                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    September 26, 2017
               Plaintiff­Appellee,

v                                                                   No. 331499
                                                                    Jackson Circuit Court
DAWN MARIE DIXON­BEY,                                               LC No. 15­004596­FC

               Defendant­Appellant.


Before: O’BRIEN, P.J., and HOEKSTRA and BOONSTRA, JJ.

Boonstra, J. (concurring in part and dissenting in part).

        I concur with the majority in affirming defendant’s conviction. I respectfully dissent,
however, from the majority’s holding that the trial court’s sentencing departure violated the
principle of proportionality.

       As the majority acknowledges, we review a trial court’s sentencing departure for
“reasonableness,” Lockridge, 498 Mich at 391­392, and we review for an abuse of discretion the
reasonableness of the sentence imposed by the trial court, People v Steanhouse, ___ Mich ___,
___; ___ NW2d ___ (2017) (Docket Nos. 152671, 152849, 152871­152873, 152946­152948),
slip op at 10. In reviewing a sentence for reasonableness, we must apply the “principle­of­
proportionality test” that was adopted in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990). Steanhouse, __ Mich at __, slip op at 10.

        Our Supreme Court recently emphasized in Steanhouse that “ ‘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.’ ” Id. at __, slip op at 10, quoting Milbourn, 435 Mich at
661. And the Court specifically disavowed “dicta in our proportionality cases [that] could be
read to have urg[ed] that the guidelines should almost always control” and that thus could be
interpreted as “creating an impermissible presumption of unreasonableness for sentences outside
the Guidelines range.” Id. at __, slip op at 11 (quotation marks and citations omitted). The
Steanhouse Court also specifically disavowed the statement in Milbourn that departure sentences
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 legislative sentencing scheme.” Id. at __,
slip op at 11, quoting Milbourn, 435 Mich at 659. “Rather than impermissibly measuring
proportionality by reference to deviations from the guidelines, our principle of proportionality
requires ‘sentences imposed by the trial court to be proportionate to the seriousness of the



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circumstances surrounding the offense and the offender.’ ” Id. at __, slip op at 11, quoting
Milbourn, 435 Mich at 636. See also People v Walden, ___ Mich App ___, ___; ___ NW2d ___
(2017) (Docket No. 330144); slip op at 4­5.

         Again, the trial court’s application of the “principle­of­proportionality test” is reviewed
by this Court for an abuse of discretion. Steanhouse, ___ Mich at __, slip op at 10. An abuse of
discretion occurs when the trial court’s decision falls outside a “range of principled outcomes.”
People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008); Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006). The abuse of discretion standard acknowledges that
“[b]ecause of the trial court’s familiarity with the facts and its experience in sentencing, the trial
court is better situated than the appellate court to determine whether a departure is warranted in a
particular case.” People v Babcock, 469 Mich 247, 268; 666 NW2d 231 (2003). Moreover, “[a]t
its core, an abuse of discretion standard acknowledges that there will be circumstances in which
there will be no single correct outcome; rather, there will be more than one reasonable and
principled outcome.” Id. at 269. “When the trial court selects one of these principled outcomes,
the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer
to the trial court’s judgment.” Id.

       I am unable to conclude on the record before us that the trial court selected an
unprincipled outcome in this case.

In rendering a sentence, a trial court in Michigan is no longer obliged to articulate a “substantial
and compelling reason” to depart from the sentencing guidelines range. People v Lockridge, 498
Mich at 391­392 (striking down that requirement of MCL 769.34(3)). But it must still “justify
the sentence imposed in order to facilitate appellate review.” Id. at 392. See also Steanhouse, __
Mich at __, slip op at 10. Indeed, that requirement “reflects sound judicial practice. Judicial
decisions are reasoned decisions. Confidence in a judge’s use of reason underlies the public’s
trust in the judicial institution. A public statement of those reasons helps provide the public with
the assurance that creates that trust.” Rita v United States, 551 US 338, 356; 127 S Ct 2456; 168
L Ed 2d 203 (2007).

