                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 12, 2018
               Plaintiff-Appellee,

v                                                                  No. 331986
                                                                   Berrien Circuit Court
IAN GUNTHER LUCKER,                                                LC No. 2015-015390-FH

               Defendant-Appellant.


Before: O'CONNELL, P.J., and K. F. KELLY and RIORDAN, JJ.

PER CURIAM.

       Defendant pled guilty to one count of possession of methamphetamine, MCL
333.7403(2)(b)(i), for which he was originally sentenced, as a second offense, MCL
333.7413(2), to 120 days’ jail time and two years’ probation. Defendant later pleaded guilty to
three counts of violating his probation, for which he was sentenced to 10 to 20 years’
imprisonment. Defendant then filed a delayed application for leave to appeal that sentence,
which this Court denied.1     Subsequently, defendant applied for leave to appeal this Court’s
order with our Supreme Court, which ordered that the application be held in abeyance pending
the outcome of appeals that “may resolve an issue in the present application for leave to appeal.”
People v Lucker, 887 NW2d 405 (2016). On July 24, 2017, the Court issued its opinion in
People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017) (Steanhouse II), and subsequently,
entered an order remanding the instant case to this Court “for consideration, as on leave granted,
of whether the defendant’s sentence is reasonable under the standard set forth in Steanhouse.”
People v Lucker, 501 Mich 875, 875-876; 901 NW2d 863 (2017). We now affirm.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

        Defendant was at a home that was under surveillance for a methamphetamine lab when
the police executed a search warrant. He was located in the basement where an active lab was
found with components and some processed methamphetamines. He unsuccessfully tried to
escape. Defendant admitted to police that he had used meth the day before.


1
 People v Lucker, unpublished order of the Court of Appeals, entered April 25, 2016 (Docket
No. 331986).


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        The trial court sentenced defendant to 120 days’ jail time and two years’ probation with
the condition that he must successfully complete the Kalamazoo Probation Enhancement
Program (KPEP) in Berrien County. Shortly after being released from jail, defendant violated
his probation by refusing to enter the KPEP and by committing first-degree home invasion and
assault by strangulation. As noted, defendant pled guilty to those probation violations and the
trial court sentenced him to 10 to 20 years’ imprisonment.

                                         II. SENTENCING

        Defendant now argues that he is entitled to resentencing because his sentence of 10 to 20
years’ imprisonment for possession of methamphetamines, which has a guidelines range of 0 to
17 months, imposed subsequent to his probation violation, is unreasonable and not proportionate
to his offense.

                   A. STANDARD OF REVIEW AND APPLICABLE LAW

       “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392: 870 NW2d 502
(2015). “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” Steanhouse II, 500 Mich at 471.

        “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate
courts may . . . take the degree of variance into account and consider the extent of a deviation
from the Guidelines. We reject, however, an appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines range.” Id. at 474. An abuse of
discretion occurs when a trial court violates the principle of proportionality or fails to “provide
adequate reasons for the extent of the departure sentence imposed.” Id. at 476.

        As noted, we review this issue for reasonableness. Lockridge, 498 Mich at 392. The
controlling standard of reasonableness is the principle of proportionality pursuant to Milbourn,
435 Mich at 636. See Steanhouse II, 500 Mich at 471-472. As this Court recently explained in
People v Dixon-Bey, 321 Mich App 490, 520-521; 909 NW2d 458 (2017):

       “A sentence that departs from the applicable guidelines range will be reviewed by
       an appellate court for reasonableness.” []Lockridge, 498 Mich [at 392]. “[T]he
       standard of review to be applied by appellate courts reviewing a sentence for
       reasonableness on appeal is an abuse of discretion. [Steanhouse II, 500 Mich at
       471.] In Steanhouse [II], the Michigan Supreme Court clarified that ‘the relevant
       question for appellate courts reviewing a sentence for reasonableness” is “whether
       the trial court abused its discretion by violating the principle of proportionality . . .
       .” [Id.] The principle of proportionality is one in which

               “a judge helps to fulfill the overall legislative scheme of criminal
               punishment by taking care to assure that the sentences imposed
               across the discretionary range are proportionate to the seriousness
               of the matters that come before the court for sentencing. In
               making this assessment, the judge, of course, must take into


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               account the nature of the offense and the background of the
               offender.” [Id. at 472, quoting []Milbourn, 435 Mich [at 651].]

