            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 17, 2019
               Plaintiff-Appellee,

v                                                                   No. 343621
                                                                    Kent Circuit Court
DARRELL LAMAR JONES,                                                LC No. 17-004787-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

SWARTZLE, P.J. (dissenting).

       I respectfully dissent. As I see it, this is a “standards-driven” appeal. If defense counsel
had preserved the claim for appeal, then I might be inclined to agree with my colleagues’
otherwise well-reasoned opinion. But, defense counsel did not, and we are not tasked with
considering whether that failure was ineffective assistance of counsel.

         Rather, we are tasked with considering whether, under the plain-error standard of review,
the prosecutor’s comment in favor of a high-guidelines sentence rose to the level of a due-
process violation that affected defendant’s substantial rights. See People v Carines, 460 Mich
750, 763-764; 597 NW2d 130 (1999). Defendant has the burden of proving prejudice, i.e., “the
error affected the outcome of the lower court proceedings.” Id. at 763. Because defendant
bargained for and received a sentence within the properly scored sentencing-guidelines range, his
sentence was a reasonable one. Cf. People v Carpenter, 322 Mich App 523, 532; 912 NW2d
579 (2018) (explaining that an appellate court can review for reasonableness a departure
sentence, but cannot similarly review a properly scored guidelines sentence). And, because the
trial judge made quite clear on the record why he believed a minimum sentence of 25 years of
imprisonment was the appropriate sentence regardless of (i) the prosecutor’s comment about an
alleged other killing or (ii) even the guidelines range itself, defendant has not, in my opinion,
demonstrated prejudice sufficient to warrant vacating his sentence and remanding to a new
judge.

         Just as a prosecutor’s comments should not save a departure sentence when a trial judge
fails to provide a sufficient explanation, see People v Malone, unpublished per curiam opinion of



                                                -1-
the Court of Appeals, issued January 17, 2019 (Docket No. 333852), (SWARTZLE, J., dissenting)
at 2, a prosecutor’s comments should not undermine a within-guidelines sentence when a trial
judge provides a sufficient explanation, at least under our plain-error standard of review.

       For these reasons, I respectfully dissent.



                                                         /s/ Brock A. Swartzle




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