                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   April 20, 2017
               Plaintiff-Appellee,

v                                                                  No. 330144
                                                                   Monroe Circuit Court
ROBERT LOUIS WALDEN,                                               LC No. 14-041572-FC

               Defendant-Appellant.


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

GLEICHER, J. (concurring in part and dissenting in part).

       The majority makes a compelling case in support of the reasonableness of the “modest”
departure sentence imposed in this case. It may well be that a poll of the judges on this Court
would yield unanimous agreement that the departure sentence was thoroughly reasonable. My
respectful disagreement centers on the rule of decision guiding the majority’s analysis, and the
standard of review the majority has employed.

         The majority concedes that the principle of proportionality supplies the analytical
framework that a trial judge must use when imposing a departure sentence. People v Smith, 482
Mich 292, 303; 754 NW2d 284 (2008). And although the majority doesn’t explicitly say so, I
assume that it would agree that “sentencing courts must justify the sentence imposed in order to
facilitate appellate review.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).
These precedents demand that a trial court justify a departure sentence by explaining why the
sentence selected better fits the crime and the offender than would a guidelines sentence.

        Here, the trial court failed to reference any grounds relevant to the principles of
proportionality when it departed from the guidelines range. While I agree that OV 9 was
correctly scored, I would remand for resentencing, tasking the trial court to explain why the
departure sentence it imposed is more proportionate to the offense and the offender than a
sentence within the guidelines. Further, I suggest that the majority has substituted its own well-
crafted rationale for a departure sentence in place of the trial court’s patently deficient
explanation. A remand would permit us to approach defendant’s sentence in a manner more
consistent with our role.




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                                                  I

       The majority acknowledges that before departing from the minimum sentencing
guidelines range, a trial court must engage in at least some reasoning consistent with the
“principle of proportionality” set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1
(1990). Our Supreme Court highlighted the integral role of proportionality analysis in People v
Babcock, 469 Mich 247, 262; 666 NW2d 231 (2003):

               In determining whether a sufficient basis exists to justify a departure, the
       principle of proportionality—that is, whether the sentence is proportionate to the
       seriousness of the defendant’s conduct and to the defendant in light of his
       criminal record—defines the standard against which the allegedly substantial and
       compelling reasons in support of departure are to be assessed.

Although the Supreme Court has eliminated “the requirement in MCL 769.34(3) that a
sentencing court that departs from the applicable guidelines range must articulate a substantial
and compelling reason for that departure,” Lockridge, 498 Mich at 365, the Court did not endorse
unexplained departures or departures predicated on improper grounds. Logically, a departure
sentence lacking a pertinent rationale is unreviewable for reasonableness or for an abuse of
discretion. “[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a
defensible result.” United States v Martin, 520 F3d 87, 96 (CA 1, 2008).

       The trial court explained the rationale for defendant Walden’s departure sentence as
follows:

       In this matter the sentencing guidelines are 43 to 107 months as . . . both attorneys
       have indicated. It’s advisory at this point in time given the Lockridge case.
       [Defendant] had three misdemeanors but he was out on bond for aggravated
       assault at the time this thing occurred. . . . [T]he jury didn’t buy the self[-]defense
       argument and I don’t buy the self[-]defense argument. You know, it just doesn’t
       make sense. I’m really disappointed that we didn’t have more people come
       forward and testify. I don’t know why they didn’t. Mr. Bentley speculated why
       they might not have but as Mr. Sims indicated all lives matter and it’s
       disappointing that they didn’t come here and tell the truth. Not testifying for one
       person or the other, but just tell the truth as to what happened.

                Now, the Lockridge case says that I don’t have to find a substantial and
       compelling reason to deviate from the guidelines anymore or I don’t have to
       elucidate those reasons. However, I think just a couple of things that came out in
       trial; you testified yourself . . . that you got stabbed four times. I don’t know if
       that’s true or not true but I don’t know why in God’s name you’d be carrying a
       knife if you were the victim of being stabbed before.

              Once this thing took place there was immediately [sic] leaving the scene,
       changing the cars and as [the prosecutor] pointed out because it struck me as well,
       you were driven to Detroit by an anonymous or random person, which I don’t
       believe in a million years. I don’t think you told the truth there and I don’t think

                                                -2-
       you really told the truth about the facts and circumstances as they went down at
       the time.

