            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 30, 2019
              Plaintiff-Appellee,

v                                                                 No. 342284
                                                                  Macomb Circuit Court
MELISSA ANN WEST,                                                 LC No. 2017-000488-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                 No. 343853
                                                                  Macomb Circuit Court
MELISSA ANN WEST,                                                 LC No. 2017-000490-FH

              Defendant-Appellant.


Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

        These consolidated appeals involve defendant’s sentences for her convictions in two
separate cases. In LC No. 2017-000488-FC, a jury convicted defendant of four counts of
felonious assault, MCL 750.82. The trial court sentenced defendant as a third-offense habitual
offender, MCL 769.11, to a prison term of five to eight years for each felonious assault
conviction, to be served concurrently. In LC No. 2017-000490-FH, defendant pleaded guilty to
witness bribery, MCL 750.122, and the trial court sentenced her as a third-offense habitual
offender to 25 months to 8 years in prison. The witness bribery did not arise from the felony
assault case, but rather was from an unrelated case. In each of the two cases, the trial court
ordered that the sentences for felonious assault were to be served consecutively to the sentence
for witness bribery.



                                              -1-
        In Docket No. 342284, defendant appeals as of right the sentences in the felonious assault
case, and in Docket No. 343853, defendant appeals by delayed leave granted the sentence in the
witness bribery case. We affirm the base sentences but remand to allow the trial court either (1)
to articulate its authority and basis for imposing consecutive sentences or (2) to make the
sentences concurrent.

                                      I. BACKGROUND

        Defendant’s felonious assault convictions arose from her conduct of discharging a
shotgun at the Clinton Township home where her former boyfriend, his girlfriend, and two of the
girlfriend’s three children were located on September 13, 2016.

        Defendant’s plea-based conviction of witness bribery arose from her conduct on August
25, 2016 of offering her former boyfriend $10,000, in exchange for his agreement to not testify
in a separate case in which she was accused of aggravated stalking for events that occurred in
June 2016.

       In both appeals, defendant challenges only her sentences.

                        II. THE FELONIOUS ASSAULT SENTENCES

       In the felonious assault case, defendant challenges the reasonableness of the trial court’s
sentences of five to eight years for her convictions of felonious assault. The minimum
sentencing guidelines range for the offense of conviction was 12 to 36 months for a third-offense
habitual offender. MCL 777.67; MCL 777.21(3).

        “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). When reviewing an out-of-guidelines sentence for reasonableness, we must determine
“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.’ ” People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327
(2017); see also People v Dixon-Bey, 321 Mich App 490, 521; 909 NW2d 458 (2017), lv
pending.

        Although the sentencing guidelines are only advisory, Lockridge, 498 Mich at 365, “the
guidelines ‘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.’ ”
Steanhouse, 500 Mich at 474-475, quoting Lockridge, 498 Mich at 391. However, “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 472, 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

                                               -2-
       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) (citation omitted).]

       In this case, the trial court found that the calculated guidelines range of 12 to 36 months
was “not proportionate to [defendant’s] conduct.” The court explained:

       The policy of the State of Michigan favors individualized sentencing for every
       convicted defendant. The sentence must be tailored to fit the particular
       circumstances of the case as well as the defendant.

                                              * * *

       I cannot minimize how egregiously dangerous and how you imperiled not just the
       two adults in that trailer, but [the] children that were—were in that trailer and you
       had had every reason to believe that at least one of those children was there, if not
       all of them, and the two adults, you’re very lucky that no one was actually struck
       by these—by these projectiles, these bullets that you had fired into—into the
       trailer. I also think that you’re very lucky that the prosecution didn’t charge you
       with the crime of intentional discharge of a firearm at a dwelling or occupied
       structure. That seemed to be a no-brainer. It’s a 10-year offense. With the
       habitual 3rd, that would make it a 30-year offense.[1] Right now, you’re convicted
       of an eight-year offense. The elements of that crime are that you just discharged a
       firearm into a potentially occupied structure. This is a case in which you knew
       that the structure was occupied and you did so in reckless disregard for the safety
       of any individual therein. The guidelines, had you been convicted of that, would
       have been 34 to 83 months.[2]

The court reiterated that it believed that the five-year minimum sentence it imposed “is a
proportionate sentence to—to the conduct that you did.”

