            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 21, 2019
               Plaintiff-Appellee,

v                                                                    No. 336692
                                                                     Oakland Circuit Court
MICHAEL ALAN LATIMER,                                                LC No. 2015-256955-FC

               Defendant-Appellant.


Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

RONAYNE KRAUSE, J. (concurring in part and dissenting in part)

        I concur with the majority’s reasoning and conclusions regarding the sufficiency of the
evidence and the scoring of Offense Variable 7. I further agree with much of the applicable law
the majority recites. Finally, I agree with the majority’s recitation of the trial court’s statements
at sentencing. However, I disagree with the majority’s conclusion that the trial court properly
imposed a departure sentence. I believe that the trial court provided an inadequate explanation of
how defendant’s sentence was proportionate, and the trial court’s statements suggest an
unacceptably disturbing likelihood that its sentence was based on defendant’s exercise of his
right to a jury trial and refusal to admit guilt. Therefore, I respectfully dissent from the
majority’s affirmance of that sentence.

        Defendant and the victim agreed that the victim attacked defendant preemptively,
whereupon defendant stabbed the victim numerous times with a screwdriver, causing the victim
severe injuries. The only meaningful factual dispute about the assault itself was whether
defendant first issued a threat to the victim, or whether the victim attacked defendant without
warning. Defendant’s entire theory of the case was that he was acting in self-defense, did not
intend to kill the victim, and only stabbed the victim because he was afraid the victim would
harm him. In other words, defendant sought to challenge whether he had the requisite mens rea,
rather than seriously disputing his actus reus. At sentencing, defense counsel explained that the
“primary reason why he went to trial” was that the prosecution refused any plea that did not




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entail admitting to an intent to commit murder, so he “would have had to go to trial to show that
he did not want to kill [the victim] or plead to assault with intent to murder.”1 Defendant
reiterated that he had no intention of murdering the victim and that the acts of violence he
committed were to get away from the victim. As the majority observes, defendant was charged
with assault with intent to commit murder. MCL 750.83. The jury convicted defendant of the
lesser offense of assault with intent to do great bodily harm less than murder. MCL 750.84.
Thus, although the jury did not accept defendant’s self-defense claim, the jury did accept
defendant’s purpose for going to trial: that he lacked the intent to kill.

        I agree with the majority that the trial court was within its rights to engage in judicial
fact-finding and consider acquitted conduct in crafting an appropriate sentence. Likewise, I
agree that the trial court may consider characteristics it believes to be inadequately accounted for
by the guidelines, such as unscored criminal history or defendant’s conduct in custody.
Reciprocally, I infer no dispute by the majority that “[a] court cannot base its sentence even in
part on a defendant’s refusal to admit guilt.” People v Yennior, 399 Mich 892, 892; 282 NW2d
920 (1977); see also People v Grable, 57 Mich App 184, 188-189; 225 NW2d 724 (1974).
Likewise, I believe we are in agreement that “[a] sentencing court cannot base its sentence on a
defendant’s decision to exercise his constitutional right to a jury trial.” People v Brown, 294
Mich App 377, 389; 811 NW2d 531 (2011). As the majority notes, a trial court does not err by
merely commenting on a defendant’s lack of remorse. People v Houston, 448 Mich 312, 323;
532 NW2d 508 (1995); People v Wesley, 428 Mich 708; 411 NW2d 159 (1987).

        However, remorse necessarily implies regret for something. It is thus logically
impossible to feel remorse for something one did not do. Consequently, where a defendant
maintains his innocence, I can imagine no rational way to hold a lack of remorse against that
defendant without implicitly also punishing that defendant for maintaining innocence. Here,
defendant never seriously contended that he did not engage in any assaultive behavior. He
merely maintained his basis for having believed he had no choice but to trial: that he did not
intend to kill the victim and was primarily trying to get away. The trial court took this as
“shifting blame” and claiming to be the true victim. However, defendant did no more than
maintain his theory of the case. The trial court additionally relied on the victim’s statements
castigating defendant for refusing to plead guilty. Notwithstanding its disclaimer, the trial
court’s commentary strongly indicates that the trial court punished defendant for insisting on a
trial and maintaining that he had no intent to kill—which the jury clearly accepted. As a
consequence, the trial court’s sentence must be vacated, because it was premised on
impermissible considerations.2

        This is especially concerning because the trial court failed to articulate how the extent of
its departure from the sentencing guidelines range was proportionate. Defendant’s guidelines


1
 I therefore respectfully disagree with the majority that the issue at trial was primarily whether
defendant was “guilty of any assaultive crime.”
2
  At a minimum, I am concerned that the trial court’s statements undermine “the appearance of
justice.” See Offutt v US, 348 US 11, 14; 76 S Ct 11; 99 L Ed 11 (1954).


                                                -2-
range was 135 to 225 months, so the 384-month minimum sentence imposed by the trial court
exceeded the guidelines by more than 70%. Although the guidelines are now advisory, they
“remain a highly relevant consideration in a trial court’s exercise of sentencing discretion that
trial courts must consult and take into account when sentencing.” People v Steanhouse, 500
Mich 453, 472, 474-475; 902 NW2d 327 (2017) (internal quotations and alterations omitted).
“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
Rosa, 322 Mich App 726, 747; 913 NW2d 392 (2018), quoting People v Steanhouse (On
Remand), 322 Mich App 233, 239; 911 NW2d 253 (2017) (emphasis in original). The trial court
provided reasons for a departure from the guidelines, but even if those reasons had all been
permissible, the trial court merely opined that its resulting sentence was “very reasonable.” Such
a conclusory remark gives this Court very little to review. The trial court “fail[ed] to provide
adequate reasons for the extent of the departure sentence.” Steanhouse, 500 Mich at 476
(emphasis added). The sentence was therefore an abuse of discretion. Id.

         I emphasize that the trial court’s departure sentence is not necessarily unwarranted or
inappropriate under the circumstances of this defendant and this crime. Had the trial court more
carefully and completely articulated a basis for why it found its departure sentence proportionate,
its disclaimer that it had not done so on the basis of defendant insisting on a trial and refusing to
admit guilt would likely carry vastly more persuasive weight. However, even if a sentence is
otherwise proper, it must be vacated if it is based on impermissible considerations. See, e.g.,
People v Gjidoda, 140 Mich App 294, 300-302; 364 NW2d 698 (1985). The trial court’s
commentary and lack of articulation here suggest an unacceptable risk that its sentence was
based on impermissible considerations. The trial court may certainly re-impose the same
sentence, but on this record, the sentence should be vacated, and the matter should be remanded
for resentencing.

                                                              /s/ Amy Ronayne Krause




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