                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 21, 2017
               Plaintiff-Appellee,

v                                                                    No. 334633
                                                                     Wayne Circuit Court
ALVIN TRYON HARRIS,                                                  LC No. 16-002736-01-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of third-degree fleeing and eluding
a police officer (fleeing and eluding), MCL 257.602a(3), and failure to stop after a collision,
MCL 257.620. Defendant was sentenced, as a second habitual offender, MCL 769.10, to 4 to 7½
years’ imprisonment for the fleeing and eluding conviction, and 17 days, time served, in the
Wayne County Jail for the failure to stop after a collision conviction. For the reasons set forth in
this opinion, we affirm.

                                       I. BACKGROUND

         On September 13, 2015 at approximately 3:00 a.m., Harper Woods police effectuated a
traffic stop on an orange Dodge Caliber traveling over the speed limit. As the officer approached
the vehicle he saw the driver and a female passenger. Within five to eight seconds of making
contact with the driver, the driver sped off. Pursuant to Harper Woods Police Department policy,
police did not give chase. However, sometime later that morning officers came upon a 2007 red
Dodge Caliber that had flipped over onto its roof. When contact was made with the driver of the
red Caliber, she told police that an orange vehicle had collided with hers, causing her vehicle to
get flipped. She further informed police that the driver of the orange vehicle did not stop.

       Police then reviewed the dash camera of the patrol vehicle that had stopped the orange
Caliber and made contact with the owner. The owner reported to police that his daughter Vivian
Taylor had the vehicle on the night of the accident. The vehicle was parked in the back yard of
the owner’s home and police took pictures of the damaged vehicle.




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        Shortly thereafter police made contact with Taylor who told them that defendant was
driving the vehicle on the night of the traffic stop and accident. She told police that she was at a
nightclub but became too intoxicated to drive so defendant drove her.1 She further testified that
defendant was driving when police stopped him and he was also driving a short time later when
he collided with another vehicle. After the collision, Taylor testified that defendant drove the
vehicle to the parking garage at Motor City Casino.

       Defendant was convicted and sentenced as indicated above. This appeal then ensued.

                                           II. ANALYSIS

       On appeal, defendant challenges the reasonableness of his sentence of 4 to 7½ years’
imprisonment for the fleeing and eluding conviction. Defendant asserts that resentencing is
required because the trial court did not articulate any rationale for the upward departure, or
extent of the departure, when it more than doubled the minimum guidelines range of 0 to 21
months’ imprisonment for defendant’s fleeing and eluding conviction.

        This Court reviews a sentence that departs from the applicable minimum sentencing
guidelines range for reasonableness. People v Steanhouse, 500 Mich 453, 459-460; ___ NW2d
___ (2017). This Court reviews the reasonableness of a departure sentence for an abuse of the
trial court’s discretion. Id.; People v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017), lv
pending (Docket No. 330144). A trial court abuses its discretion if it imposes a sentence that
violates the principle of proportionality. Steanhouse, 500 Mich at 471. Under this principle, “
‘the key test is whether the sentence is proportionate to the seriousness of the matter, not whether
it departs from or adheres to the guidelines recommended range.’ ” Id. at 472, quoting People v
Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990).

        During defendant’s sentencing hearing, the trial court noted that defendant had
misrepresented his employment status. Defendant had stated that he was working as an
employee of Fiat Chrysler Automobiles at the Jefferson North Assembly Plant at the time of his
arrest, and defendant’s sentencing hearing was adjourned to verify his employment status. The
trial court noted that this verification could “play a role” in determining defendant’s sentence.
However, Fiat Chrysler Automobiles informed the trial court that defendant’s employment had
terminated on April 19, 2013. The trial court stated that, in light of this information, it
considered defendant to be “pathologically dishonest” and expressed concern about defendant’s
“history and pattern of conduct . . . with respect to police officers.” The trial court noted that
defendant had a number of minor traffic offenses, a prior conviction of fleeing and eluding, and a
prior conviction of resisting and obstructing a police officer.

        On appeal, defendant argues that the trial court articulated no reasoning for the departure
or the extent of the departure, and alternatively, that the trial court did articulate a reason for the



1
 It was unclear from Taylor’s testimony and her statements to the police as to where she and
defendant were going.


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departure, albeit an improper reason: defendant’s prior criminal history, which was already
accounted for by the sentencing guidelines.

        In the sentencing context, a trial court abuses its discretion if it imposes a sentence that is
not proportional under the standard set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990). Steanhouse, 500 Mich at 471. For a sentence to be reasonable under the principle of
proportionality, the sentence should “be proportionate to the seriousness of the circumstances
surrounding the offense and the offender” and should “take into account the nature of the offense
and the background of the offender.” Steanhouse, 500 Mich at 474, quoting Milbourn, 435 Mich
at 636, 651 (quotation marks omitted). “[D]eparture 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.” People v Masroor, 313 Mich App 358, 374; 880 NW2d 812
(2015), aff’d in part, rev’d in part on other grounds by Steanhouse, 500 Mich 453 (quotation
marks and citations omitted). “The extent of the departure must also satisfy the principle of
proportionality.” Id.

        Contrary to defendant’s argument on appeal, the trial court articulated its reasons for the
upward departure, which also support its finding for the extent of the departure. Specifically, the
trial court expressed concern over defendant’s dishonest conduct and continuing pattern of
conduct “with respect to police officers.”

        Defendant argues alternatively on appeal that the trial court’s rationale was improper
because the sentencing guidelines already accounted for defendant’s prior criminal history.
Defendant’s argument refers to prior record variables (PRV) 2 and 5, and offense variable (OV)
13. PRV 2 involves “prior low severity felony convictions.” MCL 777.52(1). The trial court in
this case assessed 20 points under PRV 2, which is appropriate if defendant “has three prior low
severity felony convictions.” MCL 777.52(1)(b). PRV 5 of involves “prior misdemeanor
convictions.” MCL 777.55(1). The trial court assessed two points under PRV 5, which is
appropriate if defendant “has one prior misdemeanor conviction.” MCL 777.55(1)(e). The trial
court assessed no points under OV 13, which involves a “continuing pattern of criminal
behavior.” MCL 777.43(1).

        The trial court did not base its departure rationale on the number or amount of the crimes
defendant committed, but rather, on defendant’s dishonest conduct and his continuing pattern of
conduct “with respect to police officers.” Neither PRV 2 nor PRV 5 accounts for a pattern of
conduct that is dishonest and oppositional to police officers. Nor does OV 13 address this
specific concern articulated by the trial court because OV 13 is limited to “a continuing pattern
of criminal behavior.” MCL 777.43(1).

        The trial court listened to all the testimony elicited during trial and questioned defendant
prior to imposing sentencing. The trial court properly weighed the seriousness of the offense and
the background of defendant, thereby adhering to the test articulated by the United States
Supreme Court for proportionately over 100 years ago. See, Weems v United States, 217 US
349, 367; 30 S Ct 544; 54 L Ed 793 (1910), holding, “ . . . a judge helps to fulfill the overall
legislative scheme of criminal punishment by taking care to assure that the sentences imposed
across the discretionary range are proportionate to the seriousness of the matters that come

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before the court for sentence. In making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the offender.” See also, Milbourn, 435
Mich at 65. The trial court having made those findings in this matter, we hold that the trial
court’s decision to depart upward from defendant’s recommended guidelines range was
proportionate to the seriousness of the circumstances surrounding the offense and the offender.

       Affirmed.



                                                          /s/ Michael J. Talbot
                                                          /s/ Stephen L. Borrello
                                                          /s/ Michael J. Riordan




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