                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 1, 2015
              Plaintiff-Appellant,

v                                                                 No. 322501
                                                                  Benzie Circuit Court
SHAWN LEE GATZKE,                                                 LC No. 13-002312-FH

              Defendant-Appellee.


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

       Defendant pleaded guilty to one count of using a computer to commit a crime, MCL
752.796.1 The trial court departed downward from the sentencing guidelines and sentenced
defendant to 5 years of probation, with the first year to be served in the county jail. The
prosecution sought leave to appeal, which we granted.2 We remand for further proceedings
consistent with this opinion.

                               I. FACTUAL BACKGROUND

       At the plea hearing, defendant admitted that he used a computer to view pictures of
children performing sexual acts and paid someone in another country to take pictures of children
performing particular sexual acts.3 It is undisputed that defendant was on probation for
possessing and distributing child sexually abusive material when he was caught with the
materials giving rise to the conviction in this case.



1
  In exchange, 19 other counts were dismissed, and the prosecution agreed to dismiss a third
habitual offender notice.
2
 People v Gatzke, unpublished order of the Court of Appeals, entered August 7, 2014 (Docket
No. 322501).
3
 Defendant initially stated that he was not certain whether the photographs that he purchased
were reproduced, or whether the individual receiving payment actually took the photographs.
However, he later clarified that he asked the individual to take pictures of young children
performing sexual acts with his or her cell phone and send the photographs to defendant.


                                              -1-
       Before sentencing, the trial court received a report from a psychological evaluation of
defendant that occurred after he entered his guilty plea, as well as reports from two previous
psychological evaluations. The most recent evaluation confirmed, among other things, that
defendant suffers from severe post-traumatic stress disorder (“PTSD”), alcohol dependence, and
sexual addiction. The report also noted that defendant’s sexual addiction appears to be related to
the poor coping strategies utilized by defendant to manage his PTSD.

        At sentencing, the trial court acknowledged that this was defendant’s second offense
involving child sexually abusive material, and that defendant had an opportunity for
rehabilitation during his probation sentence for the previous offense. Likewise, the trial court
recognized that this circumstance would normally preclude a more lenient sentence.
Nevertheless, the trial court significantly departed from the minimum range calculated under the
sentencing guidelines, which was 84 to 140 months’ imprisonment, and sentenced defendant to
five years’ probation, with the first year in the county jail. The conditions of defendant’s
probation include: (1) taking advantage of services offered by the United States Department of
Veterans Affairs (“VA”) (2) successfully completing the VA program prescribed following a VA
assessment, and (3) participating in a substance abuse evaluation.

        The trial court judge provided the following reasons for the downward departure: (1) the
judge’s belief that PTSD is not well understood; (2) his belief that defendant’s PTSD prevented
him from recognizing his problems and seeking out treatment, such that defendant is “numb” due
to his PTSD and engaged in this criminal activity as a result; (3) the judge’s experiences with his
own great uncle, who suffered from PTSD following World War I; (4) the judge’s belief that
“defendant engaged in these kind of viewing activities essentially to anesthetize himself from
facing his ongoing problems”; (5) the fact that “it wouldn’t surprise [the judge] if [d]efendant’s
viewing activities started when he was in the army” and “if this is what soldiers did in
Afghanistan with their time off if they had computer access”; (6) his belief that defendant would
not have viewed this material if he had not served in Afghanistan, although “[he] suppose[d]
there’s no way of proving it”; and (7) the judge’s knowledge of the types of things that military
personnel saw and experienced in Afghanistan based on materials he has read.

II. REVIEWING A DEFENDANT’S DEPARTURE SENTENCE FOR REASONABLENESS

        On appeal, the prosecution argues that the trial court abused its discretion when it
departed from the sentencing guidelines because it failed to justify its departure with a
sufficiently substantial and compelling reason that was based on objective and verifiable facts.4



4
  The prosecution also argues that the trial court erroneously failed to justify the extent of its
departure from the sentencing guidelines. However, the gravamen of the prosecution’s argument
is not that the trial court failed to adequately explain the extent of its departure, but that the trial
court failed to provide adequate reasons for the extent of the departure because it “ignored
numerous factors of greater importance” and “focused solely on [defendant’s] military service
and PTSD and the assumption that it led [defendant] to possess and order the production of . . .
child pornography.” As such, we understand this argument to be an extension of the

                                                  -2-
See People v Smith, 482 Mich 292, 299; 754 NW2d 284 (2008). However, under the significant
modifications to the Michigan sentencing scheme implemented under People v Lockridge, 498
Mich 358, 364-365, 391-392; ___ NW2d ___ (2015), a trial court is no longer required to
provide a substantial and compelling reason for a departure sentence. This Court summarized
the changes as follows:

        [The Lockridge Court] held that our sentencing scheme “violates the Sixth
       Amendment right to a jury trial because it requires ‘judicial fact-finding beyond
       facts admitted by the defendant or found by the jury to score offense variables
       (OVs) that mandatorily increase the floor of the guidelines minimum sentence
       range, i.e., the “mandatory minimum” sentence under Alleyne.’ ” Our Supreme
       Court “concluded that the appropriate remedy was to render Michigan’s
       sentencing guidelines merely advisory.” Accordingly, our Supreme Court
       “sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck] down
       the requirement of a ‘substantial and compelling reason’ to depart from the
       guidelines range in MCL 769.34(3).” “A sentence that departs from the
       applicable guidelines range will be reviewed by an appellate court for
       reasonableness.” However, sentencing courts must “continue to consult the
       applicable guidelines range and take it into account when imposing a sentence.”
       [People v Terrell, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No.
       321573); slip op at 6-7 (footnotes omitted; emphasis added).]

