                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     November 29, 2016
                Plaintiff-Appellee,

v                                                                    No. 328097
                                                                     Shiawassee Circuit Court
MONICA MARIE STEVENS,                                                LC No. 14-006595-FH

                Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

O’CONNELL, J. (dissenting).

        I respectfully dissent. I write simply to state that regarding departure sentences, People v
Steanhouse, 313 Mich App 1, 48; 880 NW2d 297 (2015), is in conflict with People v Lockridge,
498 Mich 358; 870 NW2d 502 (2015). As such, this Court is required to follow the strictures as
set forth in the Supreme Court’s Lockridge opinion. By following the strictures as set forth in
the Lockridge opinion, the defendant is not entitled to a remand for a Crosby hearing, United
States v Crosby, 397 F3d 103 (CA 2, 2005). I would affirm the well-reasoned decision of the
learned trial court.

        This case involves a departure sentence. It does not involve an Alleyne1 challenge, nor
does it involve a challenge to the mis-scoring of the guidelines. In such instances, Lockridge
compels us to review the defendant’s sentence for plain error. If no error occurs, no remand is
necessary. In the present case, no error has occurred. In my opinion, it defies logic to remand a
case for resentencing when the offense variables (OVs) are not mis-scored, when no valid
Alleyne challenge exists, and when the trial court stated valid reasons for why its chosen sentence
was more proportionate to both the offense and the offender.

        This Court reviews the trial court’s decision to depart upward from the sentencing
guidelines for reasonableness under an abuse-of-discretion standard. People v Masroor, 313
Mich App 358, 373; 880 NW2d 812 (2015). The trial court abuses its discretion when its
sentence is not proportional under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and
its progeny. Id. at 373-374.


1
    Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).


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         In imposing a departure sentence that exceeded the guideline range by nine months, the
trial court stated that the recommended sentence did not “adequately handle[] this matter” and
that it would fashion an “appropriate” sentence. The trial court explained that the guidelines did
not adequately account for defendant’s extensive history of alcohol-related crimes, including five
prior convictions of operating while intoxicated, that defendant’s blood alcohol content was three
times over the legal limit, or that defendant had “previous and persistent failure to
rehabilitate . . . .” Stevens had participated in five previous courses of alcohol abuse counseling
but continued to drink. Finally, the trial court noted that Stevens did not admit responsibility for
the crime and was not likely to be rehabilitated. The trial court specifically stated that its
sentence “is more proportionate to this offense, because it accurately reflects the aggravating
factors I’ve already discussed, and the need to impose a more severe sanction than those you’ve
already faced.”

       The recommended guidelines range for Stevens’s sentence was 0 to 13 months’
imprisonment. The trial court exceeded the guideline range by nine months and sentenced
Stevens to a term of 22 to 90 months’ imprisonment. In my opinion, this was a reasonable and
well-deserved sentence.

       The Lockridge question at issue in this case is whether Stevens, a fifth-time multiple
drunk driving offender, is entitled to be resentenced or at least entitled to a remand for a Crosby
hearing. The answer to this question depends on whether Stevens can show plain error in her
sentencing process. On appeal, Stevens does not contest the scoring of her guidelines, nor can
she establish plain error. I therefore conclude that Lockridge addresses this issue perfectly:
Stevens is not entitled to be resentenced.

       In this case, I would adopt the identical reasons to apply as stated in my dissent in People
v Shank, 313 Mich App 221; 881 NW2d 135 (2015) (O’CONNELL, J., dissenting), as follows:

       If a defendant does not challenge the scoring of his or her offense variables
       (OVs) at sentencing on Alleyne grounds, our review is for plain error affecting
       that defendant’s substantial rights. Lockridge, 498 Mich at 392. In this case,
       Shank did not challenge the scoring of his OV scores on Alleyne grounds. Our
       review is for plain error.

              To be entitled to relief under plain-error review, a defendant must
       show that the error affected the outcome of the lower court proceedings. Id.
       at 393. The Lockridge court aptly stated the application of the plain error
       doctrine in cases—like Shank’s—in which the defendant did not preserve an
       Alleyne challenge below and the trial court departed upward:

               Because [the defendant] received an upward departure sentence
               that did not rely on the minimum sentence range from the
               improperly scored guidelines (and indeed, the trial court
               necessarily had to state on the record its reasons for departing
               from that range), the defendant cannot show prejudice from any
               error in scoring the OVs in violation of Alleyne. [Id. at 394
               (emphasis altered).]

