                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 12, 2017
               Plaintiff-Appellee,

v                                                                   No. 333722
                                                                    Monroe Circuit Court
JERMAINE TERRELL JACKSON,                                           LC No. 15-242179-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

        A jury acquitted defendant of assault with intent to murder but convicted him of the
lesser included offense of assault with intent to do great bodily harm less than murder, MCL
750.84, for shooting Demetrius Davis at a party in Bedford Township. The trial court departed
upward from the sentencing guidelines and sentenced defendant to 72 to 120 months’
imprisonment. The court failed to adequately support this departure. Accordingly, we vacate
defendant’s sentence and remand for resentencing.

                                       I. BACKGROUND

         In July 2015, defendant travelled from his Toledo home to Bedford Township with a
group of three friends to attend the birthday party of Demetrius Davis. Defendant bought and
used marijuana at the party. He also consumed a large amount of alcohol. Defendant’s friends
testified that he then became combative, tried starting fights with several individuals, and acted
paranoid.

        Defendant claimed that about a week before the party, he was attacked in his
neighborhood. As a result, he began carrying a weapon for protection. When the group arrived
at the party, defendant left his gun in his friend’s car. After becoming intoxicated, defendant was
nervous and asked his friend to let him into the car to get his gun. Defendant’s friend, concerned
about defendant’s behavior, had hidden the gun. As defendant became more belligerent and
combative, the friend gave up, handed the gun to defendant and left the party.

       Defendant’s ex-girlfriend was in attendance at the party and was with defendant after he
took possession of his gun. Defendant started making threatening comments about using the
gun. The ex-girlfriend warned everyone to avoid defendant. Davis decided to ask defendant to


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leave his party. Five to six other men followed him outside.              The details of Davis’s
confrontation with defendant vary from witness to witness, but the broad strokes are mostly the
same: (1) Davis approached defendant and asked him to leave; (2) defendant took out his gun
and fired, (3) Davis was shot twice, and (3) defendant fled the scene on foot. Defendant claimed
that the “mob” threatened him and he shot in self-defense. No other witness corroborated this
story. Defendant’s shots hit only Davis; he was hospitalized for 11 days, required surgery, and
still has not gained full use of his injured arm.

                                        II. SENTENCING

       After scoring defendant’s offense and prior record variables, his minimum sentencing
guidelines range was calculated at 34 to 67 months. The trial court deemed this sentence
inadequate and departed upward by five months, sentencing defendant to 72 to 120 months’
imprisonment. The trial court justified its decision as follows:

       I have gone through the report several times, I’ve gone through the guideline
       scorings several times, and now at least by court order, we are solidified on the
       guideline scorings of 34 to 67 months on the minimum. There is a maximum
       penalty in this case of 120 months, which is tantamount to [10] years, for lack of
       better word.

              The Court also sat through the trial testimony. I agree largely [with] a lot
       of what the prosecutor says[.] [I]t could be so simple for me just to accept the
       [prosecutor’s] argument and go along with 80 months in this case. I agree too,
       and we all know it, guideline scoring is no longer mandatory, they are advisory,
       the Court must take these into account when fashioning its sentences, and I have
       done so.

                I agree that this type of offense is beyond the pale of the ordinary criminal
       offense that comes here. This is a very troubling offense, to commit the crime of
       Assault With Intent to do Great Bodily Harm Less than Murder and the Court is
       cognizance [sic] of the fact that this is what the jury came back with, but the
       original charge was Assault With Intent to Murder. And what the Court heard
       through the testimony, and I understand it, [defense counsel], this was your
       argument that your client came from, and I think your words were, a territory not
       here in Michigan but what you referred to as the hood, and that you needed
       firearms and this and that for protection perhaps for all the violence that went on
       where he came from. But he came to this community and he’s going to . . . a
       party, which is what the testimony was. And what I am so troubled with is why
       this defendant before he even ingested whatever he ingested as the party, why he
       brought a gun in the first place. It is beyond my comprehension why he did that
       in the first place.

               He came to this party with the full intent to bring that firearm and to do
       something with it, in my opinion. [I] just still don’t understand it, even his friends
       tried to get this firearm away from him. There was nothing really going on at the
       party before he went outside and started acting the way he did to where a firearm


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       became I guess material in this case. And then it was his actions that brought this
       about. That’s what does not [sit] well with this Court.

