencing.

                 V. PROPORTIONALITY OF THE DEPARTURE SENTENCE

       Finally, defendant contends that the trial court’s departure sentence was not reasonable
because it violated the principle of proportionality. This claim is without merit.



                                                -7-
        A sentence that departs from the sentencing guidelines suggested minimum sentence
range is reviewed for reasonableness pursuant to the principle of proportionality, “which requires
sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” People v Steanhouse, 500 Mich 453, 460; 902 NW2d
327 (2017), quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). In making this
reasonableness determination, the reviewing court looks at “the circumstances of [the] case, the
record, and the trial court’s statements during sentencing.” People v Walden, 319 Mich App
344, 351; 901 NW2d 142 (2017). A court abuses its discretion if it imposes a disproportionate
sentence. People v Rice, 235 Mich App 429, 445; 597 NW2d 843 (1999).

       In relevant part, MCL 769.34(3)(b) provides:

       (3) A court may depart from the appropriate sentence range established under the
       sentencing guidelines set forth in [the statute] if the court has a substantial and
       compelling reason for that departure and states on the record the reasons for
       departure. All of the following apply to a departure:

                                               * * *

       (b) The court shall not base a departure on an offense characteristic or offender
       characteristic already taken into account in determining the appropriate sentence
       range unless the court finds from the facts contained in the court record, including
       the presentence report, that the characteristic has been given inadequate or
       disproportionate weight. [Emphasis added.]


        The trial court concluded that the guidelines were assessed properly, but that it still had to
impose a sentence that was “reasonable and proportionate to the seriousness of the offense and
this offender, and the [c]ourt finds that the guidelines in this case are not reasonable.” Initially,
the court noted that because of the plea bargain, three counts of first-degree CSC, a life offense,
had been dismissed. Citing People v Armstrong, 247 Mich App 423; 636 NW2d 785 (2001), the
trial court stated that it could take into account defendant’s conduct that was dismissed as part of
a plea bargain. The Armstrong Court stated:

               Defendant has an uncontrollable sexual attraction toward little boys,
       apparently as a result of his history of sexual abuse. The trial court did not err in
       finding that this factor was not adequately considered by the guidelines. . . . The
       trial court also did not err in finding that the need to protect other children by the
       sentence imposed is another factor not adequately considered by the guidelines. . .
       . Further, the guidelines take into account psychological injury to the victim
       requiring therapy, MCL 777.34, but do not take into account the violation of the
       victim’s parents’ trust in defendant, the effect on the family occasioned by the
       victim’s loss of trust in all men, including his own father, or the effect on the
       victim and his sister from having to learn about sexual matters at such a young
       age. We also note that the prosecutor’s decision, in exchange for defendant’s
       guilty plea, to dismiss a charge of first-degree CSC, which carries a potential life
       sentence, and the fact that defendant was not charged with attempted CSC for

                                                 -8-
       trying to have the victim perform oral sex on him are additional factors that the
       court can consider when deciding whether departure is warranted. . . . Therefore,
       the trial court did not abuse its discretion in finding substantial and compelling
       reasons for departing upward from the guidelines. [Id. at 425-426 (citations
       omitted and emphasis added).]


        In contrast to Armstrong, defendant claims that dismissed charges could not be
considered, citing an unpublished case. However, unpublished opinions are not precedential
authority, MCR 7.215(C)(1), whereas Armstrong, as a published opinion, is controlling. MCR
7.215(C)(2). The trial court properly considered the fact that defendant had been subject to three
life-offense counts of first-degree CSC that were dismissed by the plea bargain. Moreover, there
was record support for those charges, including defendant’s own admission. That defendant had
sexual intercourse with a 13 to14-year-old girl, his sister-in-law, on numerous occasions, each
time constituting a first-degree CSC offense, is clearly a substantial and compelling factor that
supports a departure from a sentencing guidelines range that was calculated for a single CSC III
offense.4

        The court’s next reason for exceeding the guidelines range was the number of times
defendant had sexual intercourse with the victim. The court further noted that defendant sent
nude photographs of himself to the victim and solicited nude photographs of the victim. Citing
People v Horn, 279 Mich App 31; 755 NW2d 212 (2008), the court stated: “The [c]ourt finds
that the guidelines are inadequate in this regard as they do not account for the defendant’s actual
established pattern and practice of repeatedly victimizing the same individual.”5 This Court in
Horn found that “[a]n individual’s established pattern of predatory conduct toward a selected
victim clearly constitutes probative evidence of future behavior toward the victim.” Id. at 47.