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               If a defendant’s minimum sentence involved an upward departure, that
       defendant “necessarily cannot show plain error . . . .” Id. at 395 n 31. “It
       defies logic that the court in those circumstances would impose a lesser sentence
       had it been aware that the guidelines were merely advisory.” Id.

               In this regard, the Steanhouse court’s decision to remand in that case was
       contrary to the precepts of stare decisis. As in Lockridge, the trial court in
       Steanhouse departed upward from the recommended sentencing range.
       Steanhouse, 313 Mich App at 42. The defendant in Steanhouse, like the
       defendant in Lockridge, did not challenge the scoring of his OVs on Alleyne
       grounds. Id. The Court of Appeals in Steanhouse recognized that the
       defendant could not establish a plain error under Lockridge. However, the
       Court proceeded to review the defendant’s sentence and remand for
       resentencing anyway, directly contrary to the language of Lockridge providing
       that the Lockridge defendant was not entitled to resentencing under the exact
       same circumstances.

               I would follow Lockridge without declaring a conflict panel. The reason
       is simple—this Court need not convene a conflict panel to follow a rule
       articulated by the Supreme Court, even if a decision of this Court conflicts with
       the Supreme Court’s decision. Charles A Murray Trust v Futrell, 303 Mich
       App 28, 49; 840 NW2d 775 (2013). Until the Supreme Court’s decision is
       overruled by the Supreme Court itself, the rules of stare decisis require this
       Court to follow the Supreme Court’s decision. Paige v Sterling Heights, 476
       Mich 495, 524; 720 NW2d 219 (2006). This Court simply “does not have the
       authority to recant the Supreme Court’s positions.” Murray Trust, 303 Mich
       App at 49. Under the rule of stare decisis, this Court must follow a decision
       of the Supreme Court even if another panel of this Court decided the same
       issue in a contrary fashion. Id. Because Steanhouse ignored the clear directives
       of the Michigan Supreme Court, it is against the rules of stare decisis to follow
       the procedures in that case. I cannot in good conscience violate the rules
       articulated in Lockridge.

               A remand under United States v Crosby, 397 F3d 103 (CA 2, 2005), is
       used to determine whether prejudice resulted from an error. People v Stokes,
       312 Mich App 181, 200-201; 877 NW2d 752 (2015). The Lockridge court
       stated that no prejudice could result from the type of “error” involved in this
       case. Shank cannot show plain error; therefore, he is not entitled to relief. I
       conclude that a Crosby remand is not appropriate or necessary in this case. [Id. at
       228-230 (footnote omitted).]

       I would affirm the trial court’s well-reasoned decision in this matter. The sentence is
proportionate both to the crime and the offender. No OVs have been mis-scored in violation of




                                               -3-
the Alleyne decision. No plain error has occurred. It is clearly a waste of judicial resources to
remand this case to the trial court.2

                                                             /s/ Peter D. O’Connell




2
  This Court’s recent opinion in People v Ambrose, ___ Mich App ___, ___; ___ NW2d ___
(2016), slip op at 6, further supports my position:
       Further, even if we were to assume that the trial court erred in scoring OV 9, we
       would conclude that resentencing is not required. Under People v Lockridge, 498
       Mich 358, 364-365; 870 NW2d 502 (2015), a trial court’s departure from a
       defendant’s recommended sentencing guidelines range is reviewed by this Court
       for reasonableness. Defendant has not challenged the trial court’s departure from
       the guidelines as unreasonable. In light of the facts of this case, the trial court’s
       lengthy articulation of its reasons for departing from the guidelines, and the minor
       extent of the departure, we hold that the departure was reasonable. Although in
       People v Biddles, ___ Mich App ___, ___; ___ NW2d___ (2016) (Docket No.
       326140); slip op at 4, we recently clarified the distinction between [People v
       Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006)] errors and Lockridge errors,
       Biddles did not deal with an upward departure, and we do not read Biddles as
       requiring remand for a Francisco error when we have determined (as here) that a
       sentencing departure is reasonable under Lockridge and the sentence “did not rely
       on the minimum sentence range from the improperly scored guidelines” at issue.
       Lockridge, 498 Mich at 394; see also People v Mutchie, 468 Mich 50, 52; 658
       NW2d 154 (2003) (holding that it was unnecessary to determine if a scoring error
       in OV 11 existed and required resentencing when the sentences imposed were
       departures “above the recommended range in any event, and the court expressly
       stated” the reasons for the departure).


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