If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

February 11, 2020

v No. 346704

Wayne Circuit Court

BERNARD LAMOUNT WILKERSON, LC No. 15-010666-06-FH

Defendant-Appellant.

Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

Defendant, Bernard Lamount Wilkerson, appeals his sentence for violating his probation 

conditions which stemmed from his earlier guilty plea convictions of conspiracy to commit 

unlawful driving away of an automobile (UDAA), MCL 750.413 and MCL 750.157A, and 

conspiracy to commit receiving and concealing a stolen motor vehicle (RCSP), MCL 750.535(7)

and MCL 750.157A. Wilkerson was sentenced to 30 months to 60 months’ imprisonment for both

convictions. On appeal, Wilkerson argues that the trial court abused its discretion by imposing an 

unreasonable sentence outside the guidelines range. We affirm.

I. STATEMENT OF FACTS

This case initially arose out of an attempted theft of several motor vehicles. Wilkerson and 

other individuals were transported to a Ford Motor Company plant. In exchange for financial 

reimbursement from another individual, Wilkerson planned to drive several Ford F-150 model 

trucks that were stored at the plant to a secondary location, at which point the trucks were to be 

sold. Before any trucks were stolen, Wilkerson and the others were intercepted by law 

enforcement. Wilkerson pleaded guilty to one count of UDAA and one count of RCSP. Under 

the sentencing guidelines, Wilkerson was subject to a recommended minimum sentence of 5 

months to 23 months’ imprisonment, which is in a straddle cell. The trial court sentenced 

Wilkerson to probation for a period of two years, with the first six months to be served in the 

Wayne County Jail. 

Following Wilkerson’s release from jail, the trial court issued a bench warrant for his arrest, 

alleging that he had violated his probation by failing to report and by failing to make payments. 
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Wilkerson pleaded guilty to both violations. The trial court extended Wilkerson’s probation and

sentenced him to 120 to 180 days to be served in the Wayne County Residential Alternative to 

Prison (WRAP) Program, a jail-based program that provides vocational and cognitive services. 

Later, Wilkerson assaulted another WRAP participant, who Wilkerson alleged had previously shot 

him, and he was terminated from the WRAP Program. The trial court issued another bench 

warrant, this time alleging that Wilkerson had violated his probation by engaging in new criminal 

activity when he assaulted another WRAP participant and for being terminated from the WRAP 

Program. Wilkerson pleaded guilty to the violation, the trial court revoked his probation and 

sentenced him to 30 months to 60 months’ imprisonment. This appeal followed.

II. DISCUSSION

Wilkerson argues on appeal that the trial court abused its discretion by imposing an out-ofguidelines sentence. Wilkerson specifically alleges that the trial court did not sufficiently justify 

its reasons for exceeding the guidelines, and that the trial court’s erroneous belief that it did not 

have to consider the guidelines for a probation violation rendered the sentence invalid. We 

disagree.

An out-of-guidelines sentence is reviewed for reasonableness. People v Lockridge, 498 

Mich 358, 365; 870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate courts 

reviewing a sentence for reasonableness on appeal is abuse of discretion.” People v Steanhouse, 

500 Mich 453, 471; 902 NW2d 327 (2017). An abuse of discretion occurs when the trial court 

violates the principle of proportionality or fails to “provide adequate reasons for the extent of the 

departure sentence imposed[.]” Id. at 476. Furthermore, an abuse of discretion occurs when a trial 

court’s decision falls outside the range of reasonable and principled outcomes. People v Blanton, 

317 Mich App 107, 117; 894 NW2d 613 (2016). “The trial court’s fact-finding at sentencing is 

reviewed for clear error.” People v Lampe, 327 Mich App 104, 125-26; 933 NW2d 314 (2019).

When evaluating the reasonableness of departure sentences, this Court is required to 

determine whether the trial court violated “the principle of proportionality,” which necessitates 

that sentences “be proportionate to the seriousness of the circumstances surrounding the offense 

and the offender.” Steanhouse, 500 Mich at 459-460 (quotation marks and citation omitted). To 

determine whether a departing sentence is proportionate, the trial court may consider a number of 

factors, including:

(1) the seriousness of the offense; (2) factors that were inadequately 

considered by the guidelines; and (3) factors not considered by the guidelines, such 

as the relationship between the victim and the aggressor, the defendant’s 

misconduct while in custody, the defendant’s expressions of remorse, and the 

defendant’s potential for rehabilitation. [Lampe, 327 Mich App at 126, quoting 

People v Walden, 319 Mich App 344, 330; 901 NW2d 142 (2017) (citation 

omitted).]

“[T]he sentencing court may exercise its discretion to depart from that guidelines range 

without articulating substantial and compelling reasons for doing so.” Lockridge, 498 Mich at 

392. Nevertheless, a trial court must consider the sentencing guidelines at sentencing, and “a trial 

court must justify the [out-of-guidelines] sentence imposed in order to facilitate appellate review, 
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which includes an explanation of why the sentence imposed is more proportionate to the offense 

and the offender than a different sentence would have been.” People v Dixon-Bey, 321 Mich App 

490, 524-525; 909 NW2d 458 (2017) (quotation marks and citations omitted).

Before imposing Wilkerson’s sentence, the trial court explicitly scored the guidelines

minimum sentence range at 5 months to 23 months’ imprisonment, which is in a straddle cell, for 

Wilkerson’s convictions. The trial court plainly acknowledged that it was imposing a sentence 

above the guidelines. The trial court subsequently identified several reasons for the departure 

sentence: (1) Wilkerson’s multiple violations of probation since the convictions for UDAA and 

RCSP; (2) the intention behind Wilkerson’s participation in the WRAP Program as a prison 

alternative; and (3) Wilkerson’s assaultive conduct toward another WRAP participant. 

