People of Michigan v. Allan Wayne Shank
321534
Mich. Ct. App.Jan 9, 2018Background
- Defendant Allan Wayne Shank pleaded guilty to felon in possession of a firearm (MCL 750.224f) and felony-firearm (MCL 750.227b) and was sentenced as a fourth-offense habitual offender.
- Trial court imposed consecutive terms: 12–25 years for felon-in-possession (an upward departure from the guidelines range of 7–46 months) and 2 years for felony-firearm.
- Sentencing followed evidence that Shank facilitated communication between imprisoned sex offenders and young girls, sought sexual images of an eight-year-old, and had images of naked young girls at his home.
- Shank admitted a 20-year history of pedophilia and sexual exploitation of children, had prior probation/parole violations, and previously enabled an inmate’s conviction for child abuse.
- The case returned from the Michigan Supreme Court for plenary review of Shank’s sentencing claims, including proportionality under People v Milbourn.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the upward departure sentence was an abuse of discretion/proportionate | The upward departure was justified by Shank’s extensive sexual history with children, recidivism, and danger to the public | Shank argued the departure was disproportionate under Milbourn and that the court improperly relied on conduct dismissed in the plea | The Court affirmed: sentence was proportionate and not an abuse of discretion |
| Whether factors relied on were outside the guidelines and support departure | The trial court identified factors beyond offense variables—history of facilitating child sexual contact, possession of child images, lack of rehabilitation | Shank contended the court improperly considered conduct tied to dismissed charges | The Court held the court may consider defendant’s broader history/context for departure (not limited to offense-variable scoring) |
| Whether considering dismissed-charge conduct violated McGraw | Prosecutor maintained the court may consider broader recidivist/rehabilitation evidence when departing | Shank argued McGraw prohibits using dismissed-conduct to score or enhance sentence | The Court distinguished McGraw and allowed consideration of such history for departure purposes |
| Whether sentencing court adequately justified extent of departure | State argued court identified substantial, aggravating, unrebutted factors showing continued danger | Shank argued reason for extent was insufficient and guidelines reflect seriousness | The Court found the trial court adequately identified and weighed factors supporting the extent of departure |
Key Cases Cited
- People v Milbourn, 435 Mich 630 (1990) (establishes proportionality standard for departures)
- People v Steanhouse, 500 Mich 453 (2017) (abuse-of-discretion review and use of proportionality principle in sentencing)
- People v McGraw, 484 Mich 120 (2009) (limits use of dismissed conduct for offense-variable scoring; distinguished here)