People v. Shank
313 Mich. App. 221
| Mich. Ct. App. | 2015Background
- Defendant Allan Wayne Shank pleaded guilty to felon-in-possession (MCL 750.224f) and felony-firearm (MCL 750.227b); a related child sexually abusive material charge was dropped.
- Police connected Shank to exchanging sexually suggestive photographs of young children with an incarcerated sex offender; a .22 rifle was found in his home.
- Sentencing guidelines recommended a minimum term of 7–46 months for the felon-in-possession count.
- The trial court upwardly departed and sentenced Shank as a fourth-offense habitual offender to 12–25 years for felon-in-possession, plus a consecutive two years for felony-firearm, citing poor rehabilitation and dangerous conduct (including grooming behavior).
- On appeal the Court of Appeals, applying People v Steanhouse and People v Lockridge, remanded for a Crosby hearing to determine the effect of Lockridge on the departure sentence and to allow the defendant to elect to waive resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand for Crosby hearing is required post-Lockridge | Prosecution: remand to determine impact of advisory-guidelines rule and permit defendant to waive resentencing | Shank: argues judicial fact-finding/Alleyne error and seeks resentencing | Majority: Remand for Crosby hearing per Steanhouse/Lockridge to determine prejudice and allow waiver |
| Whether upward departure violated proportionality principle | N/A (prosecution defended sentence based on offender history and conduct) | Shank: sentence excessive and disproportionate to offenses | Majority: did not decide proportionality fully; remand required so trial court can address under Lockridge framework |
| Whether use at sentencing of conduct underlying dropped child pornography charge violated due process | N/A | Shank: court improperly relied on conduct tied to dropped charge | Dissent: considered argument and held court permissibly relied on conduct to assess dangerousness and rehabilitation; majority did not reach issue |
| Whether Lockridge/Alleyne plain-error review bars resentencing when an upward departure was imposed | N/A | Shank: seeks resentencing based on Alleyne/Lockridge errors | Dissent: follows Lockridge—where an upward departure occurred and Alleyne issues were unpreserved, defendant cannot show plain error; would affirm without Crosby remand |
Key Cases Cited
- People v Lockridge, 498 Mich 358 (Michigan Supreme Court) (held guidelines advisory post-Booker and adopted reasonableness review)
- People v Steanhouse, 313 Mich App 1 (Mich. Ct. App.) (applied Lockridge and remand procedure for departure sentences)
- People v Milbourn, 435 Mich 630 (Michigan Supreme Court) (principle of proportionality for sentencing)
- People v Stokes, 312 Mich App 181 (Mich. Ct. App.) (explained Crosby remand purpose and waiver option)
- United States v Booker, 543 U.S. 220 (U.S. Supreme Court) (reasonableness review and advisory guidelines framework)
- United States v Crosby, 397 F.3d 103 (2d Cir.) (procedure for remand to determine prejudice and permit waiver where guidelines errors occurred)