                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 7, 2017
               Plaintiff-Appellee,

v                                                                    No. 334876
                                                                     Wayne Circuit Court
SHAWN MARIE LAVASSEUR,                                               LC No. 16-003059-01-FH

               Defendant-Appellant.


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

PER CURIAM.

        Following a bench trial, the trial court convicted defendant of possession with intent to
pass as true five or more pieces of counterfeit coin, MCL 750.260. Defendant’s conviction was
based on the discovery of 11 counterfeit $20 bills in her purse after using four counterfeit bills to
make a retail purchase on February 10, 2016. The court departed from the minimum sentencing
guidelines range of 0 to 9 months to impose a sentence of 1½ to 10 years’ imprisonment. We
affirm that sentence.

                                        I. BACKGROUND

         Before imposing an upwardly departing sentence, the trial court noted, “So it’s zero to
nine, . . . which is astounding when you stop to think that counterfeiting is a life offense although
it’s an E grid crime, and when you look at her appalling history of thievery. But anyway, they
are what they are.” Following defendant’s plea for leniency, the court cited her recent criminal
history of three retail fraud offenses, stating, “[T]hat’s a very compelling allocution. I’m
guessing from looking at your criminal history that you’ve made virtually the same pitch to at
least three other judges in the last year. . . .” Defendant’s criminal history included shoplifting
offenses in July, August, and September 2015, all of which resulted in the imposition of 12
months of probation. Defendant was “ramping up the seriousness of [her] crimes” by jumping to
counterfeiting. Defendant’s history demonstrated that probation “doesn’t help,” “doesn’t seem
to have any affect or impact on you at all.” The court continued, “ You’re absolutely in total
denial about the fact that you’re a serial thief. And incredibly dishonest. Fundamentally and
incredibly dishonest, and probation doesn’t help.” In this case, the court determined that the
guidelines provided “very flawed advice” on the proper sentence. Accordingly, the court
decided to depart upward from the sentencing guidelines range of 0 to 9 months so it could
impose a prison sentence.

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                                         II. ANALYSIS

        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.]

        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.

       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:




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        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.]

        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).

       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:

        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

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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.

       Additional factors recognized post-Lockridge for consideration under the “proportionality
standard” have been found to include, but are not limited to:

       (1) the seriousness of the offense . . ., (2) factors that were inadequately
       considered by the guidelines . . ., (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 Walden, 319 Mich App
       344, 352-353; 901 NW2d 142 (2017) (citation omitted), lv pending.]

        In this case, the trial court justified the reasonableness of the particular upward departure
sentence it imposed. Through its record comments, the court suggested that defendant’s prior
criminal offenses, committed recently and in quick succession, were not given adequate weight
under the prior record variables. Defendant was still on probation for those offenses when she
committed her current crime. This was evidence that probation was not a severe enough penalty
to convince defendant to conform her behavior to social mores. Indeed, instead of working to
remain crime-free, the court accurately noted that defendant had “ramp[ed] up” her level of
criminal enterprise. The court also emphasized the serious nature of defendant’s offense
category—counterfeiting—noting that the offense could come with a life sentence. A sentence
within the guidelines range of 0 to 9 months could only be served in jail. The court specifically
determined that defendant required prison time under the circumstances of this case to encourage
her rehabilitation.

        The trial court adequately explained why the particular departure sentence imposed was
reasonable and was proportionate to this offender for this offense. The court therefore did not
abuse its discretion in departing from the guidelines.

       We affirm.



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




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