                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 23, 2018
                Plaintiff-Appellee,

v                                                                  No. 335223
                                                                   Saginaw Circuit Court
JEREMY LEONARD STAFFORD,                                           LC No. 13-039385-FC

                Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

        Defendant was convicted of numerous offenses, the most serious of which was assault
with intent to commit murder, MCL 750.83, arising out of a violent attack against his wife in and
around their stopped vehicle on the shoulder of a highway during which defendant attempted
several times to throw her into traffic. He was sentenced as a fourth habitual offender, MCL
769.12, to 47½ to 80 years’ imprisonment for the crime. The sentence fell within the minimum
sentence guidelines range. Defendant’s sentences for the other crimes are not relevant to this
appeal. This Court previously affirmed defendant’s convictions but ordered a Crosby1 remand
for purposes of sentencing under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
People v Stafford, unpublished opinion per curiam of the Court of Appeals, issued February 9,
2016 (Docket No. 324651). More specifically, this Court remanded the case “for the trial court
to determine whether it would have imposed a materially differen[t] sentence under the
sentencing procedure described in . . . Lockridge[.]” Id., unpub op at 4. On remand, the trial
court, declining to resentence defendant, concluded that it would have imposed the same
sentence under advisory guidelines given defendant’s “extremely egregious conduct” and his
“history of assaultive crimes.” Defendant appeals that ruling, and we affirm.

       On appeal, defendant broadly maintains that his sentence of 47½ to 80 years in prison is
excessive, disproportionate, and unreasonable. Defendant begins his analysis by observing that
under People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016), review of his
sentence is foreclosed by MCL 769.34(10), considering that the sentence was within the
appropriate guidelines range, that there were no scoring errors, and that no inaccurate


1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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information was relied on in determining his sentence.2 Defendant proceeds to argue that his
sentence should be treated as a departure and thus reviewed for “reasonableness” under the
holding in Lockridge regarding departure sentences. See Lockridge, 498 Mich at 392.3 As best
we understand defendant’s argument, he contends that if one eliminates the offense variable
scores that entailed judicial fact-finding, the guidelines range would decrease to such an extent
that his minimum sentence of 47½ years, which was at the very top end of the guidelines range,
would reflect a departure, allowing a review for reasonableness. And defendant argues that the
sentence was not reasonable or proportionate. Defendant maintains that the constitutional
analysis in Lockridge supports his suggested approach and that Schrauben was wrongly decided
because it expressed that Lockridge did not effectively alter or diminish MCL 769.34(10).
Essentially, defendant is arguing that the evil of judicial fact-finding recognized in Lockridge is
equally problematic in the context of using judicially found facts to increase a guidelines range,
which in turn can foreclose or limit appellate review under MCL 769.34(10) when the imposed
minimum sentence is within that increased guidelines range.

        We first hold that the issues posed by defendant are not properly before us. In the initial
appeal, defendant, in regard to sentencing, merely requested a Crosby remand pursuant to
Lockridge. He did not argue that the sentence was excessive, disproportionate, and
unreasonable, nor did defendant assert any issue concerning MCL 769.34(10) and the impact of
Lockridge on MCL 769.34(10). The remand was not for the purpose of resentencing, although
that was a possibility that could occur as a result of the remand. Instead, the remand was for the
trial court to determine whether it would have imposed a materially different sentence in light of
Lockridge and the now-advisory guidelines. The trial court answered in the negative, declining
to order resentencing. This did not open the door for defendant, on further appellate review, to
set forth a host of arguments challenging the length of the sentence that had not been previously
presented, but which could have been raised by defendant. Defendant’s arguments exceed the


2
  MCL 769.34(10) provides, in relevant part, that “[i]f a minimum sentence is within the
appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant’s sentence.” The Schrauben panel stated
that “Lockridge did not alter or diminish MCL 769.34(10).” Schrauben, 314 Mich App at 196 n
1. We do note that MCL 769.34(10) does not and cannot preclude constitutional appellate
challenges to a sentence, e.g., an argument that a sentence constitutes cruel and unusual
punishment. See People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008) (MCL
769.34[10]’s limitation on review does not apply to claims of constitutional error, but a sentence
within the guidelines range is presumptively proportionate, and a proportionate sentence is not
cruel or unusual punishment); see also People v Conley, 270 Mich App 301, 316; 715 NW2d 377
(2006) (“It is axiomatic that a statutory provision, such as MCL 769.34[10], cannot authorize
action in violation of the federal or state constitutions.”).
3
  In People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017), our Supreme Court held that
under the “reasonableness” standard set forth in Lockridge with respect to sentencing departures,
we are to determine whether the trial court abused its discretion by violating the principle of
proportionality enunciated in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).


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scope of the remand. See Int’l Business Machines Corp v Dep’t of Treasury, 316 Mich App 346,
352; 891 NW2d 880 (2016).

         Additionally, as indicated in footnote 2 of this opinion, an appellate challenge of a
sentence falling within the appropriate guidelines range can always be made on constitutional
grounds regardless of the limitations in MCL 769.34(10). While defendant appears to argue that
such review encompasses a presumption of proportionality that does not exist with review of a
sentencing departure, thereby remaining constitutionally infirm, we fail to see how this claimed
difference ultimately results in a deprivation of the Sixth Amendment fundamental right to a jury
trial as described in Lockridge.4 Indeed, the whole premise of defendant’s argument does not
speak to the length of the sentence imposed by a trial court, but rather it pertains to the extent and
parameters of appellate review of a sentence and differences therein depending on whether a
sentence is within or outside the guidelines range. Defendant has not convinced us that MCL
769.34(10) need be construed any differently than the manner expressed in our binding caselaw.
And nothing in Schrauben would indicate that MCL 769.34(10) can be employed to preclude
appellate review of a constitutionally-based challenge of a sentence within the guidelines.

        Finally, assuming that defendant’s arguments are properly before us and that he is
constitutionally entitled under the Sixth Amendment to have his sentence reviewed for
reasonableness and proportionality, absent any type of proportionality presumption, we simply
cannot conclude that the trial court abused its discretion in imposing the sentence, given the
horrific nature of the act of violence perpetrated against defendant’s wife, along with defendant’s
extensive criminal history. The sentence was proportional to the offense and the offender.

       Affirmed.


                                                              /s/ William B. Murphy
                                                              /s/ David H. Sawyer
                                                              /s/ Jane M. Beckering




4
  We do note that there is a distinction between “proportionality” as it relates to the constitutional
protection against cruel or unusual punishment, with such proportionality being presumed when
a sentence is within the guidelines range, and “proportionality” as it relates to reasonableness
review of a sentence, which is not constitutional in nature. See People v Bullock, 440 Mich 15,
34 n 17; 485 NW2d 866 (1992) (“Because the similarity in terminology may create confusion,
we note that the constitutional concept of ‘proportionality’ under Const 1963, art 1, § 16 [cruel
or unusual punishment prohibition] is distinct from the nonconstitutional ‘principle of
proportionality’ discussed in People v Milbourn, 435 Mich 630, 650; 461 NW2d 1 [1990],
although the concepts share common roots.”).


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