       However, when a trial court justifies an imposed sentence, “[t]he appropriateness of
brevity or length, conciseness or detail, when to write, what to say, depends upon
circumstances,” and “[t]he law leaves much, in this respect, to the judge’s own professional
judgment.” Id. “The sentencing judge should set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Id. Depending on the circumstances, that statement of reasons may
be “brief but legally sufficient.” Id. at 358. “By articulating reasons, even if brief, the
sentencing judge . . . assures reviewing courts (and the public) that the sentencing process is a
reasoned process . . . .” Id. at 357.

       The sentencing judge in this case arguably could have said more. And saying more rather
than less certainly aids an appellate court in assessing the reasonableness of a sentence.
Ultimately, however, the relevant inquiry is whether the trial court followed a “reasoned”
process that led to a “reasoned” decision. Id. at 356­359.




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       At the sentencing in this case, the trial court first entertained objections to the proposed
guidelines sentencing range of 144 months to 240 months. The court denied a defense request to
change the scoring of Offense Variable (OV) 6 (offender’s intent to kill) from 25 to zero points.
The court denied a prosecution request to change the scoring of OV 10 (exploitation of
vulnerable victim) from zero to five points.

       Defense counsel then addressed the trial court as follows:

               . . . Your Honor, I ­­ I will be brief as you were the Judge that sat through
       the jury trial and heard the evidence. You’ve heard the prosecutor’s theory of the
       case and you heard my client’s theory of the case. Obviously, the jury believed
       that there was some culpability on my client and they came back with a verdict of
       second degree murder. But, when you look at the full facts of this case and the
       living arrangements and the way this couple had lived for the last ten years I think
       there’s no doubt that this was a very hostile relationship, so to speak, at times.
       And I’d ask the court to be lenient on my client and ask for the lower part of the
       guidelines. The guidelines score her at 144 to 240, I believe, at ­­ on the
       minimum range and we’d ask that your Honor score ­­ sentence her to the lower
       end of that guideline.

       Defendant presented a statement on her own behalf, the victim’s sister presented a
statement on behalf of the victim’s family, and the court also heard from the victim’s best friend.
The prosecution then addressed the court, requesting that it “significantly exceed the sentencing
guidelines” and sentence defendant “at a minimum, on the low end, to 30 years.” The
prosecution argued:

                . . . I’m asking the court to significantly exceed the ­­ the sentencing
       guidelines. I recognize that they’re basically recommendations at this point. I’m
       asking that the court sentence Ms. Dixon­Bey at a minimum, on the low end, to
       30 years. You know, we ­­ the legislature comes up with these numbers and I
       think generally they do a good job in terms of recommending sentences when it
       comes to something like this, a cold blooded murder. The ­­ the pain and the
       suffering that this family has to go through as a result of the defendant, the ­­
       these numbers can’t possibly capture any of that. There’s just no possible way
       that it can.

               Ms. Dixon­Bey spent the entire trial painting a ­­ this picture of an abusive
       relationship about how Greg abused her. And I firmly believe that there was an
       abusive relationship, but she was the abuser. She was the one who had stabbed
       him multiple times in the past. Greg was the one who refused to cooperate with
       the police, who refused to cooperate with the prosecutor.

              You know, she also spent all this time talking about how he ­­ his drinking
       got worse and worse. Well, that’s what happens when you’re being abused.
       That’s what happens in an abusive relationship. That’s why his drinking got
       worse and worse, because of her. The ­­ I ­­ I can’t possibly fathom what ­­ what
       the family’s going through. The ­­ the ­­ the court heard the testimony. I’m not


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going to resuscitate the testimony but, you know, this ­­ this was no accident. She
stabbed him twice straight through the heart. She had done it in the past, she
planned to do it, she told people she was gonna do it and did it on that day.

        The ­­ the court has a profound opportunity to do great justice for the
Stack family, for Greg and for the community, you know, that Greg was taken
away from the family but he was also taken away from the community, and by all
accounts he was a wonderful member of the community and I’m asking that the
court sentence her to at least 30 years on the minimum end. That would put her in
her 70s to make sure that the community is protected from her for as long as it
possibly can be.

