                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 27, 2017
               Plaintiff-Appellee,

v                                                                    No. 331777
                                                                     Oakland Circuit Court
IESHIA DANIELLE BARNES,                                              LC No. 2015-254743-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ.

PER CURIAM.

       Defendant, while intoxicated with a blood alcohol level of around .155, operated a motor
vehicle, barreled through a busy city intersection against a red light and around stopped traffic at
an excessive rate of speed, and then slammed into a minivan, causing serious injuries to three of
the minivan’s occupants and the death of the minivan’s driver’s three-year-old daughter.
Following a jury trial, defendant was convicted of operating a motor vehicle while intoxicated
causing death (OWI-death), MCL 257.625(4)(a); the jury rejected a charge of second-degree
murder, MCL 750.317. Defendant had earlier entered a no-contest plea with respect to three
counts of operating a motor vehicle while intoxicated causing serious impairment of a body
function (OWI-serious impairment), MCL 257.625(5)(a). Departing from the guidelines
minimum sentence range, the trial court imposed a sentence of 10 to 15 years’ imprisonment for
the OWI-death conviction. Defendant was also sentenced to concurrent terms of two to five
years’ imprisonment for the OWI-serious impairment convictions. She appeals as of right,
challenging the proportionality of her sentence for OWI-death. We conclude that the trial court
did not abuse its discretion, considering that the sentence was reasonable, i.e., proportionate,
under the circumstances. Accordingly, we affirm.

        Defendant had a prior record variable (PRV) score of 22 total points, placing her at PRV
level C (10 to 24 points) in the applicable class C grid for OWI-death. MCL 777.12f; MCL
777.64. She had an offense variable (OV) score of 120 total points, placing defendant at OV
level VI (75 plus points) in the class C grid for OWI-death. MCL 777.12f; MCL 777.64. As a
result, the minimum sentence range was 43 to 86 months. MCL 777.64. Defendant was
sentenced to a minimum prison term of 10 years (120 months), thereby exceeding the top end of
the guidelines range by 34 months or just under three years.




                                                -1-
        In People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), our Supreme Court
ruled that “[a] sentence that departs from the applicable guidelines range will be reviewed for
reasonableness[,]” and that “[r]esentencing will be required when a sentence is determined to be
unreasonable.” In determining the reasonableness of a sentence that falls outside the range
recommended under the now advisory sentencing guidelines, we apply the principle of
proportionality set forth in People v Milbourn, 435 Mich 630, 634-636; 461 NW2d 1 (1990), and
its progeny. People v Steanhouse, 313 Mich App 1, 47-48; 880 NW2d 297 (2015). This Court
reviews the reasonableness or proportionality of a sentencing departure for an abuse of
discretion. People v Walden, __ Mich App __, __; __ NW2d __ (2017); slip op at 4; People v
Hyatt, 316 Mich App 368, 423; 891 NW2d 549 (2016).

        The principle of proportionality requires a sentence to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender’s background. Milbourn, 435
Mich at 636; Hyatt, 316 Mich App at 423. A departure may be appropriate when a case entails
facts and circumstances that are not adequately considered by the guidelines. Steanhouse, 313
Mich App at 45-46. Trial 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 imposing the sentence in this case, the trial court focused on the highly egregious and
reckless nature of defendant’s conduct and the horrific extent of the harm done to the victims and
their families.1 The court also noted that defendant had been on her way to pick up her own
children in her intoxicated state when the accident occurred. Although the court believed that
defendant was sincere in her apologies, it concluded that the circumstances demanded the
sentence that was imposed.

       We hold that the trial court did not abuse its discretion in imposing a 10-year minimum
sentence under the circumstances of this case. First, defendant’s total OV score of 120 points
exceeded OV level VI – the top level – by 45 points, MCL 777.64, supporting a conclusion that
the guidelines did not adequately address or reflect the facts presented here. And the guidelines
did not even take into account that, aside from the one death, three additional victims actually
sustained serious physical injuries. See MCL 777.31 et seq. Under OV 3, MCL 777.33
(physical injury to victim), defendant’s 50-point assessment was solely based on one victim
being killed, absent any contemplation of, or additional points being assessed for, the serious



1
  Aside from the death of the three-year-old girl, who suffered a fractured skull and bleeding on
the brain that led to her death, the driver’s two-year-old nephew suffered serious head, neck, and
leg injuries, along with severe emotional anxiety and stress, as a result of the crash. In addition,
the nephew’s growth plates were damaged, which will physically affect him for the remainder of
his life. The driver herself suffered two broken ribs, a pelvic fracture, and two fractured
vertebrae; she had two screws placed in her pelvis and suffers continuing pain.


                                                -2-
physical injuries suffered by the other victims. Defendant’s conduct could very easily have
resulted in six deaths, including herself and her passenger. Not only was she driving under the
influence of alcohol, defendant’s operation of the vehicle went beyond simply weaving in traffic;
she recklessly drove around stopped cars, ran a red light, and sped through an intersection on her
way to pick up her children.

       Second, although defendant did not have a substantial criminal history prior to the
accident, she did have two prior misdemeanor convictions for third-degree retail fraud and
disorderly house. Compare Granderson, 212 Mich App at 681 (affirming upward departure
despite a PRV score of zero). Further, the presentence investigation report indicated that
defendant had been abusing alcohol on a daily basis leading up to the accident.

       A sentence of 10 to 15 years’ imprisonment is entirely reasonable and appropriate where
a child was killed and three others suffered serious impairment of a body function with
potentially life-long effects, resulting from the inebriated and reckless operation of a motor
vehicle. Indeed, the evidence would have sufficiently supported a second-degree murder
conviction had such a conviction been before us for appellate review. The sentence was
proportionate to the offense and the offender. Resentencing is unwarranted.2

       Affirmed.



                                                            /s/ Kathleen Jansen
                                                            /s/ William B. Murphy
                                                            /s/ Stephen L. Borrello




2
  Defendant challenges the 25-point score for OV 13, MCL 777.43, arguing that the score cannot
be based on multiple offenses arising out of a singular event. A trial court must score 25 points
for OV 13 if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or
more crimes against a person.” MCL 777.43(1)(c). Defendant did not include this claim in her
statement of the question involved, MCR 7.212(C)(5), failed to preserve the challenge, MCL
769.34(10); MCR 6.429(C), and arguably waived the argument when defense counsel informed
the court that “the only scoring variable that we contest would be OV-17[,]” People v Hershey,
303 Mich App 330, 346-354; 844 NW2d 127 (2013). Moreover, for purposes of OV 13, all
crimes within a five-year period, including the sentencing offense, must be counted, MCL
777.43(2)(a), and a pattern of criminal activity may be based on multiple offenses arising from
the same incident or a single criminal episode, People v Gibbs, 299 Mich App 473, 487-488; 830
NW2d 821 (2013) (25-point score proper where there were three victims of a robbery). Finally,
even assuming reviewable error, defendant would remain at OV level VI (and still 20 points over
the top mark of 75 points), MCL 777.64, rendering any presumed error harmless. See People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).


                                               -3-
