             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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED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 24, 2020
               Plaintiff-Appellee,

v                                                                     No. 346248
                                                                      Kent Circuit Court
DOUGLAS JAMES CRYSTAL, JR.,                                           LC No. 17-010774-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and GLEICHER and M. J. KELLY, JJ.

MARKEY, P.J. (dissenting).

        Defendant was sentenced to a minimum term of 10 years’ imprisonment for offenses
involving his decision to drink and then drive while drunk at speeds of up to 91 miles per hour. He
then hit another vehicle, killing a young mother who had her twin 5 year old sons with her. The
children suffered catastrophic, lifelong injuries, and their lives are forever ruined. A sentence of
10 years in prison for the destruction of this family is certainly not disproportionate or an abuse of
discretion. Because it is fair and just on every level, I would affirm defendant’s sentences.
Accordingly, I dissent.

       We review for reasonableness “[a] sentence that departs from the applicable guidelines
range.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). In People v Steanhouse,
500 Mich 453, 459-460; 902 NW2d 327 (2017), our Supreme Court provided elaboration on the
“reasonableness” standard, stating:

               [T]he proper inquiry when reviewing a sentence for reasonableness is
       whether the trial court abused its discretion by violating the “principle of
       proportionality” set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
       (1990), “which requires sentences imposed by the trial court to be proportionate to
       the seriousness of the circumstances surrounding the offense and the offender.”

       Factual findings related to a departure must be supported by a preponderance of the
evidence and are reviewed for clear error. People v Lawhorn, 320 Mich App 194, 208-209; 907
NW2d 832 (2017). For purposes of sentencing, “a court may consider all record evidence,



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including the contents of a PSIR,[1] plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015).

       The key test is not whether a sentence departs from or adheres to the guidelines range, but
whether the sentence is proportionate to the seriousness of the matter. Steanhouse, 500 Mich at
472. “The premise of our system of criminal justice is that, everything else being equal, the more
egregious the offense, and the more recidivist the criminal, the greater the punishment.” People v
Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003). Sentencing judges are “entitled to depart
from the guidelines if the recommended ranges are considered an inadequate reflection of the
proportional seriousness of the matter at hand.” Milbourn, 435 Mich at 661. A sentence within
the guidelines might be disproportionality lenient. Id. “Where a defendant’s actions are so
egregious that standard guidelines scoring methods simply fail to reflect their severity, an upward
departure from the guidelines range may be warranted.” People v Granderson, 212 Mich App
673, 680; 538 NW2d 471 (1995). In People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297
(2015), aff’d in part, rev’d in part on other grounds 500 Mich 453 (2017), this Court indicated:

                 Factors previously considered by Michigan courts under the proportionality
          standard included, among others, (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. [Citations omitted.]

        “[A] trial court must justify the sentence imposed in order to facilitate appellate review,
which includes an explanation of why the sentence imposed is more proportionate to the offense
and the offender than a different sentence would have been.” People v Dixon-Bey, 321 Mich App
490, 525; 909 NW2d 458 (2017) (quotation marks and citations omitted). When making a decision
to depart from the advisory guidelines range, a trial court must sufficiently articulate the reasons
or justification for the departure. See Steanhouse, 500 Mich at 470. We note that recently our
Supreme Court held “that due process bars sentencing courts from finding by a preponderance of
the evidence that a defendant engaged in conduct of which he was acquitted.” People v Beck, __
Mich __, __; __ NW2d __ (2019); slip op at 22.

        The majority devotes much time dissecting the word “accident” and criticizing the trial
court’s statement that what occurred in this case was not an accident when viewed in context of
how it occurred. In its opening paragraph, the majority contends that the “court justified the
departure sentence by repeatedly emphasizing that defendant intended the horrific results of the
accident, a fact unsupported in the record.” This is an unfair, highly parsed, and out of context
mischaracterization of the trial court’s remarks. When the court’s words are read in context of its
sentencing comments, it is quite evident that the court was simply expressing that defendant’s
decisions to drink to excess and then drive while drunk at outrageous speeds were intentional
decisions, not accidental, and absent those extremely poor decisions, the young mother and her
children would not have been killed and injured. No complete and fair review of this sentencing
could make one reasonably conclude that the trial court either stated or believed that defendant


1
    PSIR stands for presentence investigation report.


                                                  -2-
intended to kill and severely injure the victims. Of course he did not. But he did choose and
intentionally did drive while drunk and at speeds in excess of 90 m.p.h.

       Moreover, the ultimate reason for the trial court’s determination to depart from the
guidelines was not tied to the court’s discussion of whether this was an accident; rather, the court
departed upwardly in its sentence because the guidelines did not adequately take into account the
seriousness of the harm the victims suffered. After the court discussed the guidelines range and
immediately before imposing sentence, it stated:

               But, quite frankly, I don’t believe those Guidelines take into effect the
        seriousness of the nature of the injuries, that you killed this person, and what you’ve
        done to these two little boys, as I’ve already indicated.

Earlier in its ruling, the court, in reference to the victims, stated that “[t]hese are the most egregious
injuries that I have ever seen.” The court proceeded to discuss the nature of the injuries.

         The presentence investigation report (PSIR) indicated that one of the boys is in 24-hour
nursing care, is confined to a wheelchair, cannot talk, eat, or do anything for himself, recognizes
no one, had his retinas detach in the crash, and needed teeth pulled because “he kept biting through
his lip.” The record also reflected that the other child suffered a traumatic brain injury. The PSIR
noted comments by a relative that the children’s “lives will never be the same again” and that “her
family’s lives have been changed forever.” The majority acknowledges that defendant’s drunk
driving “severely and permanently” injured the twins.

        In view of the death of the children’s mother, the seriousness of the injuries suffered by the
wheelchair-bound child who is and will be entirely dependent on others to meet his basic needs to
survive for the remainder of his life, and the life-altering brain injury to his brother, I, like the trial
court, can only conclude that the 10-year minimum sentence was proportional. In fact, one could
even reasonably conclude that the minimum sentence was overly lenient. None of the offense
variables (OVs) takes into consideration the full extent of the seriousness of the children’s
permanent catastrophic physical injuries in unison with consideration of the death of the
children’s mother. While the death of the children’s mother was taken into account in assessing
OV 3, MCL 777.33(1)(a), the children’s horrific, permanent injuries in addition to their mother’s
death were not considered for scoring the two death-related offenses. See MCL 257.617(3); MCL
257.625(4)(a). Moreover, concurrent sentencing on the lesser offense of operating a vehicle while
intoxicated causing serious impairment of a body function, MCL 257.625(5)(a), has no meaningful
impact on the actual prison time defendant will served.2 OV 5, MCL 777.35, merely takes into
account psychological injury to the victim’s family. Similarly, OV 9, MCL 777.39, only considers
the number of victims. Consequently, I too find that the sentencing guidelines are woefully




2
  Moreover, the threshold to establish the crime of operating a vehicle while intoxicated causing
serious impairment of a body function is much less demanding in comparison to the injuries the
wheelchair-bound child actually suffered. See MCL 257.58c(a) (a serious impairment can be
shown, for example, merely by proving that the victim lost the use of a single limb).


                                                   -3-
inadequate to address the particular facts of this case—drunk driving resulting in the death of a
young mother and severe and permanent injuries to her two children.

       I would hold that the trial court did not abuse its discretion by imposing a sentence greater
than the minimum sentence guidelines range; therefore I would uphold defendant’s 10-year
minimum sentence. This sentence is proportionate to the seriousness of the crime.



                                                             /s/ Jane E. Markey




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