        The court next addressed the inadequacy of OV 10 [exploitation of vulnerable victim]
regarding psychological injury to the victim. MCL 777.40. The court concluded that, based on
the victim’s impact statement and the victim’s mother’s statement at sentencing, the 10 points
assessed for OV 10 were inadequate: “ten (10) points just doesn’t give us enough weight to


4
  In arguing that the trial court could not consider the dismissal of the first-degree CSC charges,
or the multiplicity of first-degree CSC offenses established by defendant’s and the victim’s
statements to the investigating officer, defendant is arguing that defendant can only be compared
to a hypothetical defendant who committed one CSC III on a 13-year-old girl. Acceptance of
this argument would be inconsistent with the principle of proportional sentencing.
5
  Defendant states: “The trial court did not state that these variables [OV 11, OV 12, and OV 13]
were not afforded adequate weight in determining [defendant’s] applicable range.” But that is
precisely what the court stated: “The [c]ourt finds that the guidelines are inadequate” with
respect to defendant’s repeated victimization of the victim. The trial court’s failure to
specifically use the terms “OV 11, OV 12, and OV 13” when it made its pronouncement does not
overcome the fact that its statement clearly indicated its determination that those OV assessments
were inadequate to reflect defendant’s behavior.


                                                -9-
reflect the extensive psychological impact that these crimes have had on the victim—I mean, not
only to her own person, but she’s now estranged from her sister, her sister doesn’t talk to the rest
of the family, and those are all things that are not accounted for under this variable.” The court
then noted that because the conviction offense was not a homicide, it could not assess points
under OV 5 for psychological harm to the victim’s family. Defendant argues that the trial court
was precluded from considering this factor because the Legislature, by limiting OV 5 to
homicide cases, made a policy determination that the psychological harm to a victim’s family
could not be considered with regard to any other type of offense. Defendant cites no authority in
support of this claim, and it is clearly inconsistent with the whole sentencing system. Failure to
support a claim with caselaw or legal analysis results in abandonment of the claim. People v
Johnson, 315 Mich App 163, 199; 889 NW2d 513 (2016). Furthermore, where there is plainly
support for an aggravating factor that is not considered by the sentencing guidelines, it is
reasonable for the court to consider that factor in determining whether the guidelines should be
exceeded. “Relevant factors for determining whether an out-of-guidelines sentence is more
proportionate than a sentence within the guidelines range ‘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.’ ” People v Odom, ___
Mich App ___; ___ NW2d ___ (Docket No. 339027; issued March 12, 2019), p 9, quoting
People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017) (emphasis added).6

         Defendant argues that the victim’s age was accounted for in OV 10, and that a continuing
pattern of criminal behavior was considered in OV 11, OV 12, and OV 13. Defendant ignores
the trial court’s statement that these variables were inadequate to deal with the degree of criminal
conduct engaged in by defendant. Moreover, OV 10 deals with exploitation of a vulnerable
victim. MCL 777.40. Defendant was assessed 15 points for this OV, which involves predatory
conduct. MCL 777.40(1)(a). The age of the victim does not factor into the predatory conduct
factor; it instead applies to factor (b), the exploitation of the victim’s youth, which is assessed for
10 points. MCL 777.40(1)(b). Thus, the guidelines—as assessed—did not consider the victim’s
age in OV 10.

        The court was precluded from assessing points for sexual penetrations outside the
sentencing offense in OV 11. MCL 777.41(2)(a) and (b). Defendant’s contention that this was
considered for OV 11 is misplaced. Likewise, OV 12 concerns contemporaneous criminal acts,
which the statute defines as those that occur within 24 hours of the sentencing offense and which
will not result in a separate conviction. MCL 777.42(2)(a)(i) and (ii). There was no evidence of
a contemporaneous criminal offense, so defendant’s contention that this was considered for OV
12 is misplaced.

       OV 13 addresses continuing patterns of criminal behavior and contemplates consideration
of defendant’s other admitted criminal sexual penetrations of the victim. However, defendant



6
 We acknowledge that our Supreme Court has scheduled oral argument on whether to grant the
defendant’s application for leave to appeal in Dixon-Bey. People v Dixon-Bey, 501 Mich 1066;
910 NW2d 303 (2018).


                                                 -10-
was only assessed 25 points for this variable based on “[t]he offense [being] part of a pattern of
[unspecified] felonious criminal activity involving 3 or more crimes against a person.” MCL
777.43(1)(c). The only factor that would approximate defendant’s behavior is (1)(a), which
involves “3 or more sexual penetrations against a person or persons less than 13 years of age.”
MCL 777.43(1)(a). The court could not assess this factor against defendant because it was not
established that the victim was less than 13 years of age. 7 Therefore, the trial court did not abuse
its sentencing discretion by determining that OV 13 did not adequately account for defendant’s
continuing pattern of criminal behavior; he did not simply commit at least three general felonious
crimes against a person, but between 20 and 50 sexual penetrations of a 13 to 14-year-old girl.

