            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 19, 2019
               Plaintiff-Appellee,

v                                                                    No. 341504
                                                                     Manistee Circuit Court
SAMUEL DARNEL HARPER,                                                LC No. 17-004727-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and GLEICHER and BOONSTRA, JJ.

PER CURIAM.

       Following defendant’s jury trial conviction for cocaine possession, the trial court
departed upward from the recommended minimum sentencing guidelines range and sentenced
defendant to four to eight years’ imprisonment. This 14-month departure was proportionate
under the circumstances and we affirm.

                                       I. BACKGROUND

        Defendant was arrested as he walked down the street on suspicion that he had stolen
liquor from a grocery store. Defendant advised the arresting officers that he was carrying a crack
cocaine pipe in his pocket and they confiscated it. Later testing revealed trace amounts of
cocaine on the pipe.

        The prosecutor charged defendant with possession of less than 25 grams of cocaine.
Defendant was released on bond pending trial, but appeared for the final status conference
carrying “drug paraphernalia.” Against his attorney’s advice, defendant addressed the court and
stated, “[T]he reason I do what I want to do here in this county is because just four days ago I
just sold cocaine to [a former court employee] and I’m telling you in this courtroom that I did it.”
Defendant further informed the court that he was “not afraid to go to the penitentiary. I’ve been
there nine times.”

       The jury convicted defendant as charged. Before sentencing, the Department of
Corrections calculated defendant’s minimum sentencing guidelines range. Defendant’s Offense
Variable (OV) score of 0 placed in OV Level I and his Prior Record Variable (PRV) score of 105


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placed in him PRV Level F, the highest level possible. Defendant’s minimum sentencing
guidelines range was set at 2 to 17 months. As defendant had previously been convicted of
cocaine-related crimes, the court doubled the minimum guidelines range to 4 to 34 months
pursuant to MCL 333.7413.

        At sentencing, defendant acknowledged his long history of drug abuse. He requested a
term of incarceration followed by parole, convinced that he would not be able to stay clean while
on probation. The court remembered defendant’s pretrial confession to yet another drug crime
and recited defendant’s lengthy adult criminal history dating back to 1985. The PSIR listed eight
prior felony and 22 prior misdemeanor convictions. These included drug and theft offenses,
indecent exposure, lying to police, and domestic violence. The court agreed with defendant, “I
don’t think that you would be successful on probation. . . . You, on several occasions, have had
probation revoked and been sentenced to prison.” The court also cited defendant’s “long-term
extensive history of substance abuse issues” with intermittent periods of sobriety.

       The court sentenced defendant to four to eight years’ imprisonment, stating:

       Having considered the testimony I heard at trial, the jury’s verdict, your prior
       record, the [PRV] score of 105, the eight prior felony convictions, I’m simply of a
       mind that the guidelines, even doubled, are a good starting point, but they don’t
       do justice to your extensive adult criminal record and your refusal to abide by the
       laws of this state. . . .

                                             * * *

              The Court certainly is tasked with explaining why it believes the sentence
       imposed is proportionate to the crime committed: Recognizing that this was a
       residue-only case, I understand that the appellate courts may be asked to address
       the proportionality of this sentence.

               When I impose this sentence, really what I’m guided by is his extensive
       prior felony record and the multiple prior convictions for drug-related offenses,
       some of which include either delivery of cocaine or possession with intent to
       deliver cocaine, his statements here in court at the final status conference, and,
       really, a history that presents as a man 54-years of age, that he has no interest in
       stopping this type of behavior; so, that’s the reason for the sentence.

       Defendant now appeals his sentence.

                                         II. ANALYSIS

        We review departure sentences for reasonableness, People v Lockridge, 498 Mich 358,
392; 870 NW2d 502 (2015), and review a lower court’s determination that a particular sentence
is reasonable for an abuse of discretion. People v Steanhouse, 500 Mich 453, 471; 902 NW2d
327 (2017) (Steanhouse II). In determining whether a trial court abused its discretion by
unreasonably departing from the sentencing guidelines, we consider whether the court
conformed to the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990). Steanhouse II, 500 Mich at 476-477. In this regard, we must consider whether

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the trial court acted within its discretion by imposing a sentence that is proportionate to the
seriousness of the particular offense and the character of the particular offender. People v Dixon-
Bey, 321 Mich App 490, 521; 909 NW2d 458 (2017), oral argument gtd on the application 501
Mich 1066 (2018). Trial courts may depart “when, in their judgment, the recommended range
under the guidelines is disproportionate, in either direction, to the seriousness of the crime.”
Milbourn, 435 Mich at 657.

