            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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. 345000
                                                                   Hillsdale Circuit Court
BILLY JOE MULLINS,                                                 LC No. 18-424274-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        Defendant was convicted by a jury of resisting and obstructing an officer in the lawful
performance of his duties, MCL 750.81d(1). Defendant was sentenced as a fourth habitual
offender, MCL 769.12, to 5 to 15 years’ imprisonment. Defendant appeals as of right. We
affirm.

       On April 9, 2018, the Hillsdale Sheriff’s Office executed a search warrant at a residence
in Moscow Township. When police officers entered the residence, they saw defendant standing
near the kitchen and living room. Police officers gave defendant numerous verbal commands to
which defendant was noncompliant. Defendant had to be physically restrained, and attempted
multiple times to escape from the arresting officers. At trial, the jury found defendant guilty of
one count of resisting and obstructing, and not guilty of a second count. At sentencing, the trial
court noted that the advisory sentencing guidelines recommended a range of 5 to 46 months’
imprisonment, but the court imposed a longer sentence based on numerous factors that were not
considered by the guidelines.

        Defendant argues that the trial court abused its discretion when sentencing him because
the sentence imposed was not reasonable. Specifically, defendant argues that a 5 to 15 year
prison sentence for delaying before following the officers’ commands, and attempting to get up
when commanded to remain seated, is not a proportionate sentence. Further, defendant argues
that the trial court is required to explain why the sentence imposed was more proportionate than
the sentence range recommended by the guidelines.




                                               -1-
        “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). “[A] given sentence can be said to constitute an abuse of discretion if that
sentence violates the principle of proportionality, which requires sentences imposed by the trial
court to be proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).

       The trial court did not abuse its discretion because defendant’s sentence was reasonable,
as it was proportionate to the offense. In rendering the sentence, the trial court properly
considered factors not considered by the guidelines, and gave them adequate weight. Therefore,
defendant is not entitled to resentencing.

       “[A] guidelines minimum sentence range calculated in violation of Apprendi1 and
Alleyne2 is advisory only and that sentences that depart from that threshold are to be reviewed by
appellate courts for reasonableness.” People v Lockridge, 498 Mich 358, 365; 870 NW2d 502
(2015). A reasonable sentence is one that adheres to the principle of proportionality established
in Milbourn, 435 Mich at 636, and that standard is met when the seriousness of the
circumstances surrounding the offense and the offender are taken into account. Steanhouse, 500
Mich at 459-460.

          “Factors that may be considered by a trial court under the proportionality standard
include, but are not limited to: ‘(1) the seriousness of the offense; (2) factors that were
inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such
as . . . the defendant’s misconduct while in custody, the defendant’s expression of remorse, and
the defendant’s potential for rehabilitation.’ ” People v Walden, 319 Mich App 344, 352-353;
901 NW2d 142 (2017) (citation omitted).

       The trial court properly considered the recommended sentencing guideline range, and
ultimately decided to impose a longer sentence for defendant because of his history. When
sentencing defendant above the advisory guidelines, the trial court considered numerous factors,
including defendant’s criminal history, his pattern of misconduct with respect to police officers,
his misconduct while previously in custody, and his substance abuse history:

                 And now I have you on this charge of resisting/obstructing. The
         guidelines are five to 46 months, Mr. Mullins. I note on your record that here, sir,
         a lot of things that are not considered by the guidelines. As you are well aware,
         guidelines are advisory in nature. I looked at your criminal record. I’ve got 5-10-
         13 misdemeanors. This is felony number five. You’ve been in jail nine times;
         probation five times, prison twice. You violated probation alone five times. Five
         of your misdemeanors aren’t scored. You’ve got five alcohol/drug-related


1
    Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000).
2
    Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013).




                                                 -2-
       convictions. Assaultive nature–[resisting and obstructing] and assaultive nature,
       you have six prior convictions. This makes number seven.

               The repetitive nature of these crimes [is not] considered by the guidelines.
       You have 13–13 parole violations. You have two misconducts in prison. You
       have committed six misdemeanors and four felonies while on bond, probation or
       parole.

                You’ve got a long-term substance abuse problem for which you have done
       little or nothing. I take all of these factors into account that aren’t considered by
       the guidelines. I also take into account that I have full discretion under the
       Habitual Offender Act and I exercise based on your criminal record.

              [I]t is the sentence of this [c]ourt that you be committed to the Department
       of Corrections to be confined in such institutions as the Commission shall direct
       under the Code of Criminal Procedure, the Michigan Penal Code, and the
       Department of Corrections Act for a minimum term [of] five years and not to
       exceed 15 years.

        The trial court took into account the fact that defendant had a long-term substance abuse
problem for which he had done little or nothing about. Defendant failed on numerous occasions
to attend substance abuse treatment programs, has a history of daily use of marijuana and
methamphetamine, and has a history of occasional use of alcohol and cocaine.

        Lastly, the trial court observed that the repetitive nature of defendant’s crimes was not
considered by the guidelines, and added weight to defendant’s 13 parole violations, two
misconducts in prison, and the fact that defendant committed six misdemeanors and four felonies
while on bond, probation, or parole. In determining an appropriate sentence, these additional
objective factors were properly considered by the trial court with respect to the seriousness of the
circumstances surrounding the offense and the offender. Walden, 319 Mich App at 352-353;
Milbourn, 435 Mich at 636. Therefore, the trial court did not abuse its discretion when
sentencing defendant because the sentence was reasonable.

        We reject defendant’s one sentence argument, citing People v Dixon-Bey, 321 Mich App
490; 909 NW2d 458 (2017), that the trial court did not adequately explain why the sixty month
minimum was more proportionate than the recommended guideline sentence. It is not the duty
of this Court to formulate an argument on behalf of defendant. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “ ‘[T]he key test is
whether the sentence is proportionate to the seriousness of the matter, not whether it departs from
or adheres to the guidelines’ recommended range.’ ” Steanhouse, 500 Mich at 472, quoting
Milbourn, 435 Mich at 651. “When making this determination and sentencing a defendant, a
trial court must justify the sentence imposed in order to facilitate appellate review, which
includes an explanation of why the sentence imposed is more proportionate to the offense and
the offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525


                                                -3-
(quotation marks and citations omitted). The trial court adequately explained its reasoning
behind defendant’s sentence from the bench, including the various other factors that it took into
consideration. Therefore, defendant’s sentence was reasonable because it was proportionate to
the seriousness of the matter and the circumstances surrounding it, and the trial court did not
abuse its discretion.

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Patrick M. Meter
                                                           /s/ Karen M. Fort Hood




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