                             STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

v                                                                  No. 333317
                                                                   Wayne Circuit Court
LAKEISHA NICOLE GUNN,                                              LC No. 13-004566-01-FH

               Defendant-Appellant.


Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

GLEICHER, J. (dissenting).

        The issue presented is whether defendant Lakeisha Gunn’s sentence of 15 to 30 years’
imprisonment for second-degree arson is invalid, entitling her to resentencing. The majority
holds that because Gunn’s minimum sentence falls within “the appropriate guidelines range,”
resentencing is not required. I believe Gunn’s sentence represents a departure, and respectfully
dissent.

        When Gunn was first sentenced in 2013, the probation department calculated her
sentencing guidelines only for the higher crime class offense, placing explosives on or near
property, MCL 750.207(2)(b), and not for second-degree arson, MCL 750.73(1). The trial court
selected the same minimum sentence for both crimes (15 years), which amounted to a departure
sentence for Gunn’s arson offense. Since Gunn would serve the longer sentence anyway, the
departure made no practical difference; any error in imposing it was harmless. But when the trial
court resentenced Gunn in 2016 and reduced her sentence for the higher crime class offense, the
departure sentence for arson was harmless no more. Because the trial court neglected to justify
Gunn’s departure sentence for second-degree arson, I would hold that sentence invalid and
would remand for a third resentencing to permit the trial court to either sentence Gunn within the
applicable guidelines, or to justify the departure sentence it imposed.




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        I rest my reasoning on several related rules. First, at the time Gunn committed the
offenses of conviction, second-degree arson was a class D felony; it is now a class B offense.1
MCL 769.34(2) provides in relevant part that a defendant’s sentence “shall be within the
appropriate sentence range under the version of those sentencing guidelines in effect on the date
the crime was committed.” As a class D felony, the guidelines’ minimum sentencing range for
second-degree arson was 34 to 100 months for a third habitual offender such as Gunn. Her
minimum sentence (180 months) is well above that range. And although a sentencing court has
discretion to depart from the guidelines, it must explain why the sentence it has elected to impose
is more proportionate to the offense and the offender than a within-guidelines sentence would be.
Despite two resentencing hearings, the court has not justified either the departure or its extent.

        A brief review of the procedural history of this case helps explain this omission. In
Gunn’s initial appeal, we held that the trial court had mistakenly sentenced Gunn for a crime she
did not commit (placing explosives on or near property, MCL 750.207(2)(b)) rather than her
actual crime of conviction (placing an offensive or injurious substance in or near real property
with intent to injure or damage property. MCL 750.209(1)(b)). We vacated Gunn’s sentence for
placing explosives on real property and ordered that she be resentenced on the correct
conviction. Gunn filed an application for leave to appeal in the Supreme Court challenging other
aspects of our initial opinion, including whether judicial fact-finding entitled her to resentencing
under Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013). The
Supreme Court affirmed but for the Alleyne claim; pursuant to People v Lockridge, 498 Mich
358; 870 NW2d 894 (2015), the Supreme Court remanded for a determination of whether the
trial court would have imposed a materially different sentence had its discretion not been
unconstitutionally constrained.

        On remand, the trial court expressed confusion about whether the Supreme Court
intended both of Gunn’s sentences to be subject to the Lockridge remand, or only the sentence
for the higher crime-class offense (placing an offensive or injurious substance in or near real
property with intent to injure or damage property). The court acknowledged that the arson
sentence was “really based on” the sentence for placing an offensive or injurious substance in or
near real property, and observed that it was not required to score the guidelines for the arson
conviction, a class D offense, given that they had been scored for the more serious class B
offense. See People v Lopez, 305 Mich App 686; 854 NW2d 205 (2014). Gunn’s counsel
suggested that the two offenses should be treated differently “as far as remedy is concerned,” but
the trial court declined to do so. Instead, it announced that it would have imposed the same
sentences even absent the unconstitutional constraint on its discretion.

       The trial court then turned to this Court’s order for resentencing on the more serious of
the two convictions. To fulfill this Court’s mandate, the trial court ordered an updated
presentence report based on the correct crime of conviction. At the subsequent (second)



1
  Effective October 1, 2013, the Legislature amended MCL 771.6c, which had deemed “arson of
real property” to be a class D offense, to reflect that “second degree arson” constituted a class B
crime. Gunn committed the arson in April 2013.


