                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 14, 2018
               Plaintiff-Appellee,

v                                                                  No. 329174
                                                                   Shiawassee Circuit Court
STEVEN EDWARD SHERBURNE,                                           LC Nos. 14-006468-FC and 14-
                                                                           006469-FH
               Defendant-Appellant.


Before: MURPHY, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

       Defendant pleaded nolo contendere to sexually abusing two very young girls in two
separate lower court files. In one case, the trial court sentenced defendant within his calculated
minimum sentencing guidelines. In the other, the court departed significantly, sentencing
defendant to 41 to 63 years’ imprisonment. Defendant now challenges only his upwardly
departing sentence in Lower Court No. 14-006468-FC.

        The trial court stated several, well-founded reasons to support departing upward from the
sentencing guidelines. However, the court did not adequately connect those reasons to the
particular 22-year departure made in this case. We vacate defendant’s sentence in Lower Court
No. 14-006468-FC and remand for the trial court to fill that gap in the record. As defendant has
not challenged his sentence in Lower Court No. 14-006469-FH, we affirm that sentence.

                                       I. BACKGROUND

        In 2010, defendant sexually abused five-year-old DS while she was placed in his care for
babysitting. Defendant has admitted to touching DS in the vaginal area over her underwear.
Although DS’s mother contemporaneously reported the abuse and an investigation was
conducted, the prosecutor did not pursue charges at that time. In 2014, defendant sexually
abused four-year-old JA, the daughter of his live-in girlfriend. On one occasion, defendant
sexually touched JA. On a second, defendant penetrated JA’s rectum with his penis and forced
her to perform fellatio upon him. The prosecutor then charged defendant for offenses against
both victims. As to DS, the prosecutor charged defendant with one count of criminal sexual
conduct (CSC), second degree in violation of MCL 750.520c(2)(b) (sexual contact with a victim
less than 13 years of age by a defendant over 17 years of age). As to JA, the prosecutor charged
him with one count of CSC-2 and two counts of CSC-1 in violation of MCL 750.520b(2)(b)
(sexual penetration of a victim under 13 by a defendant over 17).
                                               -1-
        Ultimately, defendant pleaded nolo contendere to one count of CSC-2 against each child.
Defendant’s sentencing guidelines were calculated separately for each offense. Defendant’s
minimum sentencing guidelines range for his assault of DS was calculated at 50 to 200 months.
The trial court sentenced defendant within those guidelines and he does not appeal his sentence
in that matter. Defendant’s minimum sentencing guidelines range for his assault against JA was
higher given the severity of the offense: 58 to 228 months. The court departed upward from that
range, sentencing defendant to 492 to 756 months (41 to 63 years), a 22-year departure, because
the sentencing range was “not good enough” and was “not justice today.”

        We note that the court sentenced defendant before People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015), was decided. The court therefore sought substantial and compelling,
objective and verifiable reasons supporting its decision. The court noted that defendant had been
convicted of attempted CSC-3 in 1997, and spent a year in jail. Along with nonsexual crimes,
defendant had later been twice convicted of failure to comply with the sex offender registry,
leading to 145 days of jail time. Shortly after his first compliance failure, defendant sexually
abused DS. The second conviction was after. At that time, the court opined, “I think the signs
were apparent as to what you are, Mr. Sherburne.”

        The court further emphasized the young age of defendant’s victims and the toll his crimes
took on their wellbeing. DS had attempted suicide, her grades suffered to the point she had to be
held back a year, and she took sleeping pills. JA was only “four years old when she was
savaged,” the court continued. The court did not “know what other word to use, and [it] tried to
think of a word that could describe this matter, and the only word that [came] to [the court’s]
mind is savagely.” “The effects of these offenses on these little girls” could not “be adequately
reflected in any minimum [s]entence guideline.”

       The court further cited defendant’s failure to rehabilitate:

               [Y]ou have failed miserably at rehabilitation again and again. The
       [s]entence guidelines, they don’t reflect how badly you’ve failed. And these
       aren’t subjective statements by the Court, Mr. Sherburne, it’s right here in front of
       us. What I’m placing on the record today are verifiable, mostly by you.