The trial court then articulated its sentence and the reasons therefore, as follows:

         . . . All right, well the court sat through this trial, for several weeks I
listened to a lot of testimony and I’ve learned that few people in this business are
perfect. And Mr. Stack had a lot of really great qualities and he had one major
fatal flaw, that’s that he stayed in a relationship with you. And I ­­ I ­­ I don’t buy
your ­­ your theory that this was just some kind of domestic situation and you
struck out at him in some type of vulnerability. In fact, I think some ­­ some ­­
some facts that were well established during the trial are significant and that’s
the ­­ first, is that you stabbed him not one but twice in the heart.

        Mr. Carter,[sic] might’ve ­­ oh, you know, maybe Dr. Ortiz­Reyes, you
know, cut that when he was doing the autopsy. That ­­ that wasn’t­­ there was a
second stab wound and it was directly to the heart. One and one half years before
this even occurred you slashed Mr. Stack, you know, such that he had to have
reconstructive surgery on his hand. So, this wasn’t the first time there was a
domestic act of violence with you involving a knife with the victim. In fact, you
told Mr. Gove that all I have to do is stick him in the chest and then claim self­
defense. That was a statement that you made before the alleged time when he
was ­­ Mr. Stack was stabbed twice in ­­ in the heart.

        And then, on ­­ on ­­ on the night in question we know the murder
weaponed [sic] vanished. It was never found, never able to be processed by the
police.

       So, you had the presence of mind to do that. You had the presence of
mind to go ahead and try to minimize your role and then try to turn the focus, you
know, back on Mr. Stack as being the cause. Well, today the focus is about you.
An intent can be determined by what you did, what you said, both before, during
and after the crime. And, frankly, you plunged that knife into Mr. Stack’s heart
twice and you brutally murdered him in cold blood. And for that by the power
vested in me in the State ­­ by the State of Michigan you’re to serve thirty­five
(35) years to seventy (70) years in the Michigan Department of Corrections, five
hundred dollars ($500.00) in court costs, three hundred and seventy­five dollars
($375.00) in fines, a hundred and thirty dollars ($130.00) to the Crime Victims


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       Rights Fund, sixty­eight dollars ($68.00) in State court costs, three hundred and
       fifty dollars ($350.00) in attorney’s fees, sixty dollars ($60.00) in the DNA fee.

               You know, with you married to another man in prison I’m just amazed he
       ever even stayed with you in the ­­ in a relationship. And ­­ and by the way, I did
       consider the sentencing guidelines which were 12 years to 20 years but I
       considered that the additional level of depraved heart and murder and the cold
       calculated nature of you brutally stabbing him twice in the heart and letting him
       bleed to death and die in this matter. So, the court believes my sentence is within
       the range. The guidelines are only advisory so you will serve that time. You’ll be
       an old woman before you get out of prison.

        Based on the record, I conclude that the trial court’s sentencing decision reflects a
“reasoned” process and a “reasoned” decision. The record makes clear that the court listened to
the arguments of defense counsel and the prosecution. It listened to defendant, as well as to a
family member and a friend of the victim. It evaluated the evidence after having spent several
weeks listening to the testimony. It specifically took into account the now­advisory sentencing
guidelines, and found that they did not adequately capture the circumstances before it. It noted
what it saw as a heightened level of depravity underlying this particular murder, its “cold
calculated nature,” the fact that defendant stabbed the victim in the heart not once but twice, the
fact that she had stabbed the victim in the past and that she had told a third party that she could
stab the victim in the chest and then claim self­defense (precisely as she later did in this case),
the fact that she disposed of the murder weapon after the killing, and that fact that her relatively
young age necessitated a lengthy sentence to adequately secure the protection of the public.

        In my judgment, the trial court’s decision was a “reasoned” one that resulted from a
“reasoned” sentencing process. Under the applicable abuse of discretion standard, given the
level of deference that we afford to trial judges because of their greater familiarity with the facts
and experience in sentencing, I cannot find on the record before us that the trial court’s sentence
was not a “principled” outcome.

        Moreover, while the trial court “must … continue to consult the applicable guidelines
range and take it into account when imposing a sentence,” Steanhouse, __ Mich at __, slip op at
10, quoting Lockridge, 498 Mich at 392, the trial court expressly noted that it had done so here.1
More significantly, proportionality in Michigan is not measured by the degree to which a
departure sentence deviates from the guidelines, but rather by the seriousness of the offense.
Steanhouse, __ Mich at __, slip op at 11, quoting Milbourn, 435 Mich at 636 (“Rather than
impermissibly measuring proportionality by reference to deviations from the guidelines, our
principle of proportionality requires ‘sentences imposed by the trial court to be proportionate to
the seriousness of the circumstances surrounding the offense and the offender.’ ”). I find no
abuse of discretion in the trial court’s assessment of the circumstances of this offense and this
offender as sufficiently serious to warrant the sentence imposed.