                                                -2-
resentencing hearing, the court considered a sentencing memorandum prepared on Gunn’s
behalf, which included a report submitted by a social worker familiar with Gunn’s conduct
during her incarceration. Gunn also addressed the court. Based on the mitigating circumstances
brought to the court’s attention, the court reduced Gunn’s minimum sentence from 15 to 10 years
for the injurious substance conviction. But the court refused to reconsider Gunn’s arson sentence
based on the court’s expressed belief that it was “valid” when imposed. As a result, Gunn is now
serving an unexplained departure sentence for second-degree arson, and a sentence within the
guidelines for the higher crime category offense, despite that both convictions arise from
precisely the same conduct.

       I acknowledge that initially the probation department was required to score only the
higher crime classification offense, as Gunn would serve her sentences concurrently. People v
Mack, 265 Mich App 122; 695 NW2d 342 (2005).2 This Court explained in Lopez that the
probation department is not obligated to score a minimum sentence range for a concurrent
conviction of a lower-crime-class offense because

       except in possibly an extreme and tortured case, the guidelines range for the
       conviction with the highest crime classification will be greater than the guidelines
       range for any other offense. Given that the sentences are to be served
       concurrently, the guidelines range for the highest-crime-class offense would
       subsume the guidelines range for lower-crime-class offenses, and there would be
       no tangible reason or benefit in establishing guidelines ranges for the lower-
       crime-class offenses. [Lopez, 305 Mich App at 691-692.]


While I’m not sure that the phrase “extreme and tortured” applies here, both Mack and Lopez
nevertheless prophesied the problem this case presents: a departure sentence lacking an
articulated justification. In Mack, we specifically questioned “whether a sentence for a
conviction of the lesser class felony that is not scored under the guidelines . . .could permissibly
exceed the sentence imposed on the highest crime class felony and remain proportional.” Mack,
265 Mich App at 129. And in Lopez, the majority reiterated concern that a conviction for a
lesser class felony not scored under the guidelines could wind up exceeding the guidelines for
that crime. Lopez, 305 Mich App at 692. This case exemplifies the departure dilemma predicted
in Lopez and Mack.

        In People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), the Supreme Court
emphasized that although the sentencing guidelines are now advisory rather than mandatory, a
sentence must be proportional. “The principal of proportionality” has guided sentencing at least
since the Court’s decision in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Pursuant
to that principal,




2
 I respectfully disagree with Mack’s reasoning. See Lopez, 305 Mich App at 696 (GLEICHER, J.,
concurring in part and dissenting in part).


                                                -3-
       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 before the court for
       sentencing. In making this assessment, the judge, of course, must take into
       account the nature of the offense and the background of the offender. [Id. at 651.]

When applying the Milbourn proportionality standard, “the guidelines ‘remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion’ that trial courts ‘must consult’
and ‘take . . .into account when sentencing.’ ” Steanhouse, 500 Mich at 475. And courts must
also continue to “justify the sentence imposed in order to facilitate appellate review.” Id. at 470.

        I would hold that the trial court violated the principal of proportionality by imposing a
departure sentence for second-degree arson without justifying its reasons for doing so. Scoring
only the higher crime class makes sense from an efficiency perspective when a defendant’s
sentence for the lower crime class offense is within the guidelines and will necessarily be
subsumed by a longer sentence. That was the case before Gunn was resentenced for the second
time. But the trial court’s decision to significantly reduce Gunn’s sentence for the higher crime
class offense eliminated the rationale for scoring only the higher crime class felony, and thereby
also created a departure sentence for second-degree arson. The “principal of proportionality”
dictates that the trial court tailor a defendant’s sentence to the circumstances surrounding the
offense and the qualities of the offender. Here, the two convictions are for precisely the same
conduct. The information relayed at the second resentencing hearing persuaded the trial court to
reduce Gunn’s sentence for the higher crime class offense. No reasons have been offered for
departing upward by almost doubling the applicable highest permissible minimum sentence for
second-degree arson.

        I would hold that because the trial court failed to justify this departure sentence, it
qualifies as invalid. Contrary to the trial court’s belief and the majority’s reasoning, the trial
court was empowered to correct an invalid sentence. See MCR 6.429 (A); People v Buehler, 477
Mich 18, 28; 727 NW2d 127 (2007) (“Defendant’s probationary sentence is a departure from the
appropriate guidelines sentence range, and the trial court failed to articulate substantial and
compelling reasons for the departure on the record as required by MCL 769.34(3). Because
defendant’s sentence is invalid, we reverse the judgment of the Court of Appeals and remand the
case to the Ottawa Circuit Court for an articulation of substantial and compelling reasons on the
record or resentencing.”). I would remand for resentencing.



                                                             /s/ Elizabeth L. Gleicher




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