        The statutory guidelines are “a useful tool” in selecting a proportionate sentence as they
“embody the principle of proportionality.” Dixon-Bey, 321 Mich App at 524. But a departure
sentence may be “more proportionate” based on certain factors, such as “(1) whether the
guidelines accurately reflect the seriousness of the crime; (2) factors not considered by the
guidelines; and (3) factors considered by the guidelines, but given inadequate weight.” Id. at 525
(citations omitted). Factors not otherwise considered by the guidelines might include “the
defendant’s misconduct while in custody, the defendant’s expression of remorse, and the
defendant’s potential for rehabilitation.” People v Steanhouse, 313 Mich App 1, 46; 880 NW2d
297 (2015) (Steanhouse I), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017)
(citations omitted). Based on these various factors, the court must support not only its decision
to depart, but also the extent of the departure. Milbourn, 435 Mich at 660.

        In People v Smith, 482 Mich 292; 754 NW2d 284 (2008), the Supreme Court described a
practical application of the principle of proportionality. “[A] court may explain[] the similarity
between the facts justifying the departure and the facts describing a crime meriting the same
sentence under the guidelines. A comparison of a defendant’s characteristics and those of a
hypothetical defendant whose recommended sentence is comparable to the departure sentence is
a valuable exercise.” Id. at 310. In this vein, a “potential means of offering . . . a justification
[for a departure] is to place the specific facts of a defendant’s crimes in the sentencing grid.” Id.
at 306. The Court reasoned that “reference to the grid can be helpful, because it provides
objective factual guideposts that can assist sentencing courts to ensure that the offenders with
similar offense and offender characteristics receive substantially similar sentences,” id. at 309
(quotation marks and citation omitted), and thus “minimize idiosyncrasies” in sentencing. Id. at
311. However, courts are not required to “sentence defendants with mathematical certainty” and
“precise words [are not] necessary . . . to justify a particular departure.” Id.

        The trial court in this case aptly determined that defendant’s extensive criminal history
was not adequately considered in scoring the guidelines. Defendant’s PRV score of 105 points
was well above the 75 points necessary to place him in the highest PRV Level for his Class G
offense. Defendant was assessed 50 points for PRV 1, reflecting his two prior high severity
felony convictions, see MCL 777.51(1)(b), and was given the highest points allowable under
PRV 2—30—reflecting four or more prior low severity felonies, see MCL 77.52(1)(a).
Defendant’s two other low severity felony convictions could not increase his point total further,
although a score of 50 points would seem otherwise justifiable. Defendant was also assessed the
highest score possible for PRV 5, prior misdemeanor convictions. MCL 777.55(1)(a) provides
for an assessment of 20 points for 7 or more prior misdemeanors. Defendant had 22 prior
misdemeanor convictions, more than three times the number that could be counted under this
variable. A score of 60 points for PRV 5, therefore, would have been more suited to the
circumstances. Ultimately, if the trial court could have assessed points for the remainder of
defendant’s prior convictions, defendant’s total PRV score could have been more than double the

                                                -3-
75-point minimum required for placement in the highest PRV Level. This strongly supports that
the extent of defendant’s prior criminal history was not adequately reflected in the scoring of his
sentencing guidelines.

        The trial court also considered defendant’s behavior pending trial for the current cocaine-
possession offense. Defendant admitted in open court that he had recently committed an even
more serious offense by selling cocaine. Defendant’s failure to control his conduct while
awaiting trial was closely related to the court’s consideration of defendant’s chances for
rehabilitation. The court noted that defendant was 54 years old, had a long history of substance
abuse with only briefs respites of sobriety, admitted that probation would provide insufficient
supervision to curb his substance abuse, and demonstrated an unwillingness to be rehabilitated.

        In the end, the trial court’s 14-month upward departure was carefully selected to fit this
particular offender and this particular offense, being defendant’s ninth felony conviction overall.
Although the sentencing offense of possessing drug paraphernalia with only trace amounts of
cocaine seems rather trivial standing alone, we cannot conclude that the trial court abused its
discretion by departing in this case.

       We affirm.




                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Elizabeth L. Gleicher




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