       Defendant has failed to demonstrate that the trial court abused its sentencing discretion
by determining that the sentencing guidelines were inadequate to account for defendant’s
criminal behavior and that it was thus appropriate to depart upward from the guidelines.
However, defendant also argues that even if the trial court was justified in departing from the
guidelines, the court did not justify the degree of its departure.

        We have determined that OV 7 was improperly assessed and that the total offense
variable assessment should therefore have been 65 points rather than 115 points. The suggested
minimum sentence range for defendant’s CSC III conviction would therefore be 51 to 85
months. Thus, the maximum-minimum sentence within the guidelines would be 85 months or
one month over seven years. The court instead imposed a minimum sentence of 120 months (10
years)—approximately 3 years longer than the sentencing guidelines would suggest.

          At sentencing, after expressing its specific concerns (as detailed above), the court further
stated:

                  And the [c]ourt finds that the guidelines, you just can’t measure these
          offenses in their proper context. The [c]ourt could have scored at least ninety (90)
          points for Offense Variables, while the grids of these offenses, well, they don’t
          allow the [c]ourt to account for anything more than seventy-five (75), and because
          the guidelines do no accurately reflect the Offense Variable score, the [c]ourt
          finds that the guidelines, even with the [c]ourt’s added OV 7, is [sic] inadequate.

                                                * * *

                  And the [c]ourt wishes to focus this sentence on the protection of society
          and the deterrence of other potential sex offenders, you know, others that are
          similarly situated, that are contemplating whether they should engage in a selfish
          act, maybe they’ll think twice.




7
  Although the victim’s mother believed that defendant began having sexual relations with the
victim when she was 12 years old, the victim herself stated that the acts began when she was 13
years old.


                                                  -11-
               So before imposing the sentence the [c]ourt wants to state that it can best
       effectuate these goals by imposing the maximum sentence allowed by law under
       this plea agreement, and it would depart upward to reach its chosen sentence,
       even if the guidelines were scored differently, or if only one of the facts listed by
       the Court were present.


         Given the magnitude of defendant’s offense, the impact it had on the victim and the
victim’s family, the number of felonious criminal sexual assaults committed, and the young age
of the victim, assessing an extra three years on the minimum sentence does not strike this Court
as disproportionate. Given the nature of defendant’s criminal conduct, the trial court’s
determination that a guidelines sentence was not adequate was a reasonable determination. The
degree of departure—approximately three years beyond the maximum sentence suggested by the
guidelines—is not disproportionate.8 “[T]he key test [of proportionality] is whether the sentence
is proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.” Milbourn, 435 Mich at 661. “Rather than impermissibly
measuring proportionality by reference to deviations from the guidelines, our 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 474, quoting Milbourn, 435 Mich at 636. Contrary to these admonitions from
Steanhouse and Milbourn, defendant’s argument seeks to make departure from the sentencing
guidelines the sole determinant of whether defendant’s sentence is disproportionate. However,
the trial court’s statements make it clear that it was the seriousness of defendant’s conduct—not
the guidelines’ suggested minimum sentence range—that was the deciding factor behind its
sentencing decision. And given the seriousness of defendant’s conduct, the record amply
supports the trial court’s exercise of sentencing discretion.




8
 This Court would compare its decision in People v Rosa, 322 Mich App 726, 748-749; 913
NW2d 392 (2018), where this Court concluded:
               Considering the record and the trial court’s statements in support of the
       sentence, the trial court did not abuse its discretion in departing from the
       guidelines when sentencing defendant. Defendant’s long history of abusing KR,
       the presence of a child during the assault, and the damage done to a family of four
       children were not fully accounted for by the guidelines. We also conclude that
       the extent of the departure was not disproportionate. The departure was 19
       months from a guidelines maximum of 281 months, a proportional increase given
       the nonguidelines considerations and which, in percentage terms, was an increase
       of approximately 7%. As a result, the sentencing departure was “proportionate to
       the seriousness of the circumstances surrounding the offense and the offender.”
       Milbourn, 435 Mich at 636.



                                               -12-
Affirmed.



                   /s/ Colleen A. O’Brien
                   /s/ Karen M. Fort Hood
                   /s/ Thomas C. Cameron




            -13-
