                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 1, 2018
              Plaintiff-Appellee,

v                                                                  No. 325192
                                                                   Ionia Circuit Court
KYLE BRANDON RICHARDS,                                             LC No. 2014-015993-FH

              Defendant-Appellant.


                                        ON REMAND

Before: O’BRIEN, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

       This case returns to this Court on remand from our Supreme Court. On remand, we have
been directed only to consider whether defendant’s sentence violated the principle of
proportionality standard set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
For the reasons set forth in this opinion, we vacate defendant’s sentence and remand for
resentencing.

                                    I. BACKGROUND FACTS

       Defendant was found guilty by a jury of assaulting a prison employee, MCL 750.197c.
Although we provided a detailed recitation of the facts of this case in our previous opinion, the
incident that led to defendant’s conviction can be succinctly summarized as follows: defendant
spat on a corrections officer as defendant was being transported to the segregation unit at
Bellamy Creek Correctional Facility. People v Richards, 315 Mich App 564, 568-569; 891
NW2d 911 (2016), rev’d in part ___ Mich ___; 903 NW2d 555 (2017).

       Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 50
months to 40 years’ imprisonment. At the time of defendant’s initial sentencing proceedings, his
sentencing guidelines range had been determined to be 14 to 58 months and his minimum
sentence of 50 months fell within that guidelines range. However, defendant subsequently filed
a motion for resentencing, arguing that offense variable (OV) 19, MCL 777.49, was erroneously
scored. A hearing was held on the motion, at which the prosecutor agreed with the scoring
change. As a result of the scoring change, defendant’s guidelines range was determined to be 12
to 48 months, which meant that his minimum sentence was outside the applicable guidelines
range.
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        Defense counsel requested that defendant be resentenced within the new guidelines
range. The prosecutor argued that under People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015), “it would be reasonable for the Court to continue the sentence of 50 months in light of
the defendant’s enormous assaultive history.” The prosecutor explained:

       He’s 23 years old. He has had a tremendous amount of assaultive both crimes and
       misconducts. Even since he’s been in prison he has a total of 4 threatening
       behaviors, 1 assault and battery on staff, 2 destruction/misuse of state property, 1
       creating a disturbance. This is his 3rd conviction for assault on a prison employee.
       In 2008 he previously made threats to a sheriff’s deputy, threatening to kill the
       sheriff deputy’s family. In 2009 he even assaulted a psychologist at the Center
       for Forensic Psychiatry. In light of just the weight of his assaultive convictions
       and the major misconducts he’s had in the past, in this case the People submit it is
       reasonable to impose the 50 month sentence because of his past criminal history.

In response, defense counsel explained that the trial court had considered all of these same
factors when initially sentencing defendant to a sentence that was within the range as previously
calculated.

      The trial court denied defendant’s motion for resentencing and maintained defendant’s
minimum sentence of 50 months. The trial court explained its decision as follows:

              Well, in this matter we did have a full trial. The Court did take into
       consideration his prior assaultive record but particularly recognizing now that the
       sentencing guidelines are advisory in nature, the Court has certainly considered
       the new sentencing guidelines range, but having given this further consideration, I
       agree with the People in this matter that there really are very extenuating
       circumstances with Mr. Richards that this Court believes the original
       determination of 50 months is appropriate. But I certainly appreciate your
       argument and appreciate the manner in which you’ve presented it . . . but find that
       the 50 month sentence is appropriate and would not find a basis at this time to
       reduce that sentence.

        Defendant appealed, raising a variety of challenges, including that his sentence was
unreasonable. This Court affirmed defendant’s conviction but remanded for further proceedings
to determine whether resentencing was required. Richards, 315 Mich App at 568, 589.
Specifically, with respect to defendant’s challenge to his sentence, we concluded that it was
necessary to remand the matter because the trial court’s ruling on defendant’s resentencing
motion occurred before this Court issued its opinion in People v Steanhouse, 313 Mich App 1;
880 NW2d 297 (2015) (Steanhouse I), rev’d in part 500 Mich 453 (2017), and “[t]herefore, ‘the
trial court was unaware of, and not expressly bound by, [the] reasonableness standard rooted in
the Milbourn principle of proportionality at the time of sentencing.’ ” Richards, 315 Mich App
at 585, quoting Steanhouse I, 313 Mich App at 48 (second alteration in original).




