            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 30, 2020
               Plaintiff-Appellee,

v                                                                    No. 344197
                                                                     Wayne Circuit Court
MARCUS RONNELL CROFF,                                                LC No. 17-009474-01-FC

               Defendant-Appellant.


Before: METER, P.J., and FORT HOOD and REDFORD, JJ.

METER, P.J. (concurring).

        I concur with the majority’s well-reasoned resolution of this case. I write separately only
to point out that our Supreme Court’s seminal decision in People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015), although making significant legal changes, has had little practical effect
on the restraints placed on a trial judge’s sentencing discretion by the guidelines and to urge our
Supreme Court to reconsider whether MCL 769.34(10) remains viable post-Lockridge.

        In Alleyne v United States, 570 US 99, 114-116; 133 S Ct 2151; 186 L Ed 2d 314 (2013),
the federal Supreme Court determined that, in mandatory sentencing schemes, a criminal
defendant’s Sixth Amendment rights are violated when he is sentenced on the basis of facts that
are not found by a jury beyond a reasonable doubt. Acknowledging this decision, in Lockridge,
498 Mich at 391-392, our Supreme Court severed our sentencing guidelines, MCL 777.1 et seq.,
to the extent that they were mandatory and “[struck] down the requirement of a substantial and
compelling reason to depart from the guidelines range.” (Internal quotation marks and citation
omitted). Our Supreme Court then necessarily ascribed an advisory role for the guidelines. Id.
at 392; see also People v Steanhouse, 500 Mich 453, 466; 902 NW2d 327 (2017) (reaffirming
that Lockridge rendered “the guidelines advisory in all applications”).

        Following Lockridge, a trial court may still depart from the guidelines range, even on the
basis of judicially found facts, when the trial court determines that doing so is reasonable, id. at
391-392, on the basis of “the seriousness of the circumstances surrounding the offense and the
offender,” Steanhouse, 500 Mich at 474, quoting People v Milbourn, 435 Mich 630, 636; 461
NW2d 1 (1990). “When a trial court does not depart from the recommended minimum



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sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or
the trial court relied on inaccurate information.” People v Schrauben, 314 Mich App 181, 196;
886 NW2d 173, 181 (2016); see also MCL 769.34(10).

        This latter rule blunts the advancements made by Lockridge, leaving intact, for all
practical purposes, the constitutional infirmity that plagued the legislative guidelines in the first
instance. Under this rule, an appellant may, in relevant part, invoke our review only when the
trial court “departs” from the guidelines range. By granting sentences within the legislative
guidelines a preferred status, this Court has practically revived the mandatory system our
Supreme Court has already found unconstitutional. In both pre- and post-Lockridge systems, the
trial court must give additional reasons to justify its deviation from the legislative guidelines and
deviations—or departures as they are often still erroneously described—will be closely
scrutinized by this Court.

       Lockridge “rendered the sentencing guidelines advisory in all cases.” Steanhouse, 500
Mich at 470 (emphasis added), resurrecting the principle of proportionality that existed before
the adoption of the mandatory guidelines. Our Supreme Court has reiterated that this principle
does not measure “proportionality by reference to deviations from the guidelines.” Id. at 474.
Yet, under this Court’s precedent, to invoke proportionality review, the defendant must make a
threshold showing of a deviation. See Schrauben, 314 Mich App at 196 n 1. In my opinion, the
two rules cannot be reconciled. By requiring a criminal defendant to make a threshold showing
of a deviation from the guidelines, we have inherently measured the proportionality of his or her
sentence by reference to the deviation.

        Our principle of proportionality requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the individual offense and the
individual offender in each and every case. Each sentence must be justified; not just sentences
outside of the guidelines range. Foreclosing criminal defendants from reasonableness review
just because their sentence was within the purely advisory sentencing guidelines only reaffirms
the preeminence of the sentencing guidelines, rendering Lockridge a mere paper construct. It
goes without saying that paper artifices are not sufficient to protect the important constitutional
rights implicated by Lockridge.

        Since Lockridge, this Court and trial courts have been inundated with challenges to the
scoring of the sentencing guidelines, creating a veritable cottage industry. I posit that this
inundation is further evidence that the sentencing guidelines retain improper preeminence post-
Lockridge. If the sentencing guidelines are truly advisory in all respects, the ultimate question
for our review should be whether the sentence handed down by the trial judge is “proportionate
to the seriousness of the circumstances surrounding the offense and the offender.” Practically,
however, our review often focuses on whether a trial court’s score for a particular variable fits
within the narrow parameters set by our legislature as further distilled by caselaw. Setting aside
the fact that the statutes setting forth these parameters are often overlapping and inarticulate, if
the guidelines are purely advisory, it should not matter whether the trial judge scored ten points
for a variable concerning which the legislature would have only assigned five points. If the trial
judge’s justification for the sentence is sufficient for this Court to conclude that the sentence was
proportionate to the offender’s criminality and circumstances, then it should be affirmed on
appeal; if the justification is insufficient for us to make that conclusion, the case should be

                                                -2-
remanded. Indeed, this was the practice for many years before the adoption of either the judicial
or legislative guidelines. It should matter not whether the legislature would have sentenced the
defendant differently; in an indeterminate-sentencing regime, discretion is posited in the trial
judge who hears the case to determine the appropriate sentence.

        Our Supreme Court recently declined an application for leave to appeal in People v Ames,
unpublished opinion of the Court of Appeals issued August 10, 2017 (Docket No. 333239),
which would have addressed whether MCL 769.34(10) remains viable post-Lockridge. See
People v Ames, 504 Mich 899; 929 NW2d 283 (2019). For the reasons stated above, I would
urge our Supreme Court to revisit this decision, grant leave on Ames or a similar case, and put
the final nail in the coffin of the sentencing guidelines.



                                                           /s/ Patrick M. Meter




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