                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 6, 2018
               Plaintiff-Appellee,

v                                                                  No. 328736
                                                                   Wayne Circuit Court
STEVEN SMITH,                                                      LC No. 15-001977-01-FH

               Defendant-Appellant.


                                         ON REMAND

Before: RIORDAN, P.J., and FORT HOOD and SERVITTO, JJ.

PER CURIAM.

        This case returns to this Court on remand from the Michigan Supreme Court. In an order
entered October 3, 2017, the Michigan Supreme Court, in lieu of granting leave to appeal,
reversed “that part of the judgment of the Court of Appeals remanding this case to the trial court
for proportionality review and for a hearing pursuant to People v Lockridge, 498 Mich 358 [; 870
NW2d 502] (2015),” and remanded the case to this Court “for plenary review of the defendant’s
claim that his sentence was disproportionate under the standard set forth in People v Milbourn,
435 Mich 630, 636 [; 461 NW2d 1] (1990). See People v Steanhouse, 500 Mich 453 [, 460-461;
902 NW2d 327 (2017)].” People v Smith, 501 Mich 876; 901 NW2d 873 (2017). The Michigan
Supreme Court denied leave to appeal in all other respects. Id. We reverse and remand for
further proceedings consistent with this opinion.

                          I. FACTS AND PROCEDURAL HISTORY

        Defendant was convicted, following a bench trial, of first-degree home invasion, MCL
750.110a(2). The facts at defendant’s bench trial revealed that defendant forced his way into his
mother’s home by forcefully pushing his sister out of the way after his sister opened the door to
let the family dog out. While in the home, and before being apprehended by the police,
defendant engaged in a verbal assault on his mother and two sisters, demanding money,
presumably to support his drug addiction. Defendant also forcibly grabbed his two sisters during
the home invasion, in an attempt to coerce them into giving him money. On July 21, 2015, the
trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to life
imprisonment.



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        In imposing sentence, the trial court scored the guidelines for defendant’s conviction of
first-degree home invasion, which is a class B offense. MCL 777.16f. Defendant received a
total OV score of 30 points, which, combined with his 67 prior record variable (PRV) points,
placed him in the E-III cell of the Class B sentencing grid, for which the minimum sentence
range is 78 to 260 months for a fourth-offense habitual offender. MCL 777.63. Thus, the trial
court exceeded the guidelines range by sentencing defendant to life imprisonment. See e.g.
People v Greaux, 461 Mich 339, 345; 604 NW2d 327 (2000) (recognizing that the Court of
Appeals erred in concluding that a life sentence is “within the guidelines” for the offenses at
issue where the relevant statutes set forth life imprisonment as the statutory maximum).1 In
imposing sentence, the trial court relied on this Court’s decision in People v Reese, 242 Mich
App 626; 619 NW2d 708 (2000), aff’d 466 Mich 440 (2001), where this Court upheld a sentence
of life imprisonment for the defendant, a habitual offender convicted of armed robbery.
Specifically, drawing an analogy to Reese, the trial court noted defendant’s multiple prior felony
convictions, several of which were for assaultive offenses, as well as the fact that he was on
parole as the time of the instant offense for first-degree home invasion and multiple counts of
felonious assault involving his mother and two sisters. While cognizant of defendant’s mental
health issues, the trial court also expressed concern with defendant’s inability to “conform his
conduct according to the law.”

        On January 10, 2017, this Court issued its opinion affirming defendant’s conviction, but
remanding for “further sentencing proceedings consistent with Lockridge, Crosby[2] and [People
v] Steanhouse, [313 Mich App 1; 880 NW2d 297 (2015).]” People v Smith, unpublished per
curiam opinion of the Court of Appeals, issued January 10, 2017 (Docket No. 328736), p 5.
Defendant filed an application for leave to appeal his sentence in the Michigan Supreme Court,
requesting remand for resentencing pursuant to Lockridge. As previously referenced, the
Michigan Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for
reconsideration in light of its recent decision in Steanhouse. In Steanhouse, the Michigan
Supreme Court rejected application of the Crosby remand procedure to allow the trial court to
reconsider the reasonableness of a departure sentence under the standard set forth in Milbourn,
and instead held that “the proper approach is for the Court of Appeals to determine whether the
trial court abused its discretion by violating the principle of proportionality.” Steanhouse, 500
Mich at 461.

                                         II. ANALYSIS

        “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” Lockridge, 498 Mich at 392. When reviewing a departure
sentence for reasonableness, this Court must determine “whether the trial court abused its
discretion by violating the ‘principle of proportionality’ set forth in [Milbourn], ‘which requires


1
  At the time defendant was sentenced, a trial court could depart upward from the minimum
guidelines range only for substantial and compelling reasons. See MCL 769.34(3). The trial
court, however, did not indicate that it was imposing a departure sentence.
2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.’ ” Steanhouse, 500 Mich at 459-460. Under the
Milbourn standard, “ ‘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.’ ”
Steanhouse, 500 Mich at 475, quoting Milbourn, 435 Mich at 661. Factors that may be
considered by a trial court under the proportionality standard include, but are not limited to:

       (1) the seriousness of the offense; (2) factors that were inadequately considered by
       the guidelines; and (3) factors not considered by the guidelines, such as the
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [People v Walden, 319 Mich App 344, 352-353; 901
       NW2d 142 (2017), quoting Steanhouse, 313 Mich App at 46.]

