                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 12, 2017
                Plaintiff-Appellant,

v                                                                    No. 333738
                                                                     Wayne Circuit Court
KELWIN DWAYNE EDWARDS,                                               LC No. 13-000329-01-FC

                Defendant-Appellee.


Before: SHAPIRO, P.J., and HOEKSTRA and M. J. KELLY, JJ.

PER CURIAM.

         This appeal arises following a Crosby1 remand from our Supreme Court2 that resulted in
the trial court resentencing defendant, Kelwin Edwards. Edwards was convicted by a jury of
assault with intent to commit murder, MCL 750.83, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Originally, the trial court sentenced
Edwards to 51 months to 11 years’ imprisonment for his assault with intent to murder conviction
and two years’ imprisonment for his felony-firearm conviction. Following the Crosby remand,
the trial court resentenced Edwards to 1 to 15 years’ imprisonment for his assault with intent to
commit murder conviction and two years’ imprisonment for his felony-firearm conviction. The
prosecution now appeals by right. Because the trial court abused its discretion by imposing a
disproportionate sentence, we reverse and remand for resentencing.

                                I. OFFENSE VARIABLE (OV) 6

                                  A. STANDARD OF REVIEW

        The prosecution first argues that the trial court erred by scoring OV 6 at ten points.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence. Whether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).
2
    People v Edwards, 498 Mich 903 (2015).


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the facts to the law, is a question of statutory interpretation, which an appellate court reviews de
novo.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

                                         B. ANALYSIS

        OV 6 addresses a defendant’s intent to kill or injure another individual. MCL 777.36(1).
Here, the prosecution contends that the trial court should have assessed either 50 points—which
must be assessed if “[t]he offender had premeditated intent to kill . . .”—or the court should have
assessed 25 points—which must be assessed if “[t]he offender had unpremeditated intent to kill,
the intent to do great bodily harm, or created a very high risk of death or great bodily harm
knowing that death or great bodily harm was the probable result.” MCL 777.36(1)(a) and (b).
The court, however, only assessed ten points, which is required when “[t]he offender had intent
to injure or the killing was committed in an extreme emotional state caused by an adequate
provocation and before a reasonable amount of time elapsed for the offender to calm or there was
gross negligence amounting to an unreasonable disregard for life.” MCL 777.36(1)(c)

        The prosecution argues that the court was required to score OV 6 at 50 or 25 points
because it was required to score OV 6 “consistent with a jury verdict unless the judge has
information that was not presented to the jury.” MCL 777.36(2)(a). Edwards was convicted of
assault with intent to commit murder, which required the prosecution to prove: (1) an assault, (2)
with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v
Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011) (citation and quotation marks omitted).
Therefore, because the jury convicted Edwards of assault with intent to murder, the jury found
that he had the specific intent to kill. Nevertheless, although the jury found that Edwards had
intent to kill, the trial court determined that it had additional information that justified scoring
OV 6 at ten points. The record reflects that unlike the jury, the trial court heard evidence that
Edwards had posttraumatic stress disorder (PTSD) related to an injury he received when he was
shot in the head less than a year prior to this incident. The court also heard testimony from
Edwards that he was very anxious near the time of the incident because the person who shot him
was still in his neighborhood and had not yet been caught. When scoring OV 6 at resentencing,
the court stated that it was basing the score on conversations it had with the lawyers before and
during trial about Edwards’s head injury. The trial court also stated:

       [A] person who has been previously shot is apt to try and protect themselves in
       the future in any way that they can. So I think that [] plays on a person’s true
       intent. Is the person intending to just callously hurt or kill somebody else? Or is
       the person being more influenced by a prior experience, a personal experience.

                                              * * *

       I don’t think that this defendant ever wanted to seriously injury or kill anyone. I
       think that it was primarily because of his prior experience of being shot in the
       head with a gun that caused him to react.




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Additionally, during resentencing, after it scored OV 6, the court noted that it “may have
information that the jury does not have.” Therefore, based on this record, the trial court did not
clearly err by scoring OV 6 at 10 points despite the fact that the jury found Edwards had the
specific intent to kill. See MCL 777.36(2)(a).