                                              * * *

              Mr. Sherburne, you’ve had counseling, you were given drugs to help you,
       you were even sent, you were even sent to the Department of Community Mental
       Health for a forensic evaluation to determine whether or not you understood what
       you’re doing, and whether or not you were competent to stand trial.

“[P]sychological testing suggest[ed],” however, that defendant “may have been exaggerating his
symptoms. Based on all these factors, the court found, “What is proportioned, in this Court’s
mind, is a significant upward departure that [the court] believe[d] would adequately protect
society.”

       Defendant filed a delayed application for leave to appeal, which this Court denied.
Defendant sought leave in the Supreme Court. In lieu of granting leave to appeal, the Supreme
Court remanded to us to consider the proportionality of defendant’s upwardly departing sentence
                                                -2-
in accordance with People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017) (Steanhouse II).
People v Sherburne, 501 Mich 904; 902 NW2d 601 (2017).

                                    II. LEGAL PRINCIPLES

        We review departure sentences for reasonableness, Lockridge, 498 Mich at 392, and
review a lower court’s determination that a particular sentence is reasonable for an abuse of
discretion. Steanhouse II, 500 Mich at 471. In determining whether a trial court abused its
discretion by unreasonably departing from the sentencing guidelines, we consider whether the
court conformed to the principle of proportionality set forth in People v Milbourn, 435 Mich 630;
461 NW2d 1 (1990). Steanhouse II, 500 Mich at 476-477. In this regard, we must consider
whether the trial court acted within its discretion by imposing a sentence that is proportionate to
the seriousness of the particular offense and the character of the particular offender. People v
Dixon-Bey, 321 Mich App 490, 521; 909 NW2d 458 (2017), oral argument gtd on the application
501 Mich ___ (2018).

        In Milbourn, 435 Mich at 635, the Supreme Court held that the sentencing guidelines
were designed with the “principle of proportionality” in mind, to impose punishment “relative [to
the] seriousness and severity of individual criminal offenses.” The Legislature already took into
account the seriousness of the various criminal offenses and the danger imposed by recidivism in
creating the guidelines and “intended more serious commissions of a given crime by persons
with a history of criminal behavior to receive harsher sentences than relatively less serious
breaches of the same penal statute by first-time offenders.” Id. Judges departing from the
guidelines must exercise their discretion “according to the same principle of proportionality,” id.
at 635-636, and impose a sentence that is proportionate to the seriousness of the particular
offense and offender. Steanhouse II, 500 Mich at 474. To this end, trial courts may depart
“when, in their judgment, the recommended range under the guidelines is disproportionate, in
either direction, to the seriousness of the crime.” Milbourn, 435 Mich at 657. The guidelines are
“a useful tool,” but departure sentences are “appropriate where the guidelines do not adequately
account for important factors legitimately considered at sentencing.” Id. at 657-658.

       In application, the Milbourn Court found that “departures from the guidelines,
unsupported by reasons not adequately reflected in the guidelines variables, should . . . alert the
appellate court to the possibility of a misclassification of the seriousness of a given crime by a
given offender and a misuse of the . . . sentencing scheme.” Id. at 659. The Court explained:

               Where there is a departure from the sentencing guidelines, an appellate
       court’s first inquiry should be whether the case involves circumstances that are
       not adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. 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 659-660
       (emphasis added).]


                                                -3-
        In People v Smith, 482 Mich 292; 754 NW2d 284 (2008), the Supreme Court described a
practical application of the principle of proportionality. The Smith Court required a trial court to
rationalize and articulate why the specific departure sentence imposed was proportionate to the
offense and the offender. Id. The Court explained that a departure cannot be based “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 investigation report [PSIR], that the characteristic has been given
inadequate or disproportionate weight.” Id. at 300, quoting MCL 769.34(3)(b).