                And, you know, the jury obviously found basically the same thing. But I
       just still can’t figure out why he brought it in the first place, he had no reason to
       believe that anything was going to happen at this party, unless it was to deal with
       the situation with his former girlfriend.

               So, I’ve taken all of this into account, all of the testimony, all of the
       findings of the jury, I find this to be a fair and proportionate sentence, it is for the
       protection of society. This is a more than reasonable sentence. It is an upward
       departure from the guidelines, which I think is proper in this case even though
       they are no longer mandatory, they are advisory, but it’s not to the level of what
       the prosecutor has sought.

                . . . I am going to sentence [defendant] to serve 72 months to 120 months
       in state prison, Michigan Department of Corrections.


       Defendant challenges his departure sentence.

                                    III. LEGAL PRINCIPLES

        We review departure sentences 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.” People v Steanhouse,
500 Mich 453, 471; ___ NW2d ___ (2017). In determining whether a trial court abused its
discretion by unreasonably departing from the sentencing guidelines, we review whether the
court conformed to the principle of proportionality set forth in People v Milbourn, 435 Mich 630;
461 NW2d 1 (1990). Steanhouse, 500 Mich at 476-477.

       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.”

       Under this principle, “ ‘the 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.’ ” [People v Dixon-Bey, ___ Mich App ___; ___ NW2d
       ___ (Docket No. 331499, issued September 26, 2017), slip op at 16, quoting
       Steanhouse, 500 Mich at 472, quoting Milbourn, 435 Mich at 651, 661.]




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        In Milbourn, 435 Mich at 635, the Supreme Court held that the sentencing guidelines
were designed with the “principle of proportionality” in mind, to impose punishment “relative [to
the] seriousness and severity of individual criminal offenses.” The Legislature already
considered the seriousness of the various criminal offenses and the danger imposed by
recidivism in creating the guidelines and “intended more serious commissions of a given crime
by persons with a history of criminal behavior to receive harsher sentences than relatively less
serious breaches of the same penal statute by first-time offenders.” Id. Judges veering from the
statutory guidelines must exercise their discretion “according to the same principle of
proportionality,” id. at 635-636, and impose a sentence that is proportionate to the seriousness of
the particular offense and the particular offender. Steanhouse, 500 Mich at 474. To this end,
trial courts may depart from the guidelines “when, in their judgment, the recommended range
under the guidelines is disproportionate, in either direction, to the seriousness of the crime.”
Milbourn, 435 Mich at 657. The guidelines are “a useful tool,” but departure sentences are
“appropriate where the guidelines do not adequately account for important factors legitimately
considered at sentencing.” Id. at 657-658 (emphasis added).

       In application, the Milbourn Court found that “departures from the guidelines,
unsupported by reasons not adequately reflected in the guidelines variables, should . . . alert the
appellate court to the possibility of a misclassification of the seriousness of a given crime by a
given offender and a misuse of the . . . sentencing scheme.” Id. at 659. The Court explained:

       Where there is a departure from the sentencing guidelines, an appellate court’s
       first inquiry should be whether the case involves circumstances that are not
       adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. Even where some departure appears to be appropriate, the
       extent of the departure (rather than the fact of the departure itself) may embody a
       violation of the principle of proportionality. . . . [Milbourn, 435 Mich at 659-660
       (emphasis added).]

        In People v Smith, 482 Mich 292; 754 NW2d 284 (2008), the Supreme Court described a
practical application of the principle of proportionality. The Smith Court required a trial court to
rationalize and articulate why the specific departure sentence imposed was proportionate to the
offense and the offender. Id. The Court explained that a departure cannot be based “on an
offense characteristic or offender characteristic already taken into account in determining the
appropriate sentence range unless the court finds from the facts contained in the court record,
including the presentence investigation report, that the characteristic has been given inadequate
or disproportionate weight.” Id. at 300, quoting MCL 769.34(3)(b) (emphasis added).