                               II. UNREASONABLE SENTENCE

         The prosecution next argues that Edwards’s sentence is unreasonable because it does not
reflect the seriousness of the offense and because the mitigating factors that the trial court used to
justify the departure were already factored into Edwards’s sentencing guidelines. We review for
reasonableness a trial court’s decision to depart from the applicable sentencing guidelines range.
People v Lockridge, 498 Mich 358, 365; 870 NW2d 502 (2015). When reviewing a departure
sentence for reasonableness, we must review “whether the trial court abused its discretion by
violating the principle of proportionality set forth” in People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990). People v Steanhouse, ___ Mich ___; ___ NW2d ___ (2017) (Docket Nos.
152671, 152849, 152871, 152872, 152873, 152946, 152947, and 152948); slip op at 20. A trial
court abuses its discretion if it violates the principle of proportionality test or if it fails “to
provide adequate reasons for the extent of the departure sentence imposed . . . .” Id. at ___; slip
op at 19. In such cases, this Court must remand to the trial court for resentencing. Id.

                                          B. ANALYSIS

        The principle of proportionality standard set forth in Milbourn “requires a sentence ‘to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.’
” People v Masroor, 313 Mich App 358, 374; 880 NW2d 812 (2015), quoting Milbourn, 435
Mich at 636, rev’d in part on other grounds by Steanhouse, ___ Mich at ___ (emphasis added).
In Masroor, this Court explained that “Milbourn instructs that departure sentences ‘are
appropriate where the guidelines do not adequately account for important factors legitimately
considered at sentencing’ so that the sentence range calculated under the guidelines ‘is
disproportionate, in either direction, to the seriousness of the crime.’ ” Id. at 374, quoting
Milbourn, 435 Mich at 657. In addition, “[t]he extent of the departure must also satisfy the
principle of proportionality.” Id., quoting Milbourn, 435 at 660. 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
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [People v Lawhorn, ___ Mich App ___, ___; ___
       NW2d ___ (2017) (Docket No. 330878); slip op at 7 (citation and quotation
       marks omitted).]

        In this case, the court departed downward from a minimum of 51 months to a minimum
of 12 months. The departure sentence, therefore, represents a sentence that is about 76.4% lower
than the sentence Edwards’s would have received under the guidelines.




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        When imposing that sentence, however, the court focused exclusively on the
circumstances of the offender and failed to also consider the circumstances of the offense,
including the seriousness of the offense. As found by the trial court, the record reflects that
Edwards was remorseful for his actions, that he did not have an extensive or violent criminal
record, and that, because of his PTSD, he may have not actually intended to seriously kill or
injure anyone. Edwards’s criminal history, however, was already accounted for by the
guidelines, and the court did not find that it was given excessive or inadequate weight in the
guidelines. Moreover, Edwards’s apparent lack of intent to seriously injure or kill because of his
mental state was also accounted for by the guidelines—specifically OV 6—and again, the trial
court did not find that the guidelines gave it excessive or inadequate weight. Because those facts
were already accounted for by the guidelines and no reasons were stated as to why the weight
they were afforded in the guidelines was inadequate, we cannot deem those reasons adequate to
support the extent of the departure sentence imposed in this case. Further, the court’s reasons do
not account for the seriousness of the offense. It is axiomatic that assault with the intent to
commit murder is a very serious offense. The trial testimony reflects that because of an
argument about a parking space, Edwards fired five or six shots at an unarmed victim, striking
him once in the abdomen and twice in his lower extremities. Given Edwards’s actions, this case
could have easily ended with the victim’s death. We conclude that, in the absence of further
explanation by the trial court on all relevant factors, the court’s drastic departure from the
guidelines was not proportionate to both the circumstances of the offender and the offense, and
thus, the sentence imposed by the trial court was not reasonable.

       Reversed and remanded for resentencing. We do not retain jurisdiction.

                                                            /s/ Douglas B. Shapiro
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Michael J. Kelly




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