       Although dealing with statutory language in MCL 769.34 that is no longer applicable due
to Lockridge, 498 Mich at 391 (regarding substitution of the words “may” for “shall”), the Smith
Court’s methodology to effectuate the principle of proportionality remains relevant. Addressing
appellate review of departure sentences, the Smith Court stated:

                 Appellate courts are obliged to review the trial court’s determination that a
        . . . reason exists for departure. Accordingly, the trial court’s justification “must
        be sufficient to allow for effective appellate review.” In [People v Babcock, 469
        Mich 247, 258-259; 666 NW2d 231 (2003)], this Court explained that an
        appellate court cannot conclude that a particular . . . reason for departure existed
        when the trial court failed to articulate that reason. Similarly, if 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. A sentence cannot be
        upheld when the connection between the reasons given for departure and the
        extent of the departure is unclear. When departing, the trial court must explain
        why the sentence imposed is more proportionate than a sentence within the
        guidelines recommendation would have been. [Smith, 482 Mich at 304 (citations
        omitted).]

         Also identified as assisting appellate review of the proportionality of a departure sentence
is “when a court explains the similarity between the facts justifying the departure and the facts
describing a crime meriting the same sentence under the guidelines. A comparison of a
defendant’s characteristics and those of a hypothetical defendant whose recommended sentence
is comparable to the departure sentence is a valuable exercise.” Id. at 310. In this vein, a
“potential means of offering . . . a justification [for a departure] is to place the specific facts of a
defendant’s crimes in the sentencing grid.” Id. at 306. The Court reasoned that “reference to the
grid can be helpful, because it provides objective factual guideposts that can assist sentencing
courts to ensure that the offenders with similar offense and offender characteristics receive
substantially similar sentences,” id. at 309 (quotation marks and citation omitted), and thus
“minimize idiosyncrasies” in sentencing. Id. at 311. However, courts are not required to
“sentence defendants with mathematical certainty” and “precise words [are not] necessary . . . to
justify a particular departure.” Id.

       A common thread in the line of sentencing cases both before and after Lockridge is that a
court may not depart from the sentencing guidelines based on factors already taken into account
under the guidelines except under specific circumstances. In determining whether the chosen
departure sentence is more proportionate than a guidelines sentence, relevant considerations
include: “(1) whether the guidelines accurately reflect the seriousness of the crime, . . . (2)

                                                  -4-
factors not considered by the guidelines, . . . and (3) factors considered by the guidelines but
given inadequate weight.” Dixon-Bey, 321 Mich App at 525 (citations omitted).

                                         III. ANALYSIS

       Here, the trial court provided more than adequate reasons to depart upward from the
sentencing guidelines. In determining whether to impose a departure sentence, factors that may
be considered include, but are not limited to:

       (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. [People v Steanhouse, 313 Mich App 1, 46; 880
       NW2d 297 (2015) (Steanhouse I), aff’d in part and rev’d in part on other grounds
       500 Mich 453 (2017) (citations omitted).]

Factual distinctions can justify upward departures when the trial court feels that the guidelines do
not adequately account for the offenses then before it. People v Walden, 319 Mich App 344,
353-354; 901 NW2d 142 (2017).

        The court here relied in part on the seriousness of defendant’s particular offenses. JA’s
mother stated on the record that defendant had caused “irreparable damage” to her daughter.
DS’s mother described that her daughter, who was then only 11, had attempted suicide more than
once, still experienced difficulty sleeping, and had suffered academically. The trial court stated,
“The effects of these offenses on these little girls cannot be adequately reflected in any minimum
[s]entence guideline.”

        Defendant argues that any harm done to JA by virtue of sexual penetration was already
considered in the assessment of 50 points for offense variable (OV) 11. Defendant also raises a
related, and unpreserved, argument that the court erred in scoring 50 points for multiple
penetrations under OV 11 when the sentencing offense—CSC-II—was not based on a conviction
involving sexual penetration. Generally, the scoring of the offense variables is offense specific.
People v McGraw, 484 Mich 120, 126-127; 771 NW2d 655 (2009). However, MCL
777.41(1)(a) provides that a court must assess 50 points for OV 11 when two or more criminal
sexual penetrations occurred. Pursuant to MCL 777.41(2)(a), the court must consider all sexual
penetrations of the victim by the offender arising out of the sentencing offense. People v
Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). A sexual penetration arises out of the
sentencing offense when it results from the sentencing offense and has a causal relationship that
is more than incidental. Id. at 132.

