                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 1, 2018
               Plaintiff-Appellee,

v                                                                  No. 325627
                                                                   Wayne Circuit Court
FERNANDUS CORTEZ ELLEN,                                            14-003019-FC

               Defendant-Appellant.


                                         ON REMAND

Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

        On September 27, 2016, this Court issued an opinion affirming defendant’s “jury trial
conviction of voluntary manslaughter, MCL 750.321[,]” but remanding for further proceedings
regarding defendant’s sentence. People v Ellen, unpublished per curiam opinion of the Court of
Appeals, issued September 27, 2016 (Docket No. 325627), p 1. On October 31, 2017, our
Supreme Court reversed “the judgment of the Court of Appeals remanding this case to the trial
court for proportionality review and for a hearing pursuant to People v Lockridge, 498 Mich 358
(2015),” and remanded the case “to the Court of Appeals for plenary review of the defendant’s
sentencing claims, including that his sentence was disproportionate under the standard set forth
in People v Milbourn, 435 Mich 630, 636 (1990). See People v Steanhouse, 500 Mich [453,]
460-461 [(2017)].” People v Ellen, ___ Mich ___; 902 NW2d 612 (2017). We now vacate
defendant’s sentence and remand this matter to the trial court for resentencing.

        The issue here is whether the sentence imposed by the trial court, 10 to 15 years’
imprisonment, which departed from the minimum guideline range of 36 to 71 months’
imprisonment, is disproportionate. Defendant argues that all of the factors relied on by the trial
court for his sentencing departure already were accounted for by the sentencing guidelines, and
therefore are insufficient to warrant a departure from the range called for by the sentencing
guidelines.

       The controlling standard of reasonableness is the principle of proportionality pursuant to
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). See People v Steanhouse, 500
Mich 453, 471-472; 902 NW2d 327 (2017) (Steanhouse II). As this Court recently explained in



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People v Dixon-Bey, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 331499); slip
op at 16:

              “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 an abuse of discretion. [Steanhouse II, 500 Mich at 471.] In
              Steanhouse, 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 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. [Dixon-Bey, ___ Mich
              App at ___; slip op at 16.]

        The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .”
Id. at ___; slip op at 18. 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

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              guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see
              also Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, ___ Mich App at ___;
              slip op at 18-19.]

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, ___ Mich App at ___; slip op at 19 n 9, quoting People v
Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015) (Steanhouse I), rev’d 500 Mich 453
(2017). On remand, these are the factors that the trial court should employ when re-sentencing
the defendant.

         The “key test” applicable to sentencing is “whether the sentence is proportionate to the
seriousness of the matter . . . .” Milbourn, 435 Mich at 661 (emphasis supplied). It is quite clear
that the trial court found that the overall brutality of the crime, and the resultant severe injuries to
the victim, were the primary reasons a departure was warranted in this case. Defendant correctly
notes that the sentencing guidelines accounted for these concerns, at least to a certain extent.
The trial court assigned 10 points to OV 6 because, and as is reflected in the jury’s verdict,
defendant killed the victim while “in an extreme emotional state caused by an adequate
provocation and before a reasonable amount of time elapsed for the offender to calm . . . .” MCL
777.36(1)(c). The trial court assigned 50 points to OV 7, which considers “aggravated physical
abuse,” because it concluded the defendant treated the victim “with sadism, torture, excessive
brutality or similarly egregious conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense.” MCL 777.37(1)(a). The trial court assigned 25 points to
OV 3, which considers the physical injuries suffered by a victim, because defendant caused
“[l]ife threatening or permanent incapacitating injury” to the victim. MCL 777.33.1 The trial
court assigned 10 points to OV 1 because the victim was “touched by any other type of weapon.”
MCL 777.31(1)(d). In total, the trial court calculated 95 offense variable points in light of the
brutality of the defendant’s criminal activity.

         While the trial court may have articulated sufficient reasons for a sentencing departure, it
also had a duty to explain why the extent of the departure is warranted. People v Steanhouse (On
Remand), ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 318329) (Steanhouse
III); slip op at 5; Dixon-Bey, ___ Mich App at ___; slip op at 19. See also Smith, 482 Mich at
304 (a trial court “must explain why the sentence imposed is more proportionate than a sentence
within the guidelines recommendation would have been.”). On remand, should the trial court
choose to depart from the guideline range, it must articulate the reason(s) why the extent of the
particular sentence departure it chooses is warranted relative to the conduct already considered
by the sentencing guidelines.

      The trial court can do this, perhaps, by reference to the fact that this particular incident
may be at the most serious end of the spectrum of manslaughter cases and thus warrants the most


1
 This variable could not be scored at 100 points, which generally applies when a victim is killed,
because 100 points are only to be assigned to this variable if the sentencing offense is not a
homicide. MCL 777.33(2)(b); People v Houston, 473 Mich 399; 702 NW2d 530 (2005).


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severe sentence permitted. See Milbourn, 435 Mich at 653-654. It also may adequately explain
a departure by comparing the defendant’s acts to other crimes that would warrant a 10-year
minimum sentence under the sentencing guidelines. Smith, 482 Mich at 306. But, as an
appellate court, it is incumbent upon us to “avoid supplementing or otherwise justifying the trial
court’s otherwise insufficient reasoning with reasoning of [our] own.” Dixon-Bey, ___ Mich
App at ___; slip op at 22 n 11, citing Smith, 482 Mich at 304.

          Therefore, we vacate defendant’s sentence and remand this matter to the trial court for
resentencing. On remand, the trial court may impose a departure sentence, but should do so only
if it articulates reasons sufficiently justifying the extent of its chosen departure.

       We do not retain jurisdiction.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Riordan




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