                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 22, 2018
              Plaintiff-Appellee,

v                                                                  No. 336549
                                                                   Gladwin Circuit Court
ERIN KATHLEEN DENNIS,                                              LC No. 16-008410-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant pled guilty to delivery or manufacture of 50 to 499 grams of a controlled
substance, under MCL 333.7401(2)(a)(iii). She was sentenced to a prison term of 7 to 20 years. 1
Defendant appeals claiming that this sentence was unreasonable and that the trial court failed to
articulate reasons to show that the departure was proportional. For the reasons set forth below,
we vacate defendant’s sentence for delivery or manufacture of a controlled substance and
remand for resentencing.

        At her plea hearing, defendant admitted that on November 18, 2015, she drove her
accomplices to a pharmacy where they broke into the building and stole controlled substances,
including morphine. Defendant was acting as the lookout when her accomplices stole between
50 and 449 grams of the controlled substances with the intent to sell it. She also admitted that
prior to breaking in, she and her accomplices convened and planned the robbery. Defendant
admitted that this was one of several pharmacies that she and her accomplices had burglarized.

        Defendant’s sentencing guidelines range was 30 to 50 months; however, at sentencing the
prosecutor stated that if the drug crime had been committed after April 1, 2016, then the
guidelines range would have been 57 to 95 months because a new law changed the substances
stolen from Schedule 3 to Schedule 2 drugs. When imposing sentence on defendant, the trial
court stated:

              The Court has reviewed through the presentence investigation report.
       Sentencing guidelines are 30 to 50 months, and if this crime had been committed
1
 Defendant was also convicted of two counts of breaking and entering with intent, MCL
750.110, for which she was sentenced to terms of 3 to 10 years. Defendant does not appeal these
sentences.

                                               -1-
       after April 1st, the guideline range would have been 57 to 95 months, and even
       though this is your first criminal conviction, it’s a very serious crime.

               In order to punish you for what you have done, to attempt to rehabilitate
       you, to deter others from committing similar acts, and protection of the
       community, it’ll be the sentence of this Court that on the controlled substance,
       delivery or manufacture of . . . more than 50 grams, but less than 499 grams, that
       you be sentenced to the Michigan Department of Corrections for a period of seven
       years to 20 years, with credit served for four days served.

        On appeal, defendant argues that she is entitled to resentencing because the 7-year
minimum term, a substantial variance from the advisory range, was disproportionate, and that the
trial court did not articulate the reasons for the departure to justify the proportionality between
the sentence and the sentencing offense. We agree.2

       This case is controlled by People v Steanhouse (On Remand), ___ Mich App ___, ___;
___ NW2d ___ (2017) (Docket No. 318329), where we articulated the standards governing
departure sentences after the guidelines were made advisory in People v Lockridge, 498 Mich
358, 364, 392; 870 NW2d 502 (2015). Steanhouse held:

               Under the principle of proportionality standard, a sentence must be
       “proportionate to the seriousness of the circumstances surrounding the offense
       and the offender.” Milbourn, 435 Mich at 636. As such, the sentencing court
       must impose a sentence that takes “into account the nature of the offense and the
       background of the offender.” Id. at 651. Generally, sentences falling within the
       minimum sentencing guidelines range are presumptively proportionate. People v
       Cotton, 209 Mich App 82, 85; 530 NW2d 495 (1995). However, a departure
       sentence may be imposed when the trial court determines that “the recommended
       range under the guidelines is disproportionate, in either direction, to the
       seriousness of the crime.” Milbourn, 435 Mich at 657. Factors that may be
       considered under the principle of proportionality standard include, but are not
       limited to:

               (1) the seriousness of the offense; (2) factors that were
               inadequately considered by the guidelines; and (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. Lawhorn, ___
               Mich App ___, ___; ___ NW2d ___(2017) (Docket No. 330878);
               slip op at 7 (citation and quotation marks omitted).]