                                               -2-
       Defendant sought leave to appeal in the Michigan Supreme Court, which entered an order
holding defendant’s application in abeyance pending its decisions in Steanhouse I and People v
Masroor, 313 Mich App 358; 880 NW2d 812 (2015), rev’d in part 500 Mich 453 (2017).1

        Our Supreme Court decided those cases in People v Steanhouse, 500 Mich 453, 459-461,
476; 902 NW2d 327 (2017) (Steanhouse II), in which, as pertinent to the instant appeal, our
Supreme Court (1) affirmed this Court’s decision in Steanhouse I to the extent that it found that
“the proper inquiry when reviewing a sentence for reasonableness is whether the trial court
abused its discretion by violating the ‘principle of proportionality’ set forth in People v
Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which requires sentences imposed by the
trial court to be proportionate to the seriousness of the circumstances surrounding the offense and
the offender,’ ” and (2) reversing this Court’s opinion in Steanhouse I to the extent that it ordered
a Crosby2 remand instead of reviewing the upward departure sentence for reasonableness. Our
Supreme Court stated that it had “made clear in Lockridge that defendants who receive upward
departure sentences cannot show prejudice from the Sixth Amendment error,” and the Court held
that in such instances, “the proper approach is for the Court of Appeals to determine whether the
trial court abused its discretion by violating the principle of proportionality.” Steanhouse II, 500
Mich at 461.

       After the decision in Steanhouse II, on November 29, 2017, our Supreme Court reversed
“that part of the judgment of the Court of Appeals remanding this case to the trial court for
proportionality review,” and remanded the case to this Court “for plenary review of whether the
defendant’s sentence was disproportionate under the standard set forth” in Milbourn. People v
Richards, ___ Mich ___; 903 NW2d 555 (2017). The Court denied leave to appeal in all other
respects, id., leaving this Court’s affirmance of defendant’s conviction intact.

                                  II. STANDARD OF REVIEW

        “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” Lockridge, 498 Mich at 392. When reviewing a sentence
for reasonableness, we consider “whether the trial court abused its discretion by violating the
principle of proportionality” as set forth in Milbourn. Steanhouse II, 500 Mich at 459-460
(quotation marks and citation omitted). Under this standard, a sentence must “be proportionate
to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 460
(quotation marks and citation omitted). It is an abuse of discretion for a trial court to “violate[]
the principle of proportionality test ‘by failing to provide adequate reasons for the extent of the
departure sentence imposed,’ ” and such cases require remand to the trial court for resentencing.
People v Steanhouse (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No.
318329); slip op at 2 (Steanhouse III), quoting Steanhouse II, 500 Mich at 476.

                                         III. ANALYSIS


1
    People v Richards, 889 NW2d 258 (Mich, 2017).
2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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        In Steanhouse II, the Michigan Supreme Court held that the Milbourn principle-of-
proportionality test was the proper standard to apply when reviewing a defendant’s departure
sentence for reasonableness. Steanhouse II, 500 Mich at 471. In applying the principle of
proportionality, “ ‘the 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 Milbourn, 435 Mich at 661. The sentencing guidelines are “advisory in all
applications.” Steanhouse II, 500 Mich at 466. However, “ ‘[s]entencing courts must . . .
continue to consult the applicable guidelines range and take it into account when imposing a
sentence . . . [and] justify the sentence imposed in order to facilitate appellate review.’ ”
Steanhouse II, 500 Mich at 470, quoting Lockridge, 498 Mich at 392 (ellipses and second
alteration in original).

        Under the Milbourn standard, “the sentencing court must impose a sentence that takes
‘into account the nature of the offense and the background of the offender.’ ” Steanhouse III,
___ Mich App at ___; slip op at 2, quoting Milbourn, 435 Mich at 651. A court may consider
factors that include, but are not limited to, the following:

               (1) the seriousness of the offense; (2) factors that were inadequately
       considered by the guidelines; and (3) factors not considered by the guidelines,
       such as the relationship between the victim and the aggressor, the defendant’s
       misconduct while in custody, the defendant’s expressions of remorse, and the
       defendant’s potential for rehabilitation. [Steanhouse III, ___ Mich App at ___;
       slip op at 3 (quotation marks and citation omitted).]

There is no presumption of unreasonableness for departure sentences. Steanhouse II, 500 Mich
at 474-475. Nonetheless, “[w]hen departing, the trial court must explain why the sentence
imposed is more proportionate than a sentence within the guidelines recommendation would
have been.” People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). “Even where some
departure appears to be appropriate, the extent of the departure (rather than the fact of the
departure itself) may embody a violation of the principle of proportionality.” Milbourn, 435
Mich at 660. “[I]f it is unclear why the trial court made a particular departure, an appellate court
cannot substitute its own judgment about why the departure was justified.” Smith, 482 Mich at
304.

