                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 15, 2016
               Plaintiff-Appellant,

v                                                                  No. 326741
                                                                   St. Clair Circuit Court
TOMMY VERNELL TAYLOR,                                              LC No. 14-002402-FH

               Defendant-Appellee.


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

PER CURIAM.

       The prosecutor appeals by right defendant’s sentence of one year in the county jail
following his jury conviction of operating a motor vehicle while intoxicated (OWI) causing
death, MCL 257.625(4)(a). We remand for further sentencing proceedings consistent with this
opinion.

        On June 3, 2014, defendant struck and killed a bicyclist while driving his motor vehicle
that night. Defendant was arrested at the scene, where he failed field sobriety tests and admitted
that he had been drinking. A subsequent blood test confirmed that defendant was under the
influence of alcohol. And, following a jury trial, defendant was found guilty as charged.

        Prior to sentencing, defendant filed a memorandum requesting a downward departure
from the recommended sentencing guidelines range of 29 to 57 months. Defendant argued that
substantial and compelling reasons existed because: (1) numerous people wrote to the court on
his behalf evidencing strong family and community support; (2) he had been employed for 15
years at DTE, climbing through the ranks, and had a strong work ethic; (3) he was enrolled in the
engineering program at the University of Michigan to complete his degree; (4) he had no
criminal record; (5) he had Homeland Security clearances while working at a power generating
utility company; (6) he had shown remorse; (7) he did not flee the scene of the accident and
called 911; (8) he had not drank alcohol since the accident and was on an alcohol tether; (9) he
was a role model to others; (10) he cooperated with police in this matter; (11) speed was not a
factor in the accident and the victim was struck on the roadway while he was riding a bicycle at
night without the proper red reflector; and (12) he was not a threat to the community. Defendant
requested the court to consider the totality of the circumstances and render a non-prison
sentence. More specifically, defendant requested incarceration in the county jail not to exceed
one year, with a work pass to his employment at DTE.

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        The prosecution responded to defendant’s sentencing memorandum, arguing that
defendant’s purported justifications for a downward departure were insufficient because: (1)
numerous people submitted letters describing the victim and their loss arising from his death; (2)
“legal occupation” is not a reason to depart from the guidelines; (3) having an education does not
warrant a departure from the guidelines; (4) defendant’s criminal history was already considered
in the guidelines; (5) this felony conviction would likely jeopardize any Homeland Security
clearance defendant may have had; (6) “remorse” is not an objective factor and cannot support a
downward departure but, further, throughout his trial defendant blamed the victim as being
grossly negligent; (7) the fact that defendant did not flee the scene and that he called 911 was not
compelling considering the number of witnesses to this incident; (8) whether defendant drank
alcohol before he had the alcohol tether is unknown and in any case not an objective reason for a
downward departure; (9) whether defendant was a role model was unknown but the victim was a
well-respected man who was looked up to by his young daughter, nieces, and nephews; (10)
defendant did not cooperate with police because he refused to take a breathalyzer or blood test
upon request by police; (11) there were no mitigating circumstances related to the accident,
particularly with regard to the victim’s bicycle being properly lit or equipped because the jury
clearly held that it was defendant who caused the victim’s death and not the victim or his
bicycle; and (12) review of defendant’s driving record revealed that he had speeding violations in
2007, 2008 and 2010, as well as a failure to yield ticket in 1999 and a sudden acceleration ticket
in 2004. The prosecution requested the trial court to find that there were no substantial and
compelling reasons to depart from the recommended guidelines sentencing range of 29 to 57
months. The prosecution argued that if defendant was merely sentenced to jail with a work pass,
such a sentence would be more appropriate for a conviction of OWI that did not cause death—
which would be disproportionate.

         At the sentencing hearing, the parties made arguments consistent with their briefs.
Following the arguments, the trial court noted that defendant: (1) was 38 years old, (2) had no
criminal record, (3) had no alcohol-related driving offenses, (4) was employed by DTE for over
15 years and held the position of senior power plant operator, (5) completed at least three years
of instruction at the University of Michigan, (6) owned his own home, (7) had strong family
support as evidenced by the numerous people in the court room, (8) had strong community
support as evidenced by about 25 or so letters the court received, including one from a pastor of
note, (9) appeared to have significant rehabilitative potential, (10) had not consumed alcohol
since this accident, (11) had submitted proof that he had no alcohol use disorder, and (12) the
police all testified that defendant was cooperative after the tests had been performed. The court
noted that, considering all of these facts and all of the circumstances in this case, it believed that
a significant period of incarceration was in order, which could be accomplished by a downward
departure from the sentencing guidelines. The court then sentenced defendant to one year in the
county jail, without a work release pass for at least the first six months, as well as five years of
probation. The court noted that this was not a lenient sentence and would place significant
restrictions on defendant. Moreover, being in jail for a year was not an easy sentence for a
person of defendant’s background, education, and professional work experience. “[T]his is a
true and significant punishment.” And probation was not easy the court noted; defendant’s
“freedom and actions will be under a microscope for five years with the threat of prison hanging
over his head, the chance of going to prison at any time should he violate.” The court noted that
“[i]n many ways this is more severe than sending somebody to prison and then having it done
with.” And one of the terms and conditions of probation, among many others, would be that
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defendant not consume alcohol, a violation of which would result in prison. Thereafter, the
sentencing hearing concluded.

