                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  March 17, 2016
              Plaintiff-Appellant,

v                                                                 No. 325651
                                                                  Wayne Circuit Court
TIMOTHY JOSEPH KANE,                                              LC No. 14-002339 FH

              Defendant-Appellee.


Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of conspiracy to commit a criminal
enterprise, MCL 750.159i, conspiracy to use a computer to commit a 20-year felony,
MCL.752.797(3)(f), uttering and publishing (two counts), MCL 750.249, and embezzlement
between $1,000 and $20,000 from a charitable organization (two counts), MCL 750.174(5)(c).
He was sentenced, on all counts, to five years’ probation with 12 months of jail time; the jail
time to be served two separate months per year during the probation period plus an additional
two months’ jail time, to be served on weekends as determined by the probation department.
The prosecutor now appeals as of right the trial court’s downward departure from the sentencing
guidelines minimum range of 36 to 60 months’ imprisonment. We remand for further
proceedings consistent with this opinion.

       Recently, our Supreme Court significantly altered the standards for sentencing criminal
defendants in our state. In Alleyne v United States, 570 US___; 133 S Ct 2151, 2163; 186 L Ed
2d 314 (2013), the United States Supreme Court held that because “mandatory minimum
sentences increase the penalty for a crime,” any fact that increases the mandatory minimum is an
“element” that must “be submitted to the jury and found beyond a reasonable doubt.” In People
v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015), our Supreme Court held that
Michigan’s sentencing guidelines were constitutionally deficient under Alleyne because “the
guidelines require judicial fact-findings beyond facts admitted by the defendant or found by the
jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne.” To remedy
the constitutional violation, the Court severed MCL 769.34(2) to the extent that it makes the
sentencing guidelines, as scored based on facts beyond those admitted by the defendant or found
by the jury, mandatory. Id. The Court explained that a sentencing court must still score the


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guidelines to determine the applicable guidelines range, but a guidelines range calculated in
violation of Alleyne is now advisory only. Id. at 365.

       However, the Lockridge Court distinguished the treatment of sentences that depart from
the sentencing guidelines. The Court explained that where the “facts admitted by defendant or
found by the jury verdict were insufficient to assess the minimum number of OV points
necessary for the defendant’s score to fall in the cell of the sentencing grid under which he [] was
sentenced[,]” there was a violation of defendant’s Sixth Amendment rights. Id. at 395.
However, the Lockridge Court explained that defendants who received a departure sentence
could not establish plain error because the trial court did not rely on the minimum sentence
range. Id. at 394; see also People v Steanhouse, ___ Mich App ___, ____; ___ NW2d ___
(2015); slip op at 21 (Docket No. 318329). Rather, “a sentence that departs from the applicable
guidelines range will be reviewed by an appellate court for reasonableness.” Lockridge, 498
Mich at 392.

        In Steanhouse, this Court determined the appropriate procedure for considering the
reasonableness of a departure sentence. The Court ultimately adopted the principle of
proportionality standard articulated in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Under this standard, “a given sentence [could] be said to constitute an abuse of discretion if that
sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the
trial court to be proportionate to the seriousness of the circumstances surrounding the offense and
the offender.” Id. at 636. “As such, trial courts were required to impose a sentence that took
‘into account the nature of the offense and the background of the offender.’ ” Steanhouse, ___
Mich App at ___; slip op at 23, citing Milbourn, 435 Mich at 651.

         Factors previously considered by Michigan courts under the proportionality
         standard included, among others, (1) the seriousness of the offense; (2) 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; and (3)
         factors that were inadequately considered by the guidelines in a particular case.
         [Steanhouse, ___ Mich App at ___; slip op at 24 (citations omitted).]

Pursuant to Steanhouse, because the law and analysis for departure sentences has changed since
defendant’s sentencing, remand for a Crosby1 hearing is proper because “the trial court was
unaware of and not expressly bound by a reasonableness standard rooted here in the Milbourn
principle of proportionality.” Id. at ___; slip op at 25.

        Thus, we must remand the matter to the trial court to follow the Crosby procedure
outlined in Lockridge. Id. at ___; slip op 25. We note that usually a “defendant may elect to
forego resentencing by providing the trial court with prompt notice of his intention to do so” due
to the possibility that defendant may receive a more severe sentence on remand. People v Stokes,
___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 11-12 (Docket No. 321303).


1
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).


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However, here, we are presented with an appeal from the prosecutor, not defendant.
Accordingly, we conclude that it is the prosecution that may elect to forgo resentencing by
promptly notifying the trial court of its intent to do so. See Steanhouse, ___ Mich App at ___;
slip op at 25; see also Lockridge, 498 Mich at 398. If the trial court does not receive such notice
from the prosecution in a timely manner, the trial court should proceed directly to determining
whether the court would have imposed a materially different sentence but for the constitutional
error. Lockridge, 498 Mich at 397. “If the trial court determines that the answer to that question
is yes, the court shall order resentencing.” Id.

        To aid the trial court on remand, we note concern with the trial court’s decision and
reasoning at sentencing. Prior to Lockridge, the trial court was required to choose a sentence
within the guidelines range, unless there was a “substantial and compelling” reason for departing
from this range. People v Babcock, 469 Mich 247, 255-256; 666 NW2d 231 (2003). Our review
of the record reveals that the trial court did not base its downward departure on objective and
verifiable factors not considered or adequately weighed by the guidelines. Id. at 257-258.
Indeed, the trial court focused on impermissible factors such as defendant’s lack of prior criminal
record, the subjective opinion of the court that defendant was entitled to mercy for his crimes, the
good deeds defendant had done as a priest, biblical passages, defendant’s subjective motives and
intentions, the sentence given to a co-conspirator who pled guilty, and public opinion of
defendant. On remand, we caution the court to aptly apply the principle of proportionality
standard articulated in Milbourn. Indeed, defendant’s history of embezzling money for four
years from a charitable organization in collaboration with a convicted criminal and other
criminal elements in the community was a serious offense for which defendant was convicted by
a jury. Further, in view of the record and the trial court’s initial basis for downward departure,
we determine that a different judge should preside over the remand proceedings. See MCL
769.34(11).

       Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Stephen L. Borrello




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