        The trial court did not abuse its sentencing discretion. The court previously had
recognized that the actual minimum sentencing guidelines range was 12 to 36 months, thereby
satisfying the requirement of consulting and taking into consideration the guidelines. See


1
  We note that the trial court was incorrect in its calculation of the potential maximum sentence.
MCL 769.11 provides that when determining a maximum sentence for a third-offense habitual
offender, a court may sentence a defendant up to “twice the longest term prescribed by law for a
first time conviction of that offense.” Thus, because discharging a firearm at a dwelling is
punishable for up to 10 years, a court may sentence a third-offense habitual offender up to 20
years maximum for this offense.
2
  As discussed later in this opinion, the guidelines calculation would have been 34 to 100 months
for a third-offense habitual offender.


                                               -3-
Steanhouse, 500 Mich at 474-475; Lockridge, 498 Mich at 391. But the trial court went on to
explain why it found that guidelines range inadequate. The court noted that defendant’s conduct
was identical to the conduct described by the statute prohibiting and penalizing the discharge of
a firearm at a dwelling. See MCL 750.234b.3 The court also noted the policy of this state, as
evidenced through its legislative acts, is that the conduct of shooting a firearm at a dwelling is
considered a much more severe or dangerous crime than felonious assault. While the nominal
maximum penalty for felonious assault is four years, MCL 750.82(1), the maximum penalty for
discharging a firearm at a dwelling is 10 years, MCL 750.234b(1). Thus, for a person being
sentenced as a third-offense habitual offender under MCL 769.11, as defendant was here, the
maximum sentences for these crimes is eight years for felonious assault and 20 years for
discharging a firearm at a dwelling. See Note 1 of this opinion. The court also noted that
because of the inherent severity of the crime of discharging a firearm at a dwelling (a class D
offense, see MCL 777.16m, as opposed to the class F offense of felonious assault, see MCL
777.16d),4 the minimum sentencing guidelines range for discharging a firearm at a dwelling
would have been much higher. Indeed, with all of defendant’s prior record variable scores and
offense variable scores remaining the same, the minimum sentencing guidelines range for
discharging a firearm at a dwelling would have been 34 to 100 months.5 See MCL 777.21(3)(b);
MCL 777.65.

         The trial court therefore determined that the calculated guidelines range for defendant’s
convictions did not adequately reflect the severity of defendant’s conduct, and thus were
disproportionately low. Given the analysis by the trial court quoted above, we cannot say that
the trial court abused its discretion. Indeed, with the sentencing guidelines now advisory, this is
precisely the type of discretionary decision-making trial courts are now empowered and required
to undertake. See Steanhouse, 500 Mich at 474-475 (requiring sentences to be proportionate to
the seriousness of the circumstances surrounding the offense and offender and stating that key is
not whether a particular sentence falls outside or within the guidelines range). And given that


3
    MCL 750.234b(1) provides:
         Except as otherwise provided in this section, an individual who intentionally
         discharges a firearm at a facility that he or she knows or has reason to believe is a
         dwelling or a potentially occupied structure, whether or not the dwelling or
         structure is actually occupied at the time the firearm is discharged, is guilty of a
         felony punishable by imprisonment for not more than 10 years or a fine of not
         more than $10,000, or both.
4
  The Legislature further has identified the discharging of a firearm at a dwelling as a “public
safety” crime, while felonious assault is a crime against an “individual.” MCL 777.16d; MCL
777.16m.
5
  As previously indicated, the trial court mentioned that the guidelines range in this hypothetical
scenario would have been 34 to 83 months, but that range would have been applicable for a
second-offense habitual offender, not a third-offense habitual offender, such as defendant. See
MCL 777.21(3); MCL 777.65.


                                                 -4-
pursuant to the Legislature’s directive, other people whose behavior was identical to defendant’s
normally would be sentenced to a minimum term of imprisonment of anywhere from three years
to over eight years, it further shows that defendant’s minimum sentence of five years is indeed
proportionate. Cf. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).6

       It is important to stress that, although the trial court referred to another charge that would
have accurately reflected defendant’s conduct, the trial court confined defendant’s ultimate
sentence to the maximum penalty of the convicted offense. The crime of felonious assault has an
eight-year maximum penalty of imprisonment, and defendant’s sentence of five to eight years’
imprisonment does not run afoul of that maximum.

