Lead Opinion
Defendant, Allan Wayne Shank, appeals by delayed leave granted
I. FACTS
Police officers received disturbing information that Jerry Hilliard, a prison inmate, had sent an eight-year-old child a gift and card through Shank, who had been in prison with Hilliard and who has previous convictions of accosting minors for immoral purposes. During the investigation, officers discovered that Hilliard had requested that Shank take a photograph of the child posing in only a necklace. While executing a warrant, officers found a Winchester pump .22 caliber rifle in Shank’s hall closet. Officers also found evidence that Shank had sent Hilliard a photograph of what appeared to be a pregnant seven-year-old child and discovered in Shank’s photo album a photograph of a 5-year-old girl exposing her vaginal area. Shank denied that the photograph belonged to him.
Shank pleaded guilty to felon-in-possession and felony-firearm, and the prosecution dropped a charge
II. STANDARDS OF REVIEW
This Court, in Steanhouse, considered the effect of People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), on departure sentences. Steanhouse holds that under Lockridge, this Court must review a defendant’s sentence for reasonableness. Steanhouse, 313 Mich App at 42, citing Lockridge, 498 Mich at 365, 392, which cited United States v Booker, 543 US 220, 261, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005). Hence, when the trial court departs from the applicable sentencing guidelines range, this Court will review that sentence for reasonableness. Lockridge, 498 Mich at 392. However, as stated in Steanhouse, “The appropriate procedure for considering the reasonableness of a departure sentence is not set forth in Lockridge.” Steanhouse, 313 Mich App at 42. After discussion of the approaches Michigan appellate courts should employ
Ill. PRINCIPLE OF PROPORTIONALITY
Under Milbourn, “a given sentence [could] be said to constitute an abuse of discretion if that sentence violate [d] the principle of proportionality, which require [d] sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich at 636; see also Steanhouse, 313 Mich App at 44-45. In accordance with this principle of proportionality, trial courts were required to impose a sentence that took “into account the nature of the offense and the background of the offender.” Milbourn, 435 Mich at 651. As stated in Milbourn:
Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality. [Id. at 659-660.]
As set forth in Steanhouse, “[f]actors previously considered by Michigan courts under the proportionality standard included, among others, (1) the seriousness of the offense; (2) factors that were inadequately
In this case, the trial court did not have the benefit of our Supreme Court’s decision in Lockridge or this Court’s decision in Steanhouse. Rather, the trial court’s sentencing departure centered on the substantial-and-compelling-reason standard that was later overturned by Lockridge. Accordingly, in conformity with this Court’s decision in Steanhouse, we must remand this matter to the trial court for a Crosby
We remand this case to the trial court to follow the Crosby procedure outlined in Lockridge. Because defendant may be sentenced to a more severe sentence, defendant “may elect to forgo resentencing by providing the trial court with prompt notice of his intention to do so. If notification is not received in a timely manner, the trial court shall continue with the Crosby remand procedure as explained in Lockridge” and Steanhouse. Stokes, 312 Mich App at 203 (citations and quotation marks omitted).
We remand the matter for further proceedings consistent with this opinion. We do not retain jurisdiction.
People v Shank, unpublished order of the Court of Appeals, entered June 12, 2014 (Docket No. 321534).
This status increased Shank’s possible maximum term of imprisonment to life imprisonment. MCL 769.12(l)(b); MCL 750.227b(l).
See Lockridge, 498 Mich at 395-399, citing United States v Crosby, 397 F3d 103 (CA 2, 2005).
Dissenting Opinion
(dissenting).
Defendant, Allan Wayne Shank, is a serial sexual offender with eight felony convictions. After Shank engaged in a disturbing photograph exchange with an inmate, police searched his home and found firearms. His most recent convictions are felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. The sentencing guidelines recommended a minimum sentence of 7 to 46 months’ imprisonment. The trial court departed upward from this recommendation, sentencing Shank to 12 to 25 years’ imprisonment for his felon in possession conviction and a consecutive term of two years’ imprisonment for his felony-firearm conviction. Because I conclude that this Court need look no further than People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), to resolve this case, I would affirm.
I. STANDARD OF REVIEW
In Lockridge, the Michigan Supreme Court stated that this Court should review a trial court’s sentence for reasonableness. Id. at 392.
II. APPLICATION OF LOCKRIDGE
The Lockridge question in this case is whether Shank is entitled to resentencing. Shank contends on appeal that the trial court engaged in improper judicial fact-finding under Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013).
If a defendant does not challenge the scoring of his or her offense variables (OVs) at sentencing on Alleyne grounds, our review is for plain error affecting that defendant’s substantial rights. Lockridge, 498 Mich at 392. In this case, Shank did not challenge the scoring of his OV scores on Alleyne grounds. Our review is for plain error.