As a preliminary matter, our Supreme Court has noted that “it is perfectly acceptable to 

consider postprobation factors in determining whether substantial and compelling reasons exist to 

warrant an upward departure from the legislative sentencing guidelines.” People v Hendrick, 472 

Mich 555, 562-563; 697 NW2d 511 (2005). Although Lockridge struck down the requirement that 

a departure from the sentencing guidelines must be made for “substantial and compelling” reasons, 

postprobation factors may be considered in evaluating the reasonableness of a sentence. 

Lockridge, 498 Mich at 364-365; Hendrick, 472 Mich at 562-563. Therefore, the trial court

properly considered Wilkerson’s probation violations and his assault of another WRAP participant 

in justifying the imposition of a departure sentence. 

Furthermore, consideration of the factors delineated in Walden suggests that the departing 

sentence is proportionate. See Walden, 319 Mich App at 352-353. Wilkerson’s original 

convictions for UDAA and RCSP did not involve physical violence or the infliction of physical 

injury, thus Wilkerson’s assaultive conduct while he was on probation was arguably a more serious 

offense. For similar reasons, because Wilkerson was in custody when he assaulted the other 

WRAP participant, it could not have been reflected in the initial scoring of the guidelines that 

occurred two years prior. The trial court additionally stated its consideration of the disconnect 

between Wilkerson’s repeated expressions of remorse with his subsequent criminal activity, and

implied that Wilkerson’s history of criminal activity and termination from the WRAP Program 

suggested his unwillingness to actively engage in rehabilitation efforts. 

Although Wilkerson argues that the sentence was disproportionate because the trial court 

failed to consider mitigating factors, the trial court demonstrated that it reflected on the information 

submitted by Wilkerson, including the circumstances concerning Wilkerson’s assault of another

WRAP participant, Wilkerson’s efforts to support his three children, and his assertions that he 

recognized and desired the benefits of the vocational and cognitive aspects of the WRAP Program. 

See Lampe, 327 Mich App at 131. The trial court considered the mitigating factors in this case, 

and nevertheless chose to impose a departure sentence after evaluating the totality of the 

circumstances. Wilkerson’s sentence was only seven months above the high end of the applicable 

guidelines range, which is a modest increase in the length of incarceration. See Walden, 319 Mich 

App at 353 (finding a sentence 13 months above the guidelines to be a modest deviation not 

constituting an abuse of discretion). Taken together, we conclude that the trial court’s sentence 

did not violate the principle of proportionality. See Dixon-Bey, 321 Mich App at 520-521.
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Next, Wilkerson argues that the out-of-guidelines sentence is invalid because the trial court 

operated under a misconception regarding the application of the sentencing guidelines to probation 

violations. We disagree.

“[A] defendant is entitled to resentencing where a sentencing court fails to exercise its 

discretion because of a mistaken belief in the law.” People v Green, 205 Mich App 342, 346; 517 

NW2d 782 (1994); see also People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981). 

On appeal, Wilkerson highlights a statement made by the trial court before imposing its 

sentence:

So I am going to revoke probation and the guidelines are advisory and not 

mandatory. They’re a starting point and, furthermore, they don’t apply to probation 

violations so I’m going to sentence you above the guidelines to serve a minimum 

of thirty months to a maximum of sixty months in the [MDOC] . . . .

Wilkerson correctly notes that “[t]he legislative sentencing guidelines apply to sentences 

imposed after probation revocation.” Hendrick, 472 Mich at 565. However, the record does not 

indicate that the trial court failed to exercise its discretion because of this misconception, or 

otherwise operated on the basis of this erroneous belief. See Green, 205 Mich App at 347 (holding 

that a defendant was entitled to remand for resentencing when it was “impossible to determine 

whether the trial court decided to enhance the sentence solely because of a mistaken belief that 

enhancement was mandatory.”). The trial court noted that the guidelines were “advisory” and “a 

starting point.” As stated previously, the trial court noted the guidelines minimum sentence range 

during its deliberation on sentencing, and the court put forth reasons justifying its departure that 

clarified why such an increase was nevertheless proportionate. The record thus demonstrates that 

the trial court decided to enhance the sentence not due to a mistaken belief that the guidelines were 

inapplicable to sentences imposed after revoking probation, but rather because of Wilkerson’s

violation of the terms of his probation, his termination from the WRAP Program, and his assaultive 

conduct. 

A sentence is not invalid solely because of the presence of a statement evidencing a 

misconception of law by the trial court. Rather, a sentence is invalid when it is “based upon . . . a 

misconception of law[,]” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997); or, alternatively 

stated, “where a sentencing court fails to exercise its discretion because of a mistaken belief in the 

law,” Green, 205 Mich App at 346 (emphasis added). The trial court exercised its discretion to 

impose a sentence outside the guidelines, while nonetheless incorporating consideration of the 

guidelines as part of its analysis. Therefore, the trial court acted within its discretion when it 

considered the minimum sentence range recommended by the guidelines, in conjunction with the 

circumstances of Wilkerson’s probation violations, and decided to impose a reasonable sentence. 

Affirmed. 

/s/ Christopher M. Murray 

/s/ Brock A. Swartzle 

/s/ Thomas C. Cameron