               All lives do matter. [The victim] will not see his child graduate from high
       school, get married, do all the things that you’re still going to have an opportunity
       no matter what I do, you’re still going to have an opportunity to see your children
       do. And that’s just not right and that’s just not fair but I can’t make that right and
       I can’t make it fair.

       The court advanced four general reasons for departing from the guidelines: (1) defendant
had three misdemeanor convictions and “was out on bond for aggravated assault at the time this
thing occurred;” (2) “I don’t know why in God’s name you’d be carrying a knife if you were the
victim of being stabbed before;” (3) “I don’t think you really told the truth about the facts and
circumstances as they went down at the time;” and (4):

               All lives do matter. [The victim] will not see his child graduate from high
       school, get married, do all the things that you’re still going to have an opportunity
       [to do]. And that’s just not right and that’s just not fair but I can’t make that right
       and I can’t make it fair.

        Lockridge commands us to review a departure sentence for “reasonableness.” Lockridge,
498 Mich at 391-392. We measure “reasonableness” against the principles of proportionality
detailed in Milbourn and Babcock, bearing in mind that the guidelines themselves incorporate
proportionality principles and define the presumptively reasonable sentence range. Babcock, 469
Mich at 263-264. We conduct this reasonableness review under an abuse of discretion standard.
A trial court abuses its discretion when it misinterprets or misapplies the law. Bynum v ESAB
Group, Inc, 467 Mich 280, 283; 651 NW2d 383 (2002).

      In applying the principles of proportionality, a departing court’s reliance on facts
subsumed within a defendant’s guidelines score is misplaced:

       [D]epartures are appropriate where the guidelines do not adequately account for
       important factors legitimately considered at sentencing. For example, as the
       dissent points out, a sentencing judge could legitimately depart from the
       guidelines when confronted by the unlikely prospect of a one hundred-time repeat
       offender, since the guidelines do not take such extensive criminal records into
       account. In addition, we emphasize that the guidelines should continue to reflect
       actual sentencing practice. To require strict adherence to the guidelines would
       effectively prevent their evolution, and, for this reason, trial judges may continue
       to depart from the guidelines when, in their judgment, the recommended range
       under the guidelines is disproportionate, in either direction, to the seriousness of
       the crime. [Milbourn, 435 Mich at 657.][1]



1
 In this same vein, the Milbourn Court quoted approvingly from Judge Shepherd’s concurring
opinion in People v Rutherford, 140 Mich App 272, 280-281; 364 NW2d 305 (1985):

                                                -3-
MCL 769.34(3)(b) similarly provides:

       The court shall not base a departure on an offense characteristic or offender
       characteristic already taken into account in determining the appropriate sentence
       range unless the court finds from facts contained in the court record . . . that the
       characteristic has been given inadequate or disproportionate weight.

Here, the trial court relied on facts either accounted for by the guidelines or irrelevant to the
principles of proportionality.

        Under PRV 5, defendant received 10 points for having three or four prior misdemeanor
convictions. Under PRV 6, five points were scored because defendant was on bond and awaiting
adjudication for a misdemeanor at the time he committed the sentencing offense. Perhaps these
scores do not adequately account for the egregiousness of defendant’s prior record. However,
the trial court offered no reasoning that would allow us to reach that conclusion. The majority
concedes this fact but deliberately ignores it; in the majority’s view, “the trial court clearly felt
this factor was given inadequate weight.” I decline to read the trial court’s mind or put words in
its mouth, and respectfully suggest that doing so contravenes our standard of review. How can
we determine whether the trial court abused its discretion when we do not know how it weighed
the facts and how the facts bore on the nature of the offense and offender?

       Under OV 1, defendant was scored 25 points for having stabbed the victim (the highest
score available for that variable), and under OV 2, five points were assessed because defendant
used a knife. Given that defendant’s possession of a knife was accounted for in the guidelines
(not once, but twice), what made this fact especially relevant to the seriousness of the offense or