       Although dealing with statutory language in MCL 769.34 that is no longer applicable due
to Lockridge, 498 Mich at 391 (regarding substitution of the words “may” for “shall”), the Smith
Court’s methodology to effectuate the principle of proportionality remains relevant. Addressing
appellate review of departure sentences, the Smith Court stated:




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        Appellate courts are obliged to review the trial court’s determination that a . . .
        reason exists for departure. Accordingly, the trial court’s justification “must be
        sufficient to allow for effective appellate review.” In [People v Babcock, 469
        Mich 247, 258-259; 666 NW2d 231 (2003)], this Court explained that an
        appellate court cannot conclude that a particular . . . reason for departure existed
        when the trial court failed to articulate that reason. Similarly, if it is unclear why
        the trial court made a particular departure, an appellate court cannot substitute its
        own judgment about why the departure was justified. A sentence cannot be
        upheld when the connection between the reasons given for departure and the
        extent of the departure is unclear. When departing, the trial court must explain
        why the sentence imposed is more proportionate than a sentence within the
        guidelines recommendation would have been. [Smith, 482 Mich at 304 (citations
        omitted).]

         Also identified as assisting appellate review of the proportionality of a departure sentence
is “when a court explains the similarity between the facts justifying the departure and the facts
describing a crime meriting the same sentence under the guidelines. A comparison of a
defendant’s characteristics and those of a hypothetical defendant whose recommended sentence
is comparable to the departure sentence is a valuable exercise.” Id. at 310. In this vein, a
“potential means of offering . . . a justification [for a departure] is to place the specific facts of a
defendant’s crimes in the sentencing grid.” Id. at 306. The Court reasoned that “reference to the
grid can be helpful, because it provides objective factual guideposts that can assist sentencing
courts to ensure that the offenders with similar offense and offender characteristics receive
substantially similar sentences,” id. at 309 (quotation marks and citation omitted), and thus
“minimize idiosyncrasies” in sentencing. Id. at 311. However, courts are not required to
“sentence defendants with mathematical certainty” and “precise words [are not] necessary . . . to
justify a particular departure.” Id.

        A common thread in the line of sentencing cases both before and after Lockridge is that a
court may not depart from the sentencing guidelines based on factors already taken into account
under the guidelines except under specific circumstances. In determining whether the chosen
departure sentence is more proportionate than a guidelines sentence, relevant considerations
include: “(1) whether the guidelines accurately reflect the seriousness of the crime, . . . (2)
factors not considered by the guidelines, . . . and (3) factors considered by the guidelines but
given inadequate weight.” Dixon-Bey, ___ Mich App at ___; slip op at 18-19 (citations omitted).

                                           IV. ANALYSIS

         The trial court’s reasons for departing from defendant’s minimum sentencing guidelines
range boil down to the following: (1) defendant committed a serious criminal offense, assault
with intent to do great bodily harm less than murder (2) by bringing a gun to a party (3) with the
intent to use the gun at the party. The court also took little stock in defendant’s claim that he
needed the gun for protection, given the relative safety of Bedford Township compared to
defendant’s home neighborhood. The fundamental problem with the court’s reasoning is that its
justifications for the departure are entirely encapsulated by the guidelines, and it did not explain
why the guidelines inadequately accounted for defendant’s conduct.



                                                  -5-
        The guidelines as a whole already take into account the seriousness of the crime. The
guidelines classify the type of crime by its maximum punishment. Assault with intent to do great
bodily harm is a class D offense with a default maximum statutory punishment of 10 years’
imprisonment. MCL 777.16d. Once classified, the guidelines provide a specific sentencing grid
for that class of crime. See MCL 777.65 (providing the minimum sentencing range for class D
offenses). Thus, the structure of the guidelines already takes into account the seriousness of the
crime. See Smith, 482 Mich at 311 n 42 (explaining that a departure cannot be based solely on
the heinousness of a particular type of crime because “the Legislature did not overlook this basic
fact when establishing sentencing guidelines for [those] crimes”).

        Defendant’s use of a firearm was taken into account in scoring OVs 1 and 2. MCL
777.31(1)(a) provides for the assessment of 25 points when a defendant discharges a firearm at a
person. OV 2 gauges to the “lethal potential” of the weapon used. As defendant fired a pistol,
the court assessed 5 points pursuant to MCL 777.32(1)(d). The Legislature clearly laid out a
variety of situations involving the use of weapons and categorized them according to their
severity. And the trial court did not explain why OVs 1 and 2 were inadequate to cover
defendant’s decision to bring a firearm to the party and then to use it.