       Under this principle, “ ‘[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 [II], 500 Mich at 472, quoting
       Milbourn, 435 Mich at 661.

        The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .”
Dixon-Bey, 321 Mich App at 524. The sentencing guidelines “ ‘provide objective factual
guideposts that can assist sentencing courts in ensuring that the offenders with similar offense
and offender characteristics receive substantially similar sentences.’ ” Id., quoting People v
Smith, 482 Mich 292, 309; 754 NW2d 284 (2008) (brackets omitted). The Michigan Supreme
Court has been clear that while the sentencing guidelines are now only advisory, they “remain a
highly relevant consideration in a trial court’s exercise of sentencing discretion . . . .” Lockridge,
498 Mich at 391. See also Steanhouse II, 500 Mich at 474-475. As this Court recently
explained:

       Because the guidelines embody the principle of proportionality and trial courts
       must consult them when sentencing, it follows that they continue to serve as a
       ‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing.
       Therefore, relevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)
       whether the guidelines accurately reflect the seriousness of the crime, People v
       Houston, 448 Mich 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
       Mich at 657, (2) factors not considered by the guidelines, Houston, 448 Mich at
       322-324, see also Milbourn, 435 Mich at 660, and (3) factors considered by the
       guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see also
       Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, 321 Mich App at 524-525.]

Other factors to consider “include the defendant’s misconduct while in custody, Houston, 448
Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for
rehabilitation, id.” Dixon-Bey, 321 Mich App at 525 n 9 (internal quotation marks omitted). The
“key test” applicable to sentencing is “whether the sentence is proportionate to the seriousness of
the matter . . . .” Milbourn, 435 Mich at 661 (emphasis added).

                                          B. ANALYSIS

        Defendant does not challenge the scoring of any offense variables (OVs) or prior record
variables (PRVs). Thus, the minimum guideline range for his possession of methamphetamine
conviction was for 0 to 17 months’ imprisonment. MCL777.65. For that conviction defendant
was sentenced to 10 to 20 years’, or 120 to 240 months’ imprisonment. That sentence was
therefore above the guideline range. MCL 777.65.

        The trial court considered multiple factors when sentencing defendant. The trial court
articulated that defendant had been convicted of approximately 38 different crimes in 10 years.
It also took into account that defendant engaged in serious felony behavior while on probation,

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failed to complete anything on probation, and blatantly refused to comply with community
resources. The trial court stated that the purpose of the sentence was “punishment, protection of
the community, deterrence, reformation and restitution.” The court also informed defendant that
for “11 years you’ve been victimizing our community, you can spend 10 years of it in prison
now paying for your past crimes.”

        “[T]he sentencing court is not precluded from considering events surrounding the
probation violation when sentencing the defendant on the original offense.” People v Hendrick,
472 Mich 555, 557; 697 NW2d 511 (2005). “[T]he sentencing guidelines apply to sentences
imposed after a probation violation and that acts giving rise to the probation violation may
constitute substantial and compelling reasons to depart from the guidelines.” Id. In this case,
defendant failed to successfully complete the KPEP in Berrien County and committed first-
degree home invasion and assault by strangulation. In fact, defendant refused to even enter the
program as instructed by the trial court and his probation officer, while knowing that the
consequences could be severe.

        Based on defendant’s history of total disregard for the law and legal system, his
engagement in new and violent criminal behavior, and his failure to comply with his probation
conditions, the sentence the trial court imposed was reasonable and “proportionate to the
seriousness of the matter.” The trial court did not abuse its discretion in its determination that a
prison sentence of 10 to 20 years was justified. Steanhouse II, 500 Mich at 471-472; Milbourn,
435 Mich at 661.

       Affirmed.

                                                             /s/ Peter D. O'Connell
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Michael J. Riordan




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