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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

January 9, 2018

v No. 321534

Presque Isle Circuit Court

ALLAN WAYNE SHANK, LC No. 12-092763-FC

Defendant-Appellant.

ON REMAND

Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.

PER CURIAM.

This case returns to us on remand from our Supreme Court “for plenary review of the 

defendant’s sentencing claims, including that his sentence was disproportionate under the 

standard set forth in People v Milbourn, 435 Mich 630, 636 [; 461 NW2d 1] (1990).” People v 

Shank, ___ Mich ___; 902 NW2d 602 (2017). We affirm the trial court’s upward departure 

sentence. 

Defendant, Allan Wayne Shank, pleaded guilty to felon in possession of a firearm, MCL 

750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b. The trial court sentenced Shank as a fourth-offense habitual offender, MCL 769.12, to 

consecutive sentences of 12 to 25 years’ imprisonment for the felon in possession conviction, 

which was an upward departure from the minimum guidelines range of 7 to 46 months, and two 

years’ imprisonment for the felony-firearm conviction. 

We review the reasonableness of a trial court’s sentencing decision using the abuse of 

discretion standard. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). We apply

the principle of proportionality to determine whether the sentence was reasonable. Id. The trial 

court should identify the factors warranting a departure and justifying the extent of the departure. 

Milbourn, 435 Mich at 659-660. Factors relevant to the proportionality of a departure sentence 

“include (1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not 

considered by the guidelines, and (3) factors considered by the guidelines but given inadequate 

weight.” People v Dixon-Bey, ___ Mich App ___; ___ NW2d ___ (2017) (Docket No. 331499); 

slip op at 18-19 (citations omitted). Other factors include “the defendant’s misconduct while in 

custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation.” 

Id. at 19 n 9 (quotation marks and citation omitted). 
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We conclude that the trial court’s upward departure sentence did not violate the principle 

of proportionality. Shank facilitated communication between an imprisoned sex offender and an 

eight-year-old girl in an attempt to obtain a picture of the girl wearing only a necklace. Police 

found pictures of naked young girls in Shank’s home. In addition, Shank previously facilitated 

communication between another young girl and an inmate serving a sentence for molesting a 

child that led to an additional conviction for the inmate for first-degree child abuse. Shank 

admitted to a 20-year history of pedophilia and sexual exploitation of children. Shank violated 

probation and parole and continued to harm young children even after spending several years in 

prison. These factors support the trial court’s conclusion that Shank was not rehabilitated and 

continued to pose a danger to young children. The trial court noted that these factors went

beyond those considered in scoring the offense variables. Consequently, the trial court did not 

abuse its discretion when it imposed the upward departure sentence. 

Shank argues that the trial court improperly considered the sexual misconduct underlying 

the charge that the prosecution dismissed as part of the plea deal. We disagree. This case is 

distinguishable from People v McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009), because 

the trial court in this case considered Shank’s history for the purpose of imposing an upward 

departure, not for the purpose of assessing an offense-specific variable. The trial court did not 

abuse its discretion when it evaluated the full context of Shank’s conduct surrounding the 

convictions because a departure sentence reflects considerations beyond those accounted for by 

the offense variables. 

We affirm. 

/s/ Stephen L. Borrello

/s/ Joel P. Hoekstra

/s/ Peter D. O’Connell