       Accordingly, a claim of error based on a trial court’s failure to provide substantial and
compelling reasons for a departure sentence is no longer viable under Michigan law. Instead,
after Lockridge, the proper inquiry is whether a defendant’s departure sentence is reasonable.
Lockridge, 498 Mich at 365, 391-392; Terrell, ___ Mich App at ___, slip op at 7.

        As this Court recently recognized, the Lockridge Court did not set forth the appropriate
procedure for reviewing a sentence for reasonableness. People v Steanhouse, ___ Mich App ___
___; ___ NW2d ___ (2015) (Docket No. 318329); slip op at 21. Thus, the Steanhouse Court
adopted the “principle of proportionality” that was previously in place under People v Milbourn,
435 Mich 630; 461 NW2d 1 (1990), “hold[ing] that a sentence that fulfills the principle of
proportionality under Milbourn and its progeny constitutes a reasonable sentence under
Lockridge.” Steanhouse, ___ Mich App at ___; slip op at 23-24. In addition, the panel provided
the following procedure for reviewing a defendant’s departure sentence:

               Given that Lockridge overturned the substantial and compelling reason
       standard, Lockridge, ___ Mich at ___; slip op at 29, which was in place at the
       time of defendant’s sentencing, and given our conclusion that the principle of
       proportionality established under Milbourn and its progeny is now the appropriate
       standard by which a defendant’s sentence should be reviewed, we also find that
       the procedure articulated in Lockridge, and modeled on that adopted in United
       States v Crosby, 397 F3d 103 (CA 2, 2005), should apply here. Lockridge, ___

prosecution’s claim that the trial court failed to base its departure on sufficiently substantial and
compelling reasons.


                                                -3-
       Mich at ___; slip op at 33-36. As recently stated by this Court in People v Stokes,
       ___ Mich App ___, ___; ___NW2d ___ (2015); slip op at 11, “the purpose of a
       Crosby remand is to determine what effect Lockridge would have on the
       defendant’s sentence, so that it may be determined whether any prejudice resulted
       from the error.” While the Lockridge Court did not explicitly hold that the
       Crosby procedure applies under the circumstances of this case, we conclude this
       is the proper remedy where, as here, the trial court was unaware of and not
       expressly bound by a reasonableness standard rooted in the Milbourn principle of
       proportionality at the time of sentencing.

               Under the Crosby procedure, which “offers a measure of protection to a
       defendant[,]” “a defendant is provided with an opportunity ‘to avoid resentencing
       by promptly notifying the trial judge that resentencing will not be sought.’ ”
       Stokes, ___ Mich App at ___; slip op at 11-12, quoting Lockridge, ___ Mich
       at___; slip op at 35. Given the possibility that defendant could receive a more
       severe sentence, defendant should be provided the opportunity to avoid
       resentencing if that is his desire. Stokes, ___ Mich App at ___; slip op at 12.
       Accordingly, we remand the matter to the trial court to follow the Crosby
       procedure outlined in Lockridge. Defendant “may elect to forego resentencing by
       providing the trial court with prompt notice of his intention to do so. If
       ‘notification is not received in a timely manner,’ the trial court shall continue with
       the Crosby remand procedure as explained in Lockridge.” Stokes, ___ Mich App
       at ___; slip op at 12, quoting Lockridge, ___ Mich at ___; slip op at 35-36.
       [Steanhouse, ___ Mich App at ___; slip op at 25.]

                                           III. APPLICATION

         Here, as in Steanhouse, the trial court was neither aware of, nor expressly bound by, a
reasonableness standard grounded in the Milbourn principle of proportionality when it imposed
defendant’s sentence. As such, under Steanhouse, remand is necessary so that the trial court may
implement the Crosby remand procedure as articulated in Lockridge. See Steanhouse, ___ Mich
App at ___; slip op at 25. However, unlike in Steanhouse, the prosecution is the party
challenging on appeal the trial court’s departure from the sentencing guidelines. Accordingly,
we conclude that it is the prosecution that may elect to forgo resentencing by promptly notifying
the trial court of its intent to do so. See Steanhouse, ___ Mich App at ___; slip op at 25; see also
Lockridge, 498 Mich at 398. If the trial court does not receive such notice from the prosecution
in a timely manner, the “court shall continue with the Crosby remand procedure as explained in
Lockridge.” Steanhouse, ___ Mich App at ___; slip op at 25 (quotation marks and citation
omitted).5



5
  While we are required to follow Steanhouse, this is an issue that requires a legislative fix.
Unlike the reasonableness standard articulated in 18 USC 3553(a), which applies to the federal
sentencing guidelines, and which the federal courts could fall back on after the United States
Supreme Court’s decision in United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d


                                                -4-
                                      IV. CONCLUSION

        For the reasons stated supra, we remand this case for further proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                           /s/ Jane E. Markey
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Michael J. Riordan




621 (2005), there is no parallel state statute that defines “reasonableness” for purposes of
Michigan’s sentencing guidelines. It is up to the Legislature to create one; it is not in the
province of this Court to do so.


                                               -5-
