                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 29, 2018
                Plaintiff-Appellee,

v                                                                  No. 328957
                                                                   Macomb Circuit Court
JOHN ANTHONY NOTTE,                                                LC No. 2012-002664-FH

                Defendant-Appellant.


Before: JANSEN, P.J., and K. F. KELLY and BORRELLO, JJ.

PER CURIAM.

       Defendant appeals by leave granted1 from the trial court’s judgment of sentence revoking
his probation and sentencing him to prison. Defendant originally pleaded guilty to the
underlying charge of manufacture of 45 kilograms or more of marijuana, MCL
333.7401(2)(d)(i). Defendant was sentenced to three years’ probation. Following defendant’s
plea of guilty to a fifth probation violation, defendant’s probation was revoked, and he was
sentenced to 5 to 15 years’ imprisonment for the probation violation on the underlying
manufacture of 45 kilograms or more of marijuana conviction. For the reasons set forth in this
opinion, we vacate defendant’s sentence and remand for resentencing.

                                       I. BACKGROUND

        As previously stated, this matter began when defendant pled guilty in 2012 to the
manufacture of 45 kilograms or more of marijuana in violation of MCL 333.7401(2)(d)(i).
Defendant was initially sentenced to three years’ probation. On January 21, 2014, defendant
pled guilty to violating his probation by testing positive for cocaine. As a result, defendant was
ordered to complete a 180-day intensive urinalysis monitoring program. On April 23, 2014,
defendant admitted that he tested positive for alcohol on two prior drug screenings. As a result
of defendant’s second probation violation, the trial court extended defendant’s probation from
three years to five years. Defendant was also ordered to serve 30 days in the Macomb County
jail, then complete six months of tether following his release. Not long after his release,
defendant appeared before the trial court on October 15, 2014 for failure to appear for drug


1
    People v Notte, 501 Mich 875; 901 NW2d 866 (2017).


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screenings and engaging in assaultive behavior. Following a hearing, the trial court found
defendant guilty of violating his probation for failing to appear for drug tests and by engaging in
assaultive behavior. Defendant was ordered to serve 160 days in the Macomb County jail and
continue adhering to the conditions of his probation.

        On July 24, 2015 defendant appeared before the trial court on his fifth probation violation
and pled guilty to having consumed alcohol while on probation. According to defendant, he
drank two glasses of wine to celebrate his removal from tether. On August 3, 2015, defendant’s
probation was revoked and he was sentenced to a term of imprisonment as set forth above. This
appeal then ensued.

                                         II. ANALYSIS

       On appeal, defendant argues that the trial court violated the principle of proportionality
and imposed a disproportionate sentence by failing to consider the sentencing guidelines during
sentencing and failing to justify the extent of the departure sentence.

        “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). This Court reviews the reasonableness of a sentence for an abuse of discretion. People v
Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). An abuse of discretion occurs when the
trial court violates the principle of proportionality or fails to “provide adequate reasons for the
extent of the departure sentence implied.” Id.

        When a trial court revokes probation, it is permitted to “sentence the defendant ‘in the
same manner and to the same penalty as the court might have done if the probation order had
never been made.’ ” People v Hendrick, 472 Mich 555; 562; 697 NW2d 511 (2005), quoting
MCL 771.4. The revocation of probation “clears the way for a resentencing on the original
offense.” Id. (quotation marks and citation omitted). The trial court is permitted to consider the
original offense for which a defendant was convicted, as well as the defendant’s conduct during
probation, in order to determine whether a departure sentence is warranted. Id. at 562-563, 565.

       Our Supreme Court has held that Michigan’s sentencing guidelines are advisory, rather
than mandatory, and that a trial court is no longer required to “articulate a substantial and
compelling reason” for a departure from the minimum sentencing guidelines range. Lockridge,
498 Mich at 391-392. Following Lockridge, this Court reviews departure sentences for
reasonableness. Id. at 392. The reasonableness of a sentence is reviewed using the “principle of
proportionality,” originally articulated in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990). Steanhouse, 500 Mich at 460. The principle of proportionality standard allows this
Court to consider a number of factors in sentencing a defendant, including:

       (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 Steanhouse, 313 Mich App 1, 46; 880



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       NW2d 297 (2015) (internal citations omitted), rev’d in part on other grounds by
       Steanhouse, 500 Mich at 453.]