        The seriousness of a particular crime is taken into account in OVs 3 and 4, which
measure the level of harm experienced by the victim. Points are assessed for OV 3 when a
victim is physically injured. Davis was hit by two bullets, one near his hip and one in his arm,
and at least one of the bullets fragmented within his body. As a result, Davis was hospitalized
for 11 days, during which he required surgery and chest tubes. Davis also has yet to regain full
use of the hand connected to his wounded arm. Defendant was assessed 25 points, the maximum
number of points applicable for the infliction of nonlethal injuries. MCL 777.33(1)(c). OV 4
measures the “psychological injury to a victim.” Because defendant caused Davis significant
physical harm, the trial court found it likely that Davis suffered the requisite psychological harm
to trigger OV 4 and assessed the maximum number of points allowable—10. MCL
777.34(1)(a).1 Again, the trial court made no consideration of whether OVs 3 and 4 adequately
measured the seriousness of defendant’s offense.

        Similarly, a defendant is assessed higher points under OV 9 when a larger number of
victims are placed in danger. This takes into account both the seriousness of the crime and the
impact of defendant’s decision to bring a gun to a party. MCL 777.39(1)(c) provides for the
assessment of 10 points when the defendant places two to nine victims “in danger of physical
injury or death.” Defendant earned this score by shooting into the “mob,” consisting of
approximately seven people. Because OV 9 covers situations where multiple individuals are
exposed to danger, it would cover crimes that take place at a party. Once again, the court failed
to explain how OV 9 did not adequately cover this situation.




1
 We question the validity of the court’s score for OV 4 as there is no record evidence that Davis
actually suffered a psychological injury requiring professional treatment. See MCL 777.34(2).
Defendant has not challenged this score, however.



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        OV 6, which is scored for the intent to kill or injure another, would cover defendant’s
decision to bring a gun to a party with the intent to use it. Under OV 6, a trial court may assess
points for the “offender’s intent to kill or injure another individual.” MCL 777.36(1). However,
the trial court could not score OV 6 because points are only assessed for crimes involving
homicide or intent to commit homicide. MCL 777.22(1) (directing the trial court to only score
OV 6 for “homicide, attempted homicide, conspiracy or solicitation to commit a homicide, or
assault with intent to commit murder”); MCL 777.1(c) (defining “homicide” to mean “any crime
in which the death of a human being is an element of that crime”). The Legislature thereby
deemed the intent to injure less relevant where the defendant did not intend to cause death. The
jury considered the evidence and acquitted defendant of the greater charge of assault with intent
to murder. The trial court was required by the statute to score OV 6 consistent with the jury
verdict “unless the judge has information that was not presented to the jury.” MCL 777.36(2)(a).
As there is no record indication that the trial court had information beyond that provided to the
jury, the court was required to score zero points. And the court made no reference to OV 6 when
deciding to depart from the guidelines.

        Ultimately, the seriousness of defendant’s crime was taken into account in the structure
of the legislative sentencing guidelines. The seriousness of this particular offense and the
culpability of this particular offender were taken into account in several of the offense variables.
The trial court made no reference to the variables when imposing an upward departure sentence
and therefore did not meet its burden of explaining why the guidelines gave inadequate weight to
the facts of this case. “[I]f it is unclear why the trial court made a particular departure, an
appellate court cannot substitute its own judgment about why the departure was justified.”
Smith, 482 Mich at 304. Nor can this Court “supplement the trial court’s reasoning where it
failed to give an explanation.” Dixon-Bey, ___ Mich App at ___; slip op at 21. We must
therefore vacate defendant’s departure sentence and remand for resentencing. 2

        We vacate defendant’s sentence and remand for resentencing.             We do not retain
jurisdiction.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Michael F. Gadola
                                                             /s/ Colleen A. O'Brien




2
  Although not properly presented as a separate issue for review by this Court, defendant
contends that the trial court improperly scored PRV 2. PRV 2 measures the number of prior low
severity felonies a defendant has amassed. MCL 777.52. Defendant has no prior adult criminal
record. Accordingly, the court should not have scored PRV 2. Defendant may raise this issue at
resentencing for correction.



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