        Therefore, for the foregoing reasons, we hold that the trial court did not abuse its
discretion in imposing base sentences of five to eight years’ imprisonment for defendant’s
felonious assault convictions.

                              III. CONSECUTIVE SENTENCING

        In both appeals, defendant challenges the trial court’s decision to order that the felonious
assault sentences and the sentence for witness bribery be served consecutively. The prosecutor
concedes, and we agree, that remand for further proceedings is necessary.

        “In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819
NW2d 55 (2012) (quotation marks and citation omitted). The parties agree that the trial court
apparently relied on the witness bribery statute, MCL 750.122(11), as authority for ordering
consecutive sentencing. This statute provides that “[t]he court may order a term of imprisonment
imposed for violating this section to be served consecutively to a term of imprisonment imposed
for the commission of any other crime including any other violation of law arising out of the
same transaction as the violation of this section.” MCL 750.122(11) (emphasis added).

        However, the witness bribery statute did not give the trial court authority to order the
witness bribery sentence to be served consecutively to the felonious assault sentences.
Defendant’s witness bribery conviction arises from her conduct on August 25, 2016, when she
offered a bribe to her former boyfriend to deter him from coming to court to testify against her in
a case in which she was charged with aggravated stalking for events that occurred in June 2016.
The September 2016 events giving rise to the felonious assault convictions in this case had not
yet occurred. Because the felonious assault crimes did not arise out of the same transaction as
the witness bribery violation, consecutive sentencing for those offenses was not authorized under
MCL 750.122(11). The parties do not suggest, and the trial court did not specify, if any other



6
  We recognize that the Michigan Supreme Court has held oral argument and has taken under
advisement the question of whether to grant leave from this Court’s decision in Dixon-Bey, 321
Mich App 490, which potentially could affect the ability of courts to sentence based on conduct
which did not result in a conviction. See People v Dixon-Bey, 501 Mich 1066 (2018).


                                                -5-
statutory authority for ordering consecutive sentences might exist in this case.         Therefore,
remand is necessary.

        Furthermore, to the extent that the trial court may have had discretion to impose
consecutive sentences under some other statute, a trial court must “articulate on the record the
reasons for each consecutive sentence imposed.” People v Norfleet, 317 Mich App 649, 664-
665; 897 NW2d 195 (2016). The court is required to “give particularized reasons” when
imposing a consecutive sentence. Id. at 666. The record discloses, and the prosecutor concedes,
that the trial court failed to articulate any reasons for imposing consecutive sentences. Therefore,
remand also would be required for this purpose.

                                       IV. CONCLUSION

        We affirm defendant’s base sentences for felonious assault. However, we vacate the
imposition of consecutive sentences. On remand, the trial court may not order consecutive
sentencing in the felonious assault case, LC No. 2017-000488-FC, without specifying the
statutory authority for allowing consecutive sentencing. If the court determines that consecutive
sentencing is authorized, it must articulate its rationale for ordering consecutive sentences.
Similarly, if the court determines that statutory authority exists for ordering consecutive
sentencing in the witness bribery case, LC 2017-000490-FH, it must articulate its rationale for
ordering consecutive sentencing. Conversely, if the court determines that consecutive sentencing
is not authorized in either instance, it shall issue a corrected judgment of sentence that reflects
that defendant’s witness bribery sentence is to be served concurrently with her other sentences.7

        Remanded for further proceedings consistent with this opinion.          We do not retain
jurisdiction.

                                                             /s/ Jonathan Tukel
                                                             /s/ Michael J. Riordan




7
  In Docket No. 343853, the prosecutor asserts that the trial court should have ordered
defendant’s sentence for witness bribery to be served consecutively with her sentence for
aggravated stalking in LC No. 2017-000489-FH and requests that this Court remand “to correct
the issue of the cases involved related to the issue of consecutive sentencing[.]” Because the
aggravated stalking case is not before us and because the prosecutor did not file a cross-appeal,
we decline to address the propriety of consecutive sentencing as between the witness bribery and
aggravated stalking cases.


                                                -6-
