                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 16, 2016
               Plaintiff-Appellee,

v                                                                   No. 324275
                                                                    Presque Isle Circuit Court
JEREMIAH ALLEN DEWEY,                                               LC No. 13-092844-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GADOLA and O’BRIEN, JJ.

RONAYNE KRAUSE, P.J. (concurring in part and dissenting in part).

       I write separately to concur, for the most part, in the majority’s opinion and to dissent
regarding the need to remand this case under People v Steanhouse, ___ Mich App ___; ___
NW2d ___ (2015) (Docket No. 318329).

        As the majority notes, defendant argues that he is entitled to resentencing because the
minimum sentence imposed by the trial court for the convictions in this case violated the
principles of proportionality and the trial court’s reasoning for the departure was neither
substantial nor compelling and thus insufficient to justify the sentence.

        The majority correctly notes that, under the recent case of People v Lockridge, 498 Mich
358; 870 NW2d 502 (2015), a trial court is no longer required to articulate substantial and
compelling reasons for a departure from the sentencing guidelines’ minimum sentence range. Id.
at 364-65, 391-92. Under Lockridge, while the sentencing guidelines must still be scored by the
trial court, the resulting range is merely an advisory range that must be taken into account by the
trial court when imposing a sentence. People v. Stokes, ___ Mich App ___, ___NW2d___, slip
op. at 8 (2015) (Docket No. 321303). Moving forward, “sentence[s] that depart from the
applicable guidelines range will be reviewed by an appellate court for reasonableness.”
Lockridge, 498 Mich at 392.

         The majority believes that, since Lockridge had not been decided at the time this
defendant’s sentence was imposed, we must remand in accordance with the Crosby procedure
outlined in Steanhouse, ___Mich App at ___; slip op at 2-3. I disagree. “The purpose of a
Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence, so
that it may be determined whether any prejudice resulted from the error.” Stokes, ___ Mich App
at ___; slip op at 11. In Lockridge, the Supreme Court applied the rules set forth in Alleyne and
Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), to
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Michigan’s sentencing guidelines. Stokes, ___ Mich App ___; slip op at 6. The Lockridge court
“held that Michigan’s sentencing scheme violates the Sixth Amendment right to a jury trial
because it requires ‘judicial fact-finding beyond facts admitted by the defendant or found by the
jury to score offense variables that mandatorily increase the floor of the guidelines minimum
sentence range.” Id. To remedy this violation, the Lockridge court declared that Michigan’s
sentencing guidelines were advisory rather than mandatory, thereby holding that trial courts no
longer need to find substantial and compelling reasons to depart from the guidelines but, rather,
may depart from the guidelines range when reasonable to do so. Id. at 8. Therefore, when a trial
court engages in judicial fact-finding, the trial court has committed a Lockridge error; however,
the Lockridge court was clear that when a defendant receives “an upward departure sentence that
did not rely on the minimum sentence range for the improperly scored guidelines (and indeed,
the trial court necessarily had to state on the record its reasons for departing from that range), the
defendant cannot show prejudice.” Lockridge, 498 Mich at 394.

       In this case, the trial judge did not engage in judicial fact-finding when scoring the
guidelines. The trial court properly scored the guidelines and then stated its reasons for
departing from the guidelines. Even assuming, arguendo, that the trial court employed the
substantial and compelling test when it engaged in this departure, applying the Lockridge
reasonableness standard would have no effect on defendant’s sentence and remand is thereby
unnecessary.

       In Steanhouse, this Court has stated the test to be used in determining the reasonableness
of a sentence upon review. This court concluded that “reinstating the previous standard of
review in Michigan, as a means of determining the reasonableness of a sentence, is preferable to
adopting the analysis utilized by the federal courts and is most consistent with the Supreme
Court’s directives in Lockridge.” Steanhouse, ___ Mich at ___; slip op at 24. Furthermore, “a
sentence that fulfills the principle of proportionality under Milbourn and its progeny constitutes a
reasonable sentence under Lockridge.” Id.

       Under the test articulated in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990),
“the principle of proportionality . . . requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Stating it another way, “the judge . . . must take into account the nature of the offense and the
background of the offender.” Id. at 651. Regarding sentences that depart from the guidelines’
recommendation, the Steanhouse court quoted Milbourn at length, including:

       that departures [from the guidelines] are appropriate where the guidelines do not
       adequately account for important factors legitimately considered at sentencing . . .
       [T]rial 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. [Steanhouse, ___ Mich at ___; slip op
       at 23, quoting Milbourn, 435 Mich at 657].

        Here, the trial court, when handing down defendant’s sentence, properly took “the nature
of the offense and the background of the offender” into consideration. Milbourn, 435 Mich at
651. Defendant repeatedly sexually abused the victim, resumed his abuse after she returned to


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his life and he infected her with a sexually transmitted disease. On the record at sentencing, the
trial court stated:

       I think on this one there is substantial and compelling reasons to go outside the
       guideline range and that the guidelines do not take into consideration and account
       for the fact that this young girl had been previously sexually molested by you
       when she was about six years old, and then was separated from you due to your
       relationship with her mother, and she was left out in Washington for several
       years. And I don’t think the guidelines score considers the fact that you
       previously sexually abused her, abusing your authority over her, and then years
       later, when reunited with her, you engage in similar conduct with her. The
       damage is hard to fathom or calculate.

        . . . It involves you being in charge as a de facto sort of step dad. Mom chose to
       live with you and bring her child. And, unfortunately, you were left alone with
       the girl when she was very young, about six years of age, and it appears that on
       multiple occasions you had sex with her and infected her with an STD. And I
       don’t think the guideline range takes into account the number of times she was
       violated. I don’t think it accurately reflects the problems with being infected with
       an STD. And I don’t think it considers the fact that we know that when you were
       reunited with her seven years later, you’re going to violate her again.

        Based on this record, I find that the sentence imposed by the trial court was
“proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Id. at 651. As the trial court’s departure is reasonable, I would affirm the departure and decline
to remand this case to the trial court.

        Additionally, I note that there has been substantial disagreement among the various
panels of the Court as to whether a Crosby remand is required for an upward departure based
upon the substantial and compelling test. However, a conflict panel has not been convened as
most of this debate has percolated in unpublished opinions. See MCR 7.215(J). Given the
divide among this Court and the frequency with which this issue has been presented, I suspect
that clarity will eventually require that direction be provided by our Supreme Court.



                                                            /s/ Amy Ronayne Krause




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