         Defendant’s first claim of error rests on his argument that the trial court failed to take his
sentencing guideline range into account when considering his sentence. Although a trial court
may find it useful to make a reference to the minimum sentencing guidelines range while
explaining the rationale behind its decision impose a departure sentence, “the trial court is not
required to use any formulaic or ‘magic’ words” to justify the departure. People v Smith, 482
Mich 292, 309-310; 754 NW2d 284 (2008). In support of his argument, defendant observes that
the trial court never explicitly mentioned that his minimum sentencing guidelines range was 5 to
17 months. However, the record reflects that a probation officer informed the trial court that
defendant’s minimum sentencing guidelines range was 5 to 17 months, indicating that the trial
court was aware of the minimum sentencing guidelines range applicable to defendant.
Defendant’s PSIR also states that his minimum sentencing guidelines range was 5 to 17 months.
Although the trial court did not specifically mention the PSIR, the trial court’s comments at
sentencing indicated that it was aware of the information contained in the PSIR prior to imposing
its sentence on defendant. The record further reflects that the trial court was aware of the
minimum sentencing guidelines range applicable to defendant. Thus, defendant is not entitled to
relief on this issue.

        Defendant next argues that the trial court failed to provide justification on the record for
the extent of the departure imposed. When imposing a departure sentence, the trial court is
required to “ ‘justify the sentence imposed in order to facilitate appellate review.’ ” Steanhouse,
500 Mich at 460, quoting Lockridge, 498 Mich at 392. “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.” People v Steanhouse (On Remand), 322
Mich App 233, 239; 911 NW2d 253 (2017). Therefore, “even in cases in which 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 offender.” Id. (emphasis added).

        Defendant was sentenced to 5 to 15 years’ imprisonment. The minimum sentencing
guidelines range applicable to defendant was 5 to 17 months’ imprisonment. In sentencing
defendant, the trial court noted that it believed compelling reasons existed for the departure
based on defendant’s probation violations, blatant disrespect for the trial court’s orders related to
probation, and failure to make a successful effort at rehabilitation while on probation. The trial
court stated, in relevant part:

       [Defendant], I should have put you in prison from the get go . . . . I wanted to
       believe you were going to take the right step[s] . . . . And what do you do? You
       constantly violate [your] probation.

                                               * * *

       I will find compelling reasons in that this is the [fifth] violation of probation, that
       you have blatantly disrespected every court order that I have ever issued with
       respect to your rehabilitation. We have exhausted all of our means to try to

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       rehabilitate you and I am tired of struggling with this [d]efendant and his need to
       wake up and recognize that people are not out to get him, that all we ever tried to
       do was help him.

        Defendant was sentenced to 5 to 15 years’ imprisonment. The minimum sentencing
guidelines range applicable to defendant was 5 to 17 months’ imprisonment. In sentencing
defendant, the trial court noted that it believed compelling reasons existed for the departure
based on defendant’s probation violations, blatant disrespect for the trial court’s orders related to
probation, and failure to make a successful effort at rehabilitation while on probation. Although
it appears that the trial court properly provided a rationale for the sentence it imposed, we cannot
find in the record where the trial court directly acknowledged that the sentence constituted a
departure from the minimum sentencing guidelines range. Additionally, we cannot find within
the record evidence that the trial court properly connected the reasons for departure to the extent
of the departure chosen. Additionally, the trial court did not explain why a departure sentence
was more proper under the circumstances than a sentence within the minimum sentencing
guidelines range. As mandated by our Supreme Court: “A sentence cannot be upheld when the
connection between the reasons given for the departure and the extent of the departure is
unclear.” Smith, 482 Mich at 304. Additionally, as noted by this Court: “…even in cases in
which reasons exist to justify a departure sentence, the trial court’s articulation of the reason 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.” Steanhouse (On
Remand), 322 Mich App at 239. Accordingly, in the absence of any record evidence as to the
trial court’s rationale for the extent of the departure and how that departure was proportionate to
the seriousness of the offense and the offender, we vacate defendant’s sentence and remand for
resentencing.

        We vacate defendant’s sentence and remand to the trial court for resentencing. We do
not retain jurisdiction.



                                                              /s/ Kathleen Jansen
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Stephen L. Borrello




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