               “If the guidelines did set binding limits on the trial court’s discretion, I
       would be constrained to remand when the judge states reasons for departing from
       the guidelines which are already considered therein. The problem we face in
       these cases is that the guidelines include factors such as the severity of the
       offense, the past record of the defendant, and the sentences historically imposed
       throughout the state. If the trial judge justifies a departure from the guidelines by
       stating that he does so because of the nature of the offense and the record of the
       offender, the trial court has considered these factors twice. If we say that the trial
       judge may, in an individual case, place greater emphasis on any given factor by
       simply announcing on the record his intention to do so, the guidelines become
       nothing more than a litany of magic words used to mask the imposition of
       subjective, arbitrary and disparate sentences—the very problem which . . . the
       guidelines were designed to eliminate. If the sentencing judge is not held to have
       abused his discretion by emphasizing a factor already included in the guidelines
       as a basis for departing from them, and if the record is devoid of evidence
       showing whether a sentence beyond the guidelines is disparate, we are furnished
       with no basis other than our own subjective reactions upon which to base a
       decision. The risk of imposing an arbitrary and disparate sentence is thus shifted
       from the trial courts to the Court of Appeals.” [Milbourn, 435 Mich at 658-659.]

                                                -4-
the character of the offender? The trial court has not told us. It’s not our job to guess, as doing
so resembles de novo rather than discretionary review.

       The trial court’s third ground for departure was that it did not believe defendant’s
testimony. I would hold that without further elaboration, this constitutes an improper ground for
departure, as the court failed to explain whether defendant willfully offered false testimony that
was material to the case. See People v Adams, 430 Mich 679, 693; 425 NW2d 437 (1988). The
jury apparently credited defendant’s testimony to some extent, as it convicted defendant of
voluntary manslaughter rather than murder. The trial court did not explain why its disbelief of
defendant’s testimony demonstrated that defendant was incorrigible, or harbored some other
relevant character flaw. Finally, the trial court’s statement prefaced with “all lives do matter”
touches on the seriousness of the offense. But the same statement can be made in all homicide
cases, and in my view these feelings do not supply a proper ground for departure from the
sentencing range selected by the Legislature.

                                                 II

       Further, I respectfully disagree with the majority’s determination that the departure
sentence is reasonable. Absent any reasoning consistent with appropriate grounds for departure,
I would hold that we have nothing to review.

        It is the trial court’s responsibility to justify a departure sentence. We review the court’s
rationale under an abuse of discretion standard, focusing on the sentence’s reasonableness.
Lockridge, 498 Mich at 392. Where there is no explanation for a departure that qualifies as
relevant, there has been an abuse of discretion. Unlike the majority, I would refrain from finding
a departure sentence reasonable by employing a form of de novo review to fill in the yawning
gap created by the trial court’s failure to explain its rationale in legally appropriate manner. The
majority implies that we may circumvent the trial court’s omission by speaking for the trial
court, supplanting an inadequate record with our subjective view of the reasonableness of
defendant’s sentence. As appellate judges, we respect the role of trial courts by refraining from
substituting our judgment for theirs. “[A]bsent any explanation, we cannot do our job as an
appellate court: we would be placed in the position of offering our own justifications for the
sentence rather than reviewing the district court’s reasons.” United States v Boultinghouse, 784
F3d 1163, 1179 (CA 7, 2015).

        Finally, I fear that the majority has selected an easy case as a prototype for future
appellate over-reaching. Defendant was charged with open murder and convicted of voluntary
manslaughter. He killed a young man. His self-defense claim was not terribly convincing. The
upward departure was only 13 months (although I am certain that even small differences in a
sentence matter to a defendant). Given these facts, it is easy to look the other way when a trial
court reaches a result that may well be just, but fails to explain how it got there in a manner
approved by our Legislature. It is equally easy for us to abandon our responsibility to review
only that which is truly reviewable—why not regard the trial court’s omission as essentially
harmless when we would have sentenced him in a similar way?

        Absent an explanation that conforms to the rule of decision reflected in our sentencing
principles, the trial court’s sentence is improper and our review equally so. Whether two or three

                                                -5-
appellate judges feel a departure sentence is well-deserved is a retrospective and fundamentally
subjective determination.

        Proceeding down the majority’s path is the first step on a slippery slope that would
permit appellate judges to cherry-pick a record, finding reasons to enforcer our own judgments
about why a departure was justified.. Smith, 482 Mich at 302. And the next case may not be
quite as straight-forward, opening the door to a patchwork of inconsistent appellate judgments
concerning the contours of “reasonableness” and a panoply of subjective and widely inconsistent
sentences.



                                                           /s/ Elizabeth L. Gleicher




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