If this Court “determines that [the] trial court has abused its discretion in applying the principle
of proportionality by failing to provide adequate reasons for the extent of the departure sentence
imposed, it must remand to the trial court for resentencing.” Steanhouse, 500 Mich at 476.

        Having closely reviewed the trial court’s rationale for imposing a life sentence, we
conclude that the trial court’s reasons for departure do not confirm that defendant’s life sentence
meets the standard of proportionality pursuant to Milbourn, and is thus reasonable under
Lockridge. Because the guidelines “remain a highly relevant consideration in a trial court’s
exercise of sentencing discretion[,]” Lockridge, 498 Mich at 391, it is appropriate to compare the
trial court’s stated reasons for the sentence imposed with the scored OVs and PRVs to determine
whether those reasons are already accounted for in the guidelines. Put another way, a relevant
inquiry in the reasonableness review is whether there are “circumstances that are not adequately
embodied within the variables used to score the guidelines.” Milbourn, 435 Mich at 659-660.

        In imposing a life sentence, the trial court relied on defendant’s extensive criminal
history, discussing the number of his prior convictions and his parole status at the time of the
offense, and also noted that two of his victims were vulnerable. However, these reasons are
accounted for in the scoring of the guidelines, and the trial court did not provide an adequate
explanation for why they were given inadequate weight. See Milbourn, 435 Mich at 659 (the
trial court must consider whether the circumstances of a case are inadequately addressed by the
guidelines).    As the trial court noted, defendant “has [ten] identifiable adult felony
convictions[,]” “has been convicted five times for felonious assault, and once for domestic
violence.” At the time of the offense giving rise to this appeal, “[defendant] was on parole from
a 2004 conviction for home invasion in the first degree and three counts of felonious assault
against these very same three women—his mother and two sisters.” However, defendant’s prior
criminal record and parole status are reflected in the scoring of PRV 1, for which defendant
received 25 points for “1 prior high severity felony conviction[,]” MCL 777.51(1)(c), PRV 2, for
which defendant received 30 points for “4 or more prior low severity felony convictions[,]”
MCL 777.52(1)(a), PRV 5, for which he received two points for “1 prior misdemeanor
conviction[,]” MCL 777.55(1)(e), and PRV 6, for which he received 10 points for being on
parole, MCL 777.56(1)(d). In addition, the trial court relied on the fact that defendant’s mother
is “elderly, and one sister is wheel-chair bound.” But as a result of his mother’s age and his
sister’s physical limitations, defendant received 10 points for OV 10 for exploitation of “a

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victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or
[where] the offender abused his or her authority status[,]” MCL 777.40(1)(b).

        We acknowledge the trial court considered factors that are not encompassed by the
guidelines. For example, the trial court considered defendant’s poor potential for rehabilitation
and his misconduct while in custody, observing that “[h]is adjustment to parole is described as
poor[,] and his behavior while incarcerated is described as assaultive.” The trial court noted that
defendant “has been sentenced so far to one prison term, two jail sentences, and five probation
sentences[,]” and that “defendant is simply unable to conform his conduct according to the law.’”
The trial court also properly considered the relationship between defendant and his victims. The
Milbourn Court explained that a prior relationship between the offender and the victim can be
either a “very mitigating circumstance or a very aggravating circumstance, depending upon the
history of interaction between the parties.” Milbourn, 435 Mich at 660-661. In this case, the
trial court viewed it as an aggravating circumstance because the victims are defendant’s mother
and sisters, defendant had assaulted them in the past, and these women “lack any real sense of
security in their home when the [d]efendant is not incarcerated.”

        In sum, we conclude that three of the trial court’s stated reasons for imposing a departure
sentence (i.e., defendant’s prior criminal record, parole status, and the vulnerability of the
victims) were improper. On the basis of the trial court’s remaining articulated reasons, it is
unclear whether the court would have departed solely based on those reasons, particularly where
the trial court did not express recognition that the life sentence was a guideline departure.
Further, even where a departure sentence is warranted, “the extent of the departure (rather than
the fact of the departure itself) may embody a violation of the principle of proportionality.”
Milbourn, 435 Mich at 660. Therefore, “the trial court’s articulation of the reasons for imposing
a departure sentence must explain how the extent of the departure is proportionate to the
seriousness of the circumstances surrounding the offense and the offender.” People v
Steanhouse (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 318329);
slip op at 3. In this case, the trial court provided reasons for the sentence imposed, but it did not
acknowledge that it was imposing a departure sentence, and did not connect the reasons it
provided to the extent of the departure chosen. Instead, the trial court relied on defendant’s
status as a fourth-offense habitual offender, and this Court’s decision affirming the imposition of
a life sentence for a habitual offender in Reese. Again, however, although MCL 769.12(1)(b)
authorized a sentence of life imprisonment in light of defendant’s status as a fourth-offense
habitual offender, the fact that a given sentence is within the range of authorized punishment
does not itself establish that it satisfies the principle of proportionality. The trial court was still
required to provide reasons, grounded in the concept of proportionality, for the imposition of a
life sentence and to articulate adequate reasons sufficiently justifying the extent of the departure
imposed. Steanhouse (On Remand), ___ Mich App at ___; slip op at 2, 3. The trial court did not
comply with these requirements and resentencing is required.

                                        III. CONCLUSION




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        We reverse and remand for proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                        /s/ Michael J. Riordan
                                                        /s/ Karen M. Fort Hood
                                                        /s/ Deborah A. Servitto




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