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April 27, 2017

COA addresses the requirement that a departure from the sentencing guidelines need only meet the proportionality standard

In People v Walden, No. 330144, the Court of Appeals emphasized Lockridge’s holding that trial courts can depart from the minimum sentencing guidelines range without articulating substantial and compelling reasons for doing so.  Rather, the sentence must only be reasonable, which means that it must be proportionate to the seriousness of the circumstances surrounding the offense and the offender.
 
The case arose out of a fatal stabbing. A group of people were shooting dice in a street when an altercation broke out. Defendant allegedly threw a jacket over the victim’s face and stabbed him twice in the abdomen, causing the victim to die hours later. A jury convicted defendant of voluntary manslaughter, and the trial court sentenced defendant to 120 to 270 months’ imprisonment. In calculating the sentencing guidelines range, the trial court scored 10 points for offense variable (OV) 9 (number of victims). The trial court also departed upward by 13 months from the advisory minimum. Defendant challenged both of these aspects of his sentence on appeal.

Defendant first argued that the trial court incorrectly assessed 10 points for OV 9. MCL 777.39, which governs the scoring of OV 9, states that the trial court should assess 10 points where “there were 2 to 9 victims who were placed in danger of physical injury or death.” An assessment of 0 points is appropriate where “there were fewer than 2 victims who were placed in danger of physical injury or death.” Each person who was placed in danger of physical injury or loss of life is considered a victim. Defendant contended that because he only stabbed on person, OV 9 should have been scored at zero points. The Court of Appeals dismissed this argument, reasoning that by defendant’s own testimony, at least three people were near him when he drew the knife and began swinging it. Therefore, although the defendant only stabbed one person, at least 2 other people were placed in immediate danger of physical injury or loss of life and were thus victims for purposes of OV 9. The Court held that the trial court properly awarded a score of 10 points for OV 9.
 
Defendant also argued that the trial court’s upward sentencing departure of 13 months from the calculated guidelines range was substantively unreasonable. The Court of Appeals noted the standard from People v Lockridge, 498 Mich App 358; 870 NW2d 502 (2015), that a sentence is reasonable if it meets the principle of proportionality explained in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). According to Milbourn, proportionality requires sentences to be proportionate to the seriousness of the circumstances surrounding the offense and the offender—meaning the judge must take into account the nature of the offense and background of the offender.
 
Using this standard, the Court of Appeals examined the trial judge’s on-the-record statements and determined that his rationale for the modest upward adjustment appeared to be motivated by proportionality.  The Court noted that the trial judge appeared to consider factors including the seriousness of the offense, the defendant’s potential for rehabilitation and lack of remorse, his criminal history, and the fact that defendant was on bond for aggravated assault at the time of the stabbing. Although the trial judge never explicitly referred to Milbourn or the proportionality standard, the Court held that there was no abuse of discretion and that the defendant was not entitled to resentencing.
 
A partial concurrence and dissent by Judge Gleicher took issue with the majority’s finding that there was no abuse of discretion, emphasizing language from Milbourn that “departures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing.” Judge Gleicher opined that the factors articulated by the trial judge were not so different from factors already considered by the sentencing guidelines such that a departure was clearly warranted. Judge Gleicher would have preferred to remand the case for resentencing to allow the trial court to explain why the sentence it imposed was more proportionate than one falling within the guidelines range.

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