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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- Appellee, UNPUBLISHED February 15, 2018

V No. 336352 Chippewa Circuit Court

KEVIN PATRICK TITUS

, LC No. 15

- 001856

- FH

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,

v No. 337177 Chippewa Circuit Court STACY MARION LINKLATER, LC No. 16

- 001989

- FH

Defendant

- Appellant.

Before: M ARKEY , P.J., and M. J. K ELLY and C AMERON , JJ.

P ER C URIAM

.

In Docket No. 336352, d efendant Kevin Titus pleaded guilty to reckless driving causing death, MCL 257.626(4), and was sentenced to 10 to 15 years’ imprisonment. In Docket No. 337177, defendant Stacy Linklater pleaded no contest to operating a vehicle while intoxicated causing death, MCL 257.625(4), and also was sentenced to 10 to 15 years’ imprisonment. This Court granted each defendant’s delayed application for leave to appeal and later consolidated the two appeals. 1 W e vacate each defendant’s sentence and remand for resentencing

.

I. UNDERLYING FACTS AND PROCEDURAL HISTO RIES OF THE CASES

1 People v Titus , unpublished order of the Court of Appeals, entered December 19, 2017 (Docket No. 336352); People v Linklater

, unpublished order of the Court of Appeals, entered December 19, 2017 (Docket No. 337177).- 2

- Defendants’ convictions arise from separate incidents in Chippewa County, Michigan.

At his guilty plea, d efendant Titus admitted th at he was driving an 18

- wheel tractor trailer on I

75 in Sault Ste. Marie

, Michigan, and when app roaching a toll plaza at the International Bridge

, he was looking at his cell phone and no t paying attention to the road. As a result, defendant

Titus crashed into several vehicles, causing the death of one person and severe injuries to several

others. In exchange for defendant Titus ’s plea, the prosecution agreed to dismiss two additional counts of reckless driving causing serious injury, MCL 257.626(3).

D efendant Linklater was driving a vehicle after consuming several beers at a restaurant.

Her southbound car crossed the center line of the road and struck head on a northbound vehicle

. The northbound vehicle was occupied by 19

- year

- old Jared Baragwanath a nd 19

- year

- old Jocelyn Preville. Baragwanath “received critical injuries from the accident” and died two days later “due to hypoxic brain injury and multiple blunt force traumas” received in the accident. Preville was taken to a nearby hospital for a clo sed head injury and contusions all over her body

. She was released from the hospital after several days but still suffered residual effects from the collision. A laboratory analysis of defendant Linklater’s blood taken shortly after the accident

reveale d that she had a blood alcohol content of .179 grams of alcohol per 100 milliliters of blood. In addition, THC, the chemical constituent of marijuana, was found in her blood stream.

T he two defendants were sentenced on separate dates by the same trial court judge. The scoring of each defendant’s sentencing guidelines produced a recommended minimum sentence

range of 29 to 57 months

. Neither defendant had a prior criminal history.

At d efendant Titus’s sentencing hearing, the court heard from several of the injured

victims ; they expressed continued emotional distress and physical effects from the accident, as well as economic loss. Titus expressed remorse for his actions.

At defendan t Linklater’s sentencing, the court heard from Preville, who expressed grief over the loss of her close friend Baragwanath. The court also heard from Baragwanath’s father who explained the emotional distress to the family since Baragwanath’s death. Linkl ater apologized to the victims and their families and expressed remorse for her conduct. The court also reviewed 15 letters submitted in support of Linklater’s remorse, character, and integrity.

In both cases, the trial court departed from the recommen ded minimum sentence range of

29 to 57 months and imposed a maximum sentence of 10 to 15 years’ imprisonment.

The trial court explained its decision to sentence defendant Titus as follows:

The court cannot ignore that the Michigan Legislature has sent a strong single [sic, presumably “signal”] of its view of the seriousness of the offense by causing death by reckless driving by providing a maximum sentence of 15 years for imprisonment. In the circumstances the court must give effectivity to the

intent of the mood of the Michigan Legislature expressed through legislation.

* * *

By definition [this crime] is one which always gives rise to the extremely serious harm, the death of a victim.

. . . On the other hand an offender of reckless driving did n ot intend to cause a death and serious injuries to other

. . . even in this extreme case where the defendant was distracted by deliberating [sic,- 3

- presumably “deliberately”] viewing his newsfeed on Facebook. The fact that

someone died and others were serio usly injured is relevant to the sentence.

. . . [T]he defendant not only caused the death but serious injuries to others. The defendant in this case knowingly put more than one person at risk and the occurrence was reasonably foreseeable. In this case t he death and serious injuries to other is an aggravating factor.

Also the defendant was viewing his Facebook and not paying attention to his driving aggravates the seriousness of this offense. The defendant’s proper

course of action was to not view his F acebook while driving.

. . . The significant aggravating circumstances contributing to the acts in the present case is a fact the defendant, by his own admission, was driving while looking at his newsfeed on Facebook in total disregard of his driving

resp onsibility.

The trial court provided the following reasons for imposing a maximum sentence of 10 to 15 years for defendant Linklater:

It has been represented to the court by [Linklater’s attorney] that Defendant Stacy Linklater is of good character and i ndeed the presentencing report has not identified anything to the contrary.

Section 257.625[(4)], so far as relevant, reads as follows. A person who operates a vehicle while intoxicated causing death is guilty of a felony punishable by imprisonment by no t more than fifteen years or a fine of not; [sic] less than $2,500.00 or more than $10,000.00 or both.

The court cannot ignore that the Michigan Legislature has sent a strong signal of its view of the seriousness of the offense of causing death by operati ng a motor vehicle while