                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 8, 2016
               Plaintiff-Appellee,

v                                                                    Nos. 315068, 325251
                                                                     Bay Circuit Court
VICTOR ANTHONY CORPUZ,                                               LC No. 12-010302-FH

               Defendant-Appellant.


                                           ON REMAND

Before: GLEICHER, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (concurring).

       I concur in the majority’s opinion. I write separately only to underscore my belief that the
remand ordered in section I of the opinion is limited to situations in which the trial court
determines that there are substantial and compelling reasons to depart from the defendant’s
guidelines range by relying upon guidelines scored improperly under People v Lockridge, 498
Mich 358, 364; 870 NW2d 502 (2015).

        In this case, we hold that certain facts underlying the trial court’s assessment of OVs 3, 4,
10, and 14 were not found by a jury beyond a reasonable doubt. The scoring of these points
altered defendant’s guidelines range and violates defendant’s Sixth Amendment rights under
Lockridge. Id.

       While the trial court found substantial and compelling reasons to depart from the
guidelines, the underlying constitutional error in this case requires that we remand for a hearing
pursuant to the procedure outlined in United States v. Crosby, 397 f3d 103 (Ca 2, 2005). See
Lockridge, 498 Mich at 395-396. Under Crosby, “cases in which a defendant’s minimum
sentence was established by application of the sentencing guidelines in a manner that violated the
Sixth Amendment . . . should be remanded to the trial court to determine whether that court
would have imposed a materially different sentence but for the constitutional error. If the trial
court determines that the answer to that question is yes, the court shall order resentencing.”
Crosby, 397 f3d at 118 (emphasis added).

       In the majority of cases where the trial court does not depart from the sentencing
guidelines, our analysis is relatively straightforward: where there is impermissible judicial fact-
finding which causes the defendant to be placed in a higher guidelines range, this Court should
                                                -1-
remand under Crosby. However, when the court departs from the guidelines range, this court
must engage in an additional inquiry under Lockridge before ordering a remand.

        Prior to Lockridge, Michigan’s sentencing guidelines were considered mandatory. See
Lockridge, 498 Mich at 387-88. A trial court thereby needed to find substantial and compelling
reasons to depart from the guidelines. Id. at 391; quoting MCL 769.34(3). 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 Michigan’s sentencing guidelines. People v
Stokes, ___ Mich App ___, ___; ___ NW2d ___ (2015); 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 engage in judicial fact-finding when scoring the
guidelines. At the initial sentencing, the trial court assessed defendant 121 overall OV points;
though, just 75 points placed defendant in the top OV level on the grid. The trial court reasoned
that the 46-point gap between the defendant’s score and that needed to be placed in the top level
constituted substantial and compelling reasons to upwardly depart from defendant’s sentence
range. Accordingly, in departing from the sentence range, the trial court relied upon the
improperly scored guidelines. As the trial court committed a Lockridge error and did not fall
within the narrow exception for upward departures that do not rely upon the improperly scored
guidelines, I concur in this Court’s remand of this case under the procedure set forth in Crosby.

       Had the trial court not relied upon the improperly scored guidelines, however, remand
under Crosby would be unnecessary even though the trial court justified its departure under the
substantial and compelling standard as opposed to the Lockridge reasonableness standard.

        In Steanhouse, this Court 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.” People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015)
(Docket No. 318329); 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

                                                -2-
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].

       As the substantial and compelling standard naturally encompasses a reasonableness
standard, 1 a trial court cannot determine that there are substantial and compelling reasons to
depart from the guidelines without implicitly determining that departing from the guidelines is
reasonable. Therefore, when a trial court does not rely on improperly scored guidelines to find
substantial and compelling reasons to depart from the guidelines, this court should not remand
the case for the trial court to determine whether it would have awarded a materially different
sentence had the judge known that he need only find it reasonable to depart from the guidelines.
The trial judge has already answered this question in the affirmative by determining that there
are substantial and compelling reasons to depart.

         Rather, in such a case, this Court should inquire as to whether the sentence imposed
fulfills the proportionality test set forth in Milbourn. If the sentence imposed is “proportionate to
the seriousness of the circumstances surrounding the offense and the offender,” see Milbourn,
435 Mich at 636, this Court should affirm the sentence; if not, remand for resentencing must be
ordered.

       The question as to whether a Crosby remand is required for an upward departure based
upon the substantial and compelling test has been met with substantial disagreement among the
various panels of the Court. I am aware that in People v Shank, ___ Mich App ___, ___; ___
NW2d ___ (2015) (opinion of the court); slip op at 2-3, this Court has determined that remand
under Crosby is required when the trial court departs from properly scored guidelines utilizing
the substantial and compelling test. However, I agree with Judge O’Connell’s concern “about


I
 Prior to Lockridge, our Supreme Court held that the “reasons justifying departure [under the
substantial and compelling test] should ‘keenly’ or ‘irresistibly’ grab our attention.” People v
Fields, 448 Mich. 58, 67; 528 N.W.2d 176, 186 (1995). Judge Boyle concurred in this decision,
noting that, by adopting the substantial and compelling test, the legislature “consciously elevated
the burden of proof” over the previous standard which required only “the amount of evidence
that a reasonable mind would accept as sufficient to support a conclusion.” Id. at 83 (quotations
omitted). The previous standard mentioned by Judge Boyle is the standard to which the Court
returns in Lockridge. See Steanhouse, ___ Mich App at ___; slip op at 24.




                                                -3-
questions of judicial economy implicit in blindly affording Crosby remands to every sentencing
question that is raised before this Court post-Lockridge.” Id. at __ (O’Connell, J., dissenting);
slip op at 3 n 3. Our Supreme Court has held that where a trial court departs from the guidelines
range without relying upon improperly scored guidelines remand is unnecessary. Lockridge, 498
Mich at 394. Whether this Court agrees with that exception or not, stare decisis commands that
we follow our Supreme Court’s precedent.

                                                           /s/ Amy Ronayne Krause




                                               -4-