         In this case, defendant admitted that he sexually touched 4-year-old JA on two occasions,
and that on the latter date, he put his penis into JA’s rectum and her mouth. Vaginal penetration,
fellatio, and cunnilingus are separate penetrations for the purpose of scoring OV 11. Id. While
defendant’s intentional touching was sufficient to establish the sentencing offense of CSC-2, the
subsequent penetrations arose from the touching and were causally connected. Therefore, the
court did not err in the assessment of 50 points for OV 11. Moreover, the trial court did not limit

                                                -5-
its finding to the harm caused by these two specific sexual penetrations. The trial court noted
that defendant’s victims “were little, little girls” and that JA was “savagely” assaulted. OV 11
does not take into account the age of the victim or the brutality of the penetration, and therefore
did not adequately account for the circumstances of this case.

        As an additional basis for its departure, the trial court noted that defendant clearly had not
learned from his prior incarceration and attempts at rehabilitation, citing defendant’s significant
history of criminal convictions. Defendant had a history of sexual assaults and attempts that
resulted in prior incarceration and counseling. The PSIR indicated that in 1988 defendant raped
his sister and was removed from his home. Defendant had acted out sexually and violently as a
youth. He participated in inpatient treatment at three different facilities. Despite this treatment,
defendant was convicted of attempted CSC-III in 1997. During his police interview on April 13,
2014, defendant indicated that he had sexually assaulted other victims, crimes that have to be
investigated. Courts may consider uncharged offenses and pending charges in sentencing.
People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994). The trial
court properly considered defendant’s lengthy history of sexual misconduct and his failure to
rehabilitate.

       The trial court also expressed a need to adequately protect society. The need to protect
other children is a factor not adequately considered by the guidelines. People v Armstrong, 247
Mich App 423, 425; 636 NW2d 785 (2001). Defendant’s pattern of sexual assaults and
admissions that he had sexually assaulted other victims support the trial court’s conclusion that
defendant posed a significant threat to young children. Given defendant’s failed rehabilitation,
the court was justified in its concerns for the safety of other children and society.

        Defendant contends, however, that the trial court failed to adequately consider mitigating
circumstances. Specifically, defendant notes that he was the victim of sexual and physical abuse
as a child, is emotionally impaired and schizophrenic, and suffers from leukemia which was then
in remission. The court did consider these issues as they were included in defendant’s PSIR.
Moreover, the trial court specifically noted that defendant underwent psychological testing to
determine whether he was competent to stand trial and the evaluator believed he “may have been
exaggerating his symptoms.” The trial court’s thorough review of the PSIR supports it did
consider the subject information.

      Considering the record as a whole, the trial court more than adequately supported that an
upwardly departing sentence was warranted in this case.

        Yet, defendant correctly contends that the trial court did not support the extent of the
departure made in this case. The top end of defendant’s recommended sentencing guidelines
range was 19 years. The court imposed a minimum sentence of 41 years, more than double the
top of the range. It is quite possible that this lengthy sentence was warranted. However, the
court made no discussion of how this particular 41-year sentence was calculated or how it tied to
the factors supporting departure.

        In Lower Court No. 14-006468-FC, we therefore vacate defendant’s sentence and remand
to the trial court to articulate its reasons for selecting the particular upwardly departing sentence.
On remand, the court may impose an identical sentence, if supported, or may choose some other

                                                 -6-
minimum sentence. And we affirm defendant’s unchallenged sentence in Lower Court No. 14-
006469-FH. We do not retain jurisdiction.



                                                      /s/ William B. Murphy
                                                      /s/ Elizabeth L. Gleicher
                                                      /s/ Anica Letica




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