1
 I am puzzled by the majority’s suggestion that I read Steanhouse as “encourag[ing] appellate
courts to determine proportionality in a void without consideration of the sentencing guidelines.”



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        To the extent, however, that we are to review the trial court’s consideration of the
guidelines, I also find no error. The majority suggests that the factors cited by the trial court
were already taken into account by the guidelines. To that I must hearken back to the Supreme
Court’s disavowal in Steanhouse of earlier dicta suggesting that the “guidelines should nearly
always control,” and the above­noted admonition that proportionality is not measured in relation
to the guidelines. Steanhouse, __ Mich at __, slip op at 11 (quotation marks and citations
omitted). Moreover, I would not characterize the trial court’s discussion of the two stab wounds
merely as references to the use of a knife as reflected in OV 1 and OV 2; rather, it is clear that
the trial court was referencing the two stab wounds to the heart of the victim in the context of
other past and threatened stabbings and as supporting its conclusion that defendant had with a
depraved heart planned and cold­bloodedly carried out the murder. The majority finds it
significant that the trial court referenced the “cold­blooded” nature of defendant’s crime without
insisting that OV 7 (aggravated physical abuse) be scored at 50 points. I do not find this
particularly significant, however, as cold­bloodedness is not necessarily merely a synonym for
brutality under OV 7.

        Moreover, while the trial court was constrained by the language of MCL 777.36(2)(a)2
from scoring OV 6 (offender’s intent to kill) at 50 points rather than 25 points, it was not
constrained from finding that the guidelines range did not take into account defendant’s
premeditated intent to kill. The trial court made reference to the fact that defendant had talked
about stabbing the victim and claiming self­defense, that she had stabbed the victim in the past,
and that she disposed of the murder weapon after committing the offense. These facts support
the inference that OV 6 was given inadequate weight. And although OV 19 (interference with
the administration of justice) was not scored, defendant’s conduct in both initially lying to the
police and in disposing of the murder weapon could not adequately have been captured by the
scoring of this variable, because only one score of 10 points would have been permitted despite
defendant’s multiple acts of interference with the administration of justice. See MCL 777.49.

        I also note that if 30 or more additional OV points had been scored, such as by scoring
OV 6 at 50 points rather than 25 and scoring OV 19 at 10 points rather than zero, defendant
would have been subject to the highest OV level under the guidelines. See MCL 777.61. An
offender scored at the highest OV level for second­degree murder may be given, under the
recommended guidelines, a minimum sentence of 162 to 270 months or life. Id. Consequently,
had a different scoring of certain OVs been made, as I believe the record would have justified in
this case, the trial court could have sentenced defendant to a minimum term of life in prison
without even departing from the guidelines. See People v Johnson, 202 Mich App 281, 291; 508
NW2d 509 (1993) (holding that sentencing a defendant to a term of years that exceeds the
recommended term of years in the guidelines is a departure even when a sentence of life would
not be a departure).




2
 “The sentencing judge shall score this variable consistent with a jury verdict unless the judge
has information that was not presented to the jury.”



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        Finally, it is clear that the trial court considered the extent of its departure and was aware
that defendant, in the trial court’s words, would be “an old woman before you get out of prison.”
The trial court considered defendant’s previous acts of domestic violence upon the victim
(including slashing him with a knife to the point where he needed reconstructive surgery), her
premeditated intent (as evidenced by her suggestion that she could stab the victim in the chest
and claim self­defense), as well as her post­offense conduct and lack of remorse, in making this
decision. I would hold that the trial court’s sentence was not outside the range of principled
outcomes, notwithstanding whether a different trial court (or this Court) may have reached a
different outcome. Steanhouse, ___ Mich at ___, slip op at 10; Babcock, 469 Mich at 268.

       I would affirm the trial court in all respects.



                                                              /s/ Mark T. Boonstra




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