2
  Appellate courts are to review sentences under a standard of reasonableness. People v
Lockridge, 498 Mich 358, 364, 392; 870 NW2d 502 (2015). A sentence is said to be reasonable
if it complies with the principle of proportionality set forth in People v Milbourn. People v
Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015).

                                                -2-
               An appellate court must evaluate whether reasons exist to depart from the
       sentencing guidelines and whether the extent of the departure can satisfy the
       principle of proportionality. See Milbourn, 435 Mich at 659-660 (recognizing
       that “[e]ven 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”). Therefore, even in cases where reasons exist to
       justify a departure sentence, the trial court's articulation of the reasons for
       imposing a departure sentence must explain how the extent of the departure is
       proportionate to the seriousness of the circumstances surrounding the offense and
       the offender. See People v. Smith, 482 Mich 292, 304; 754 NW2d 284 (2008)
       (“When departing, the trial court must explain why the sentence imposed is more
       proportionate than a sentence within the guidelines recommendation would have
       been.”). [Steanhouse (On Remand), ___ Mich App at ___; slip op at 2-3.]



        In this case, the trial judge did not articulate grounds adequate for us to conclude that this
substantial departure was proportionate to the offender and the offense. The court noted only
that the crimes were “very serious” and that “if this crime had been committed after April 1st
[2016], the guideline range would have been 57 to 95 months. . . .” The referred-to increase on
April 1, 2016, is due to the reclassification of certain drugs from Schedule 3 to Schedule 2 that
took effect on that date, and is not relevant to crimes that occurred before that date. Thus, it was
not grounds to depart in this case.

        In addition, the trial court did not consider some of the nonexhaustive factors that are
relevant in determining whether a sentence is proportionate. See People v Lawhorn, 320 Mich
App 194, 207; ___ NW2d ___ (2017). This was defendant’s first conviction and appears to be
the first time she was ever charged with a crime. In addition, she expressed remorse and was
cooperating in the prosecution of her collaborators. These are important considerations to
individualized sentencing.

        Accordingly, we conclude that the trial court abused its discretion by failing to provide
adequate reasons for the substantial guideline departure and that the sentences imposed violated
the principle of proportionality. Steanhouse (On Remand), ___ Mich App at ___; slip op at 5.

       We vacate the sentence imposed for defendant’s controlled substance offense, MCL
333.7401(2)(a)(iii), and remand for resentencing as to that conviction. We deny defendant’s
request that the resentencing be before a different judge. Defendant has not shown that the
sentencing judge would have substantial difficulty in putting aside his previously expressed




                                                 -3-
views and we see no reason why the sentencing judge would be unable to conduct a resentencing
consistent with our direction. People v. Hughes, 165 Mich App 548, 549-550; 418 NW2d
913(1987).

       Remanded for resentencing. We retain jurisdiction.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Amy Ronayne Krause




                                             -4-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                              Cynthia Diane Stephens
People of MI v Erin Kathleen Dennis                                             Presiding Judge

Docket No.     336549                                                         Douglas B. Shapiro

LC No.         16-008410-FC                                                   Amy Ronayne Krause
                                                                                Judges


               Pursuant to the opinion issued concurrently with this order, the Court orders that the July
20, 2016 judgment of sentence be VACATED, and this matter be REMANDED to the Gladwin Circuit
Court for the purpose of resentencing defendant. This Court retains jurisdiction in the cause.

                Upon the expiration of the 56-day period in which to file an application for leave to
appeal in the Supreme Court, MCR 7.305(C)(2), the trial court shall commence resentencing
proceedings, and those proceedings shall be given priority on remand until they are concluded. The
parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after
entry, appellant shall file with this Court a copy of the judgment of sentence entered on remand. The
transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of
the proceedings.

                Either party may file a supplemental brief pertaining to the issues raised on remand
within 21 days after entry of the trial court’s order deciding the matter or 21 days after the transcript of
the hearing is filed, whichever is later. The responsive party may file a supplemental brief in reply.
Alternatively, the parties may file a stipulation to dismiss this appeal.



                                                            /s/ Cynthia Diane Stephens




                                March 22, 2018