       On appeal, the prosecution argues that the trial court erred in imposing an unreasonable
sentence of one year in the county jail where the sentencing guidelines range was 29 to 57
months in prison.

       As the prosecution notes, in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015),
our Supreme Court struck down the requirement that a sentencing court articulate a substantial
and compelling reason for rendering a sentence that departs from the applicable guidelines range.
Id. at 364-365. And, while sentencing courts are not bound by the applicable sentencing
guidelines range, they still must “continue to consult the applicable guidelines range and take it
into account when imposing a sentence.” Id. at 392. Further, in order to facilitate appellate
review, sentencing courts must justify their sentencing decisions. Id. “A sentence that departs
from the applicable guidelines range will be reviewed by an appellate court for reasonableness,”
and resentencing will be required when a sentence is unreasonable. Id. However, the Lockridge
Court did not elaborate on the “reasonableness standard.”

        In People v Steanhouse, 313 Mich App 1, 46-47; 880 NW2d 297 (2015), this Court
adopted the “principle of proportionality” test set forth in People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990), to review the reasonableness of a departure sentence. Under that test, “a given
sentence [could] be said to constitute an abuse of discretion if that sentence violate[d] the
principle of proportionality, which require[d] sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Id. at 45, quoting Milbourne, 435 Mich at 636. In other words, the trial court is required to
impose a sentence that considers both the nature of the offense and the offender’s background.
Id., quoting Milbourne, 435 Mich at 651.

        As further explained in People v Masroor, 313 Mich App 358; 880 NW2d 812 (2015),
“Milbourn instructs that departure sentences ‘are appropriate where the guidelines do not
adequately account for important factors legitimately considered at sentencing’ so that the
sentence range calculated under the guidelines ‘is disproportionate, in either direction, to the
seriousness of the crime.’ ” Id. at 374, quoting Milbourne, 435 Mich at 657. Moreover, the
“extent of the departure must also satisfy the principle of proportionality.” Id., citing Milbourne,
435 Mich at 660.

       In this case, defendant was sentenced before the “substantial and compelling reason”
standard was overturned by Lockridge. In Steanhouse, we held that, where a defendant was
sentenced to a downward departure sentence before the “substantial and compelling reason”
standard was overturned and thus where the trial court was not bound by the “principle of
proportionality” reasonableness standard at the time of sentencing, the matter should be
remanded for a Crosby1 procedure “to determine what effect Lockridge would have on the
defendant’s sentence, so that it may be determined whether any prejudice resulted from the


1
    United States v Crosby, 397 F3d 103, 117 (CA 2, 2005).


                                                -3-
error.” Steanhouse, 313 Mich App at 48, quoting People v Stokes, 312 Mich App 181, 200-201;
877 NW2d 752 (2015). Accordingly, this case must be remanded to the trial court for a Crosby
proceeding.

        We note the prosecution’s argument that the sentence imposed “was unreasonable in light
of the Defendant’s crime.” But irrespective of whether the trial court inadvertently satisfied or
did not satisfy the Milbourn principle of proportionality test, “[t]he Court’s language in
Steanhouse leaves little room for deferential review” of the proportionality of a sentence
imposed before Lockridge was decided. Masroor, 313 Mich App at 377. Because when the trial
court sentenced defendant it “was unaware of, and not expressly bound by, a reasonableness
standard rooted in the Milbourn principle of proportionality,” we are required to remand the
matter to the trial court pursuant to the Crosby remand procedure. Steanhouse, 313 Mich App at
48; see also Masroor, 313 Mich App 377-378; People v Shank, 313 Mich App 221, 226; 881
NW2d 135 (2015).

       Because the prosecution is the party challenging the trial court’s departure sentence, on
remand the prosecution may “elect to forego resentencing” by informing the trial court that
resentencing will not be sought. See Steanhouse, 313 Mich App at 49; Lockridge, 498 Mich at
398. If resentencing occurs, the trial court must justify the extent of any departure sentence and
explain why the sentence imposed is proportionate to the seriousness of the offense, taking into
account defendant’s background and any mitigating factors. See Masroor, 313 Mich App 377-
378.

        We remand for further sentencing proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Henry William Saad
                                                            /s/ Karen M. Fort Hood




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