                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 12, 2018
               Plaintiff-Appellee,

v                                                                    No. 337481
                                                                     Oakland Circuit Court
KATHRYNN ELIZABETH BRYNN,                                            LC No. 2016-257301-FH

               Defendant-Appellant.


Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals by delayed leave granted her plea-based conviction of operating while
intoxicated, third offense, MCL 257.625(1) and (9),1 challenging her departure sentence of 18
months to 5 years’ imprisonment. We vacate defendant’s sentence and remand for resentencing.

        In November 2015, defendant was stopped by the police for driving 64 miles per hour in
a 50-mile-per-hour zone. After the officer smelled intoxicants, defendant was given two sobriety
tests and she failed one. A blood draw was conducted and her blood alcohol content was 0.289.
Subsequently, defendant pleaded guilty to one count of operating while intoxicated, third
offense. The recommended minimum sentencing guidelines range was 0 to 6 months’
imprisonment. However, while awaiting sentencing and within two weeks of pleading guilty,
defendant acquired another drunken driving charge to which she also pleaded guilty. At
sentencing for this matter, the trial court was advised about the new drunken driving charge and
sentenced defendant to 18 months to five years’ imprisonment. The court stated that it was
exceeding the advisory guidelines because defendant was a danger to herself and to the
community. Further, the court noted, probation was clearly not going to work for defendant who
needed to be punished and the community needed to be protected.

        On appeal, defendant argues that she is entitled to resentencing because the reasons
supporting the trial court’s departure sentence were insufficient and the trial court did not explain
the extent of the departure sentence.


1
 People v Brynn, unpublished order of the Court of Appeals, entered May 1, 2017 (Docket No.
337481).


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        This Court reviews a sentence that departs from the applicable advisory guidelines range
for reasonableness. People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). When
reviewing a sentence for reasonableness, the proper inquiry is whether the trial court abused its
discretion by imposing a sentence that violates the principle of proportionality, i.e., a sentence
that is not “ ‘ proportionate to the seriousness of the circumstances surrounding the offense and
the offender.’ ” People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), quoting
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The principle of proportionality
demands that the “ ‘sentence is proportionate to the seriousness of the matter, not whether it
departs from or adheres to the guidelines’ recommended range.’ ” Steanhouse, 500 Mich at 472,
quoting Milbourn, 435 Mich at 661. Factors that may be considered under the proportionality
standard include (1) the seriousness of the offense, (2) factors inadequately considered by the
guidelines, and (3) factors not considered by the guidelines, including the defendant’s potential
for rehabilitation. People v Walden, 319 Mich App 344, 352-353; 901 NW2d 142 (2017)
(citation omitted).

         Defendant argues that in rendering her departure sentence the trial court engaged in a
sentencing analysis that was unfair and unreasonable because the court relied on the fact that
defendant acquired a new drunken driving charge while awaiting sentencing in this case.
Defendant admits that the new drunken driving charge was not taken into consideration when the
guidelines were scored, but claims that even if it had been, the guidelines range would have been
0 to 11 months, which was still less than the 18-month sentence rendered. However, the trial
court was clearly permitted to consider the fact that within two weeks of pleading guilty to
operating while intoxicated, third offense, defendant was again drinking and driving a motor
vehicle. “Misbehavior after arrest is clearly a legitimate factor to consider at sentencing.”
People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995). The court also recognized that
the additional drunken driving charge would constitute a second drunk driving felony,
illustrating that defendant was a danger not only to herself, but to the community. And it is plain
that, considering the timing of the new drunken driving charge, the court concluded that
defendant did not take this matter seriously and had a limited rehabilitation potential. We
conclude that the factors considered by the trial court in rendering its departure sentence were
proper and supported its departure decision.

        When a trial court departs from the sentencing guidelines we must evaluate not only
whether reasons exist to support departure, but also whether the extent of the departure satisfies
the principle of proportionality. As the Milbourn Court noted, the extent of a departure may
constitute a violation of the principle of proportionality because “[t]oo frequently reasons are
given for a sentence that apply equally to a lesser or greater sentence unless an explanation is
offered on the record for the specific sentence given.” Milbourn, 435 Mich at 659-660
(quotation marks and citation omitted; emphasis in original). Thus, “[a] sentence cannot be
upheld when the connection between the reasons given for departure and the extent of the
departure is unclear.” People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Accordingly,
to aid appellate review, a trial court must explain “why the sentence imposed is more
proportionate to the offense and the offender than a different sentence would have been.” Id. at
311. In this case, the trial court failed to articulate why the minimum sentence of 18 months’
imprisonment was more proportionate under the circumstances than a different sentence would
have been. Accordingly, we must vacate defendant’s departure sentence and remand for
resentencing. See Steanhouse, 500 Mich at 476.

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        Defendant’s sentence is vacated and this matter is remanded for resentencing. We do not
retain jurisdiction.



                                                          /s/ Mark J. Cavanagh
                                                          /s/ Cynthia Diane Stephens




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