                          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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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.

SWARTZLE, J. (dissenting).

        I respectfully dissent. On August 10, 2016, defendant pleaded guilty to driving while
intoxicated, third offense, and she stipulated that she had a blood alcohol level of 0.289 at the
time—more than 3.5 times the legal limit. Sentencing was set for six weeks later. Then, on
August 24, 2016, defendant was arrested again for another drunk-driving offense in a different
county. The sentencing guidelines calculated in this case had not been adjusted at the time of her
sentencing.

         As I read the majority opinion, it arrives at two conclusions. First, that the trial court
properly considered defendant’s subsequent drunk-driving offense in rendering its sentence in
this case. Second, that the trial court improperly departed from the guidelines by failing to
justify the extent of its departure. With the first conclusion, I have no quarrel, though the same
cannot be said with the second.

        The calculated guidelines range of zero to six months of imprisonment was clearly
insufficient here, given that it did not include defendant’s post-conviction charge—her fourth
drunk-driving offense. Even had the guidelines been adjusted upwards from six to 11 months to
consider this fourth offense, a sentence of 11 months would itself be insufficient because it did
not consider the fact that defendant was charged with drunk driving within two weeks after she
pleaded guilty to drunk driving in this case. In other words, even had the guidelines calculation
been adjusted to include the subsequent offense, such adjustment would not have distinguished
defendant’s situation from that of a person who had learned from prior convictions and abstained
from drunk driving for several years, but then later relapsed. In short, even an adjusted
guidelines range would not have adequately accounted for the circumstances surrounding this
defendant and this offense.


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        The trial court clearly had these considerations in mind when it explained that it was
departing upward because defendant had not taken the earlier charges seriously, had limited
potential for rehabilitation if she received only probation, and would endanger herself and the
community—all unassailable statements given the record before us. The trial court’s explanation
justified a sentence above 11 months of imprisonment. Whether 18 months was somehow the
optimal sentence, as opposed to 12, 16, or 20 months, is not before us on appeal. We need only
determine whether the sentence was proportionate to this defendant and this offense, and on that
score, the trial court adequately justified its sentence. Given the law and this record, I would
affirm defendant’s sentence and, accordingly, I respectfully dissent from the majority’s decision
to remand this case for resentencing.



                                                           /s/ Brock A. Swartzle




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