        In this case, as an initial matter, the “seriousness of the offense” factor, Steanhouse III,
___ Mich App at ___; slip op at 3, does not appear to have been a factor considered by the trial
court in its decision to impose a departure sentence. MCL 750.197c provides that a lawfully
imprisoned individual who “through the use of violence, threats of violence or dangerous
weapons, assaults an employee of the place of confinement or other custodian knowing the
person to be an employee or custodian or breaks the place of confinement and escapes, or breaks
the place of confinement although an escape is not actually made, is guilty of a felony.” It is
clear that defendant’s act of spitting on a corrections officer, while offensive, is not the most
violent or egregious form of conduct for which a defendant could be convicted under this statute.
Regardless, the trial court did not give any indication that it somehow found the offense itself to
be so serious as to warrant consideration as a factor justifying a departure sentence.



                                                -4-
        Rather, the trial court appears to have based its decision entirely on defendant’s
background, which is certainly something that the sentencing court could consider in arriving at
a proportional sentence. Steanhouse III, ___ Mich App at ___; slip op at 2. Defendant has
several prior felony convictions, including prior convictions for assaulting a prison employee, as
well as a history of misconduct while in prison. Although a defendant’s misconduct while in
custody generally is a valid factor that may be considered in determining whether a departure
sentence is warranted, Steanhouse III, ___ Mich App at ___; slip op at 3, the trial court in this
case did not specifically indicate what aspects of defendant’s history it considered to justify its
sentence. Moreover, while defendant’s prior convictions are certainly relevant, these convictions
were already accounted for by the sentencing guidelines—a fact the trial court neglected to
acknowledge. In scoring the sentencing guidelines, prior record variable (PRV) 1 was assigned
25 points, reflecting that defendant had one prior high-severity felony conviction. MCL 777.51.
PRV 2 was assigned 30 points—the highest score possible—reflecting that defendant had four or
more prior low-severity felony convictions. MCL 777.52. PRV 5 was assigned two points,
reflecting one prior misdemeanor conviction or misdemeanor juvenile adjudication. MCL
777.55. PRV 6 was assigned 20 points, the highest score possible, because defendant was a
prisoner at the time of his offense. MCL 777.56. These scores totaled 77 points, placing
defendant in the highest PRV level possible under the applicable scoring grid, MCL 777.66.3 In
addition, because defendant was convicted as a fourth-offense habitual offender, the upper end of
the applicable guidelines range was then doubled. MCL 777.21(3)(c). Because of his criminal
background, defendant’s recommended minimum sentence range increased from the lowest
possible range for a defendant falling in defendant’s OV level, zero to six months, to a range of
12 to 48 months.

        Thus, while the trial court attempted to justify its sentence by relying on defendant’s
assaultive history, the trial court did not specify any characteristic of defendant’s background
that was inadequately considered by the guidelines or not already considered by the guidelines.
Steanhouse III, ___ Mich App at ___; slip op at 3.

         In sum, the trial court completely failed to explain how the sentencing guidelines—
which, in essence, increased the upper end of defendant’s minimum sentence range by eight
times due to his background—did not adequately account for the nature of this offense and
defendant’s background, and the trial court did not provide any reason why the departure
sentence was more proportionate than a sentence within the corrected guidelines range. Smith,
482 Mich at 304; Steanhouse III, ___ Mich App at ___; slip op at 2. Even if there are aspects of
defendant’s assaultive history that were not considered adequately by the guidelines, it is
impossible to discern what those aspects would be from the trial court’s cursory reasoning. In
other words, the trial court’s explanation during the hearing was insufficient to clearly show why
its particular departure was warranted, and we cannot substitute our own judgment on the matter.
Steanhouse II, 500 Mich at 470; Smith, 482 Mich at 304. Therefore, the trial court abused its
discretion by failing to give adequate reasons to support the extent of its departure sentence, in


3
 A violation of MCL 750.197c is classified as a Class E offense, MCL 777.16j, rendering MCL
777.66 the appropriate sentencing grid.


                                                -5-
violation of the Milbourn principle-of-proportionality test, and resentencing is required.
Steanhouse III, ___ Mich App at ___; slip op at 2. Accordingly, we vacate defendant’s sentence
and remand this matter for resentencing.

       Sentence vacated and remanded for resentencing. We do not retain jurisdiction.



                                                          /s/ Colleen A. O'Brien
                                                          /s/ Stephen L. Borrello
                                                          /s/ Michael F. Gadola




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