            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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 17, 2019
              Plaintiff-Appellee,

v                                                                  No. 333852
                                                                   Kent Circuit Court
KESIA DIONNA MALONE,                                               LC No. 15-011206-FH

              Defendant-Appellant.


MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

SWARTZLE, J. (dissenting).

       I respectfully dissent. As noted by the majority, defendant’s minimum sentencing
guidelines range was 10 to 34 months of imprisonment, and the trial court upwardly departed by
sentencing defendant to 80 to 120 months of imprisonment. In support of the sentence, the trial
court briefly noted the following: defendant was on probation for two retail fraud convictions as
a fourth-felony offender; she had seven children who needed better parental guidance than
defendant had provided to-date; defendant had a drinking problem; and defendant had a troubled
upbringing. It is plausible that one or more of these facts could have justified an upward
departure, especially given that the guidelines did not adequately account for the fact that
defendant was on probation for two retail fraud convictions and that she had been on probation
for only a short period of time before she committed the instant offense, as the majority aptly
recognizes.

        Where I depart from my colleagues, however, is with the absence of any explanation by
the trial court justifying the extent of the departure—more than double the upper end of the
guidelines range (34 months versus 80 months). When a trial court departs upward, we must
evaluate not only whether reasons exist to support the departure, but also whether the extent of
the departure satisfies the principle of proportionality. As the Michigan Supreme Court
explained in People v Milbourn, 435 Mich 630, 660; 461 NW2d 1 (1990), “[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.”
        The prosecutor and majority identify a number of additional facts associated with
defendant’s criminal history that they believe justify such a significant upward departure. If
there was anything in the record to suggest that the trial court actually relied upon these
additional criminal-history facts, then I might have concurred with my colleagues in affirming
the sentence. But, the record is devoid of such assurance and we are left to guess whether the
trial court did, in fact, have these considerations in mind when sentencing defendant. Our case
law requires more for adequate appellate review of a departure sentence of this magnitude.
People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008); People v Steanhouse (On Remand),
322 Mich App 233, 243; 911 NW2d 253 (2017).

       For these reasons, I would vacate defendant’s sentence and remand for resentencing.



                                                          /s/ Brock A. Swartzle




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