                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 21, 2016
                Plaintiff-Appellant,

v                                                                   No. 320089
                                                                    Jackson Circuit Court
TIMOTHY MILES MEDLEY,                                               LC No. 12-005097

                Defendant-Appellee.


                                         ON REMAND


Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.

PER CURIAM.

        This case returns to us after the Supreme Court vacated our prior judgment in People v
Medley, unpublished opinion per curiam of the Court of Appeals, issued June 9, 2015 (Docket
No. 320089), and remanded “for reconsideration in light of People v Lockridge, 498 Mich 358[;
870 NW2d 502] (2015).”1 For the reasons provided below, we remand to the trial court for
further proceedings.

                           I. FACTS AND PROCEDURAL HISTORY

        Defendant pleaded guilty to second-degree fleeing or eluding a police officer, MCL
750.479a(4), and third-offense operating a vehicle while intoxicated (OWI), MCL 257.625. The
sentencing guidelines range for defendant’s minimum sentence was 29 to 71 months, but in
November 2013, the trial court sentenced defendant below the guidelines to two concurrent one-
year terms in jail for each offense. The prosecutor filed an application for leave to appeal, which
this Court granted,2 but when the parties subsequently stipulated to resentencing, the appeal was
dismissed.



1
    People v Medley, ___ Mich ___; 875 NW2d 227 (2016).
2
  People v Medley, unpublished order of the Court of Appeals, entered December 13, 2013
(Docket No. 319274).


                                                -1-
        At the January 2014 resentencing, the trial court again imposed the same one-year jail
term. The trial court based its sentence on the following factors: (1) defendant had allegedly
remained sober for a significant period of time, and (2) defendant did not injure anyone when he
eluded the police in a high-speed chase. The trial court also adopted defendant’s arguments for a
downward departure, which included: (1) defendant had been voluntarily using an alcohol
tether, (2) defendant ran a successful business, and (3) defendant felt remorse for his conduct.
The prosecutor again filed an application for leave to appeal the downward departure, which this
Court granted.3

        In June 2015, this Court vacated defendant’s sentence and remanded for resentencing.
Medley, unpub op at 4. In the opinion, we held that, contrary to MCL 769.34(3), the trial court
failed to articulate a substantial and compelling reason to justify the downward departure and
that the sentence imposed was not proportionate, particularly in light of defendant’s “extensive
criminal history,” including alcohol-related offenses (six drunk driving offenses) and three
fleeing or eluding convictions. Id. at 3-4.

      The Supreme Court vacated our judgment and ordered us to reconsider it in light of the
Supreme Court’s recent pronouncements in Lockridge.

                                         II. ANALYSIS

        In Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s sentencing
guidelines are unconstitutional to the extent that they require judicial fact-finding beyond facts
that were admitted by the defendant or found by the jury, which are then used to score offense
variables that increase the floor of the guidelines minimum sentence range. The concern is that
when a judge makes such findings of fact in a sentencing proceeding a defendant’s Sixth
Amendment right to a jury trial is violated. Id. The Court held that in order to avoid any Sixth
Amendment violation, Michigan’s sentencing guidelines are to be deemed advisory, instead of
mandatory. Id. at 391. However, sentencing courts must continue to consult the guidelines and “
‘take them into account when sentencing.’ ” Id., quoting United States v Booker, 543 US 220,
264; 125 S Ct 738; 160 L Ed 2d 621 (2005).

        In Lockridge, 498 Mich at 364-365, the Court also struck down “the requirement in MCL
769.34(3) that a sentencing court that departs from the applicable guidelines range must
articulate a substantial and compelling reason for that departure.” Instead of the substantial and
compelling standard, “[a] sentence that departs from the applicable guidelines range will be
reviewed by an appellate court for reasonableness.” Id. at 392.

       In People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015) (Docket No.
318329); slip op, pp 21-25, this Court held that the reasonableness of a sentence is determined by
using the “principle of proportionality” standard set forth in People v Milbourn, 435 Mich 630;
461 NW2d 1 (1990). This Court stated:


3
 People v Medley, unpublished order of the Court of Appeals, entered March 26, 2014 (Docket
No. 320089).


                                               -2-
         Under the new 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
         636. As such, trial courts were required to impose a sentence that took “into
         account the nature of the offense and the background of the offender.” Id. at 651.
         [Steanhouse, ___ Mich App at ___ (slip op at 23).]

This Court further explained:

                 Factors previously considered by Michigan courts under the
         proportionality standard included, among others, (1) the seriousness of the
         offense; (2) 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; and (3) factors that were inadequately considered by the guidelines
         in a particular case. [Id. at ___ (slip op at 24).]

        The Steanhouse Court adopted the Crosby4 remand procedure established in Lockridge
for cases in which the trial court departed from the sentencing guidelines and “was unaware of
and not expressly bound by [the] reasonableness standard rooted in the Milbourn principle of
proportionality at the time of sentencing.” Id. at ___ (slip op at 25). In Lockridge, our Supreme
Court stated:

         [O]n a Crosby remand, a trial court should first allow a defendant an opportunity
         to inform the court that he or she will not seek resentencing. If notification is not
         received in a timely manner, the court (1) should obtain the views of counsel in
         some form, (2) may but is not required to hold a hearing on the matter, and (3)
         need not have the defendant present when it decides whether to resentence the
         defendant, but (4) must have the defendant present, as required by [MCR 6.425],
         if it decides to resentence the defendant. Further, in determining whether the
         court would have imposed a materially different sentence but for the
         unconstitutional constraint, the court should consider only the circumstances
         existing at the time of the original sentence. [Lockridge, 498 Mich at 398
         (quotation marks and citations omitted).]

        In this case, following Lockridge and Steanhouse, a review of the trial court’s substantial
and compelling reasons for its downward departure is no longer relevant. Here, as in
Steanhouse, 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.”
Steanhouse, ___ Mich App at ___ (slip op at 25). Thus, as directed by Steanhouse, we remand
this case to the trial court for a Crosby proceeding. But because the prosecution is the party
challenging the trial court’s departure from the sentencing guidelines, on remand, the


4
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                 -3-
prosecution—not defendant—may “elect to forego resentencing” by providing the trial court
with prompt notice of its intention to do so. See id. (slip op at 25). If such notice is not received
by the trial court in a timely manner, it shall continue with the Crosby remand. Id. (slip op at
25). If resentencing occurs, the trial court must “specifically justify the extent of any departure
sentence the court may elect to impose,” and “explain why the sentence imposed is proportionate
to the seriousness of the convicted offenses, taking into account defendant’s background and any
mitigating factors brought forward by counsel.” People v Masroor, ___ Mich App ___; ___
NW2d ___ (Docket No 322280, issued November 24, 2015), slip op, p 11.

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



                                                              /s/ Mark T. Boonstra
                                                              /s/ Henry William Saad
                                                              /s/ Christopher M. Murray




                                                -4-