To be entitled to relief under plain-error review, a defendant must show that the error affected the outcome of the lower court proceedings. Id. at 393. The Lockridge court aptly stated the application of the plain error doctrine in cases—like Shank’s—in which the defendant did not preserve an Alleyne challenge below and the trial court departed upward:
Because [the defendant] received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the*229 trial court necessarily had to state on the record its reasons for departing from that range), the defendant cannot show prejudice from, any error in scoring the OVs in violation oí Alley ne. [Id. at 394 (emphasis altered).]
If a defendant’s minimum sentence involved an upward departure, that defendant “necessarily cannot show plain error . . . Id. at 395 n 31. “It defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guidelines were merely advisory.” Id.
In this regard, the Steanhouse Court’s decision to remand in that case was contrary to the precepts of stare decisis. As in Lockridge, the trial court in Stean-house departed upward from the recommended sentencing range. Steanhouse, 313 Mich App at 42. The defendant in Steanhouse, like the defendant in Lock-ridge, did not challenge the scoring of his OVs on Alleyne grounds. Id. The Court of Appeals in Stean-house recognized that the defendant could not establish a plain error under Lockridge. However, the Court proceeded to review the defendant’s sentence and remand for resentencing anyway, directly contrary to the language of Lockridge providing that the Lockridge defendant was not entitled to resentencing under the exact same circumstances.
I would follow Lockridge without declaring a conflict panel. The reason is simple—this Court need not convene a conflict panel to follow a rule articulated by the Supreme Court, even if a decision of this Court conflicts with the Supreme Court’s decision. Charles A Murray Trust v Futrell, 303 Mich App 28, 49; 840 NW2d 775 (2013). Until the Supreme Court’s decision is overruled by the Supreme Court itself, the rules of stare decisis require this Court to follow the Supreme Court’s decision. Paige v Sterling Hts, 476 Mich 495, 524; 720
A remand under United States v Crosby, 397 F3d 103 (CA 2, 2005), is used to determine whether prejudice resulted from an error. People v Stokes, 312 Mich App 181, 200-201; 877 NW2d 752 (2015). The Lock-ridge court stated that no prejudice could result from the type of “error” involved in this case.
Ill. DUE PROCESS
Shank also raises a due process issue, contending that the trial court may not consider his conduct of sending photographs of a young child to Jerry Hilliard, an inmate and sex offender, because the prosecution dropped the charge for possession of child sexually abusive material (child pornography).
In this case, the prosecution dropped a charge for possessing child sexually abusive material. In sentencing defendant, the trial court did not rely on defendant’s possession of the sexually abusive photograph, but instead focused on how Shank’s conduct— grooming an acquaintance’s child and sending photographs of that child and an ostensibly pregnant seven-year-old to Hilliard, who was incarcerated for molesting children—showed that he had very little rehabilitative potential and posed a danger to the community. I conclude that the trial court did not violate Shank’s due process rights.
IV. PROPORTIONALITY
Shank also raises a proportionality question unrelated to the application of Lockridge and Alleyne—he contends that the trial court’s lengthy sentence was not proportional because it was not justified by the circumstances of his crime. Again, I disagree.
Even when the sentencing guidelines were mandatory, the “key test” of a sentence was whether it was proportionate to the seriousness of the matter, rather than whether it strictly adhered to a guidelines range. People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990). “[P]unishment should be made to fit the crime and the criminal.” People v Babcock, 469 Mich 247, 262; 666 NW2d 231 (2003). One purpose of the sentencing guidelines is to facilitate proportional sentences. See People v Smith, 482 Mich 292, 320-321; 754 NW2d 284 (2008) (MARKMAN, J., concurring).
I would affirm.
The Lockridge Court adopted the reasonableness standard from United States v Booker, 543 US 220, 261; 125 S Ct 738; 160 L Ed 2d 621 (2005). Lockridge, 498 Mich at 392.
Ixl Alleyne, the United States Supreme Court held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 570 US at_; 133 S Ct at 2155.
I am concerned about questions of judicial economy implicit in blindly affording Crosby remands to every sentencing question that is raised before this Court post-Lockridge, particularly when challenges to those sentences are unpreserved.
See MCL 750.145c(4).
The trial court need no longer articulate substantial and compelling reasons to justify a departure from the sentencing guidelines. Lockridge, 498 Mich at 364-365. However, the trial court should still articulate reasons for why its sentence is more proportionate than a sentence within the guidelines range, even though these reasons need not be substantial and compelling. See Rita, 551 US at 356-357 (stating that when determining the reasonableness of a sentence, courts should consider the sentencing court’s reasons for departing from the guidelines); Gall v United States, 552 US 38, 50; 128 S Ct 586; 169 L Ed 2d 445 (2007) (stating that a more significant departure will require more justification to be upheld as proportional than a minor departure).