                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 21, 2018
                 Plaintiff-Appellee,

v                                                                    No. 336499
                                                                     Wayne Circuit Court
ALVIN ZARCHARY SAMUEL,                                               LC No. 16-006350-01-FC

                 Defendant-Appellant.


Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ.

SHAPIRO, J. (concurring/dissenting).

        I concur with the majority’s opinion rejecting defendant’s challenges to his convictions
and his claim that the trial court punished defendant for his refusal to admit guilt.

       I conclude, however, that we must remand this case for resentencing because the record
does not indicate that the sentencing judge took the sentencing guidelines into account or stated
the reasons the judge chose to depart from their recommendation. 1 At the outset of the
sentencing hearing, the guidelines were calculated at 126 to 210 months. Defense counsel
requested a sentence at the lower end of the guidelines, and reminded the court that this was
defendant’s first conviction and that he was 19 years old. The prosecution did not seek a
departure sentence. After the victim’s statement was read and defendant spoke, the sentencing
judge imposed a sentence of 19-40 years imprisonment. The 19-year minimum is equivalent to
228 months, i.e., 18 months longer than the highest sentence under the guidelines.

        The sentencing judge made no reference to the fact that the sentence imposed was a
departure from the guidelines nor even that it was considering the guidelines in imposing
sentence. Once the guidelines calculation was agreed to at the outset of the hearing, they were
not mentioned again by the court. In People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015), the Supreme Court held that the guidelines are advisory rather than mandatory, but noted
their continuing importance stating:




1
    The sentencing judge did not try the case, but there was no objection to him imposing sentence.



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       Sentencing courts must, however, continue to consult the applicable guidelines
       range and take it into account when imposing a sentence. Further, sentencing
       courts must justify the sentence imposed in order to facilitate appellate review.

See also, People v Steanhouse, 500 Mich 453, 474-475; 902 NW2d 327 (2017) (holding that the
advisory guidelines “remain a highly relevant consideration in a trial court’s exercise of
sentencing discretion”) (quotation marks and citations omitted).

        Although the majority attempts to construct a justification for the departure sentence, I
find no basis to do so in the absence of a statement from the sentencing judge that he intended to
depart from the guidelines and the reasons for doing so. It is for the trial court to set forth its
reasoning, not for us to do so after the fact. Before imposing sentence, the trial court stated its
view that the defendant is a sexual predator and that he had not yet accepted that his behavior is
abnormal. However, these were not offered as reasons to depart from the guidelines and they are
undoubtedly true of many sex offenders.

       Accordingly, I would remand for resentencing.



                                                            /s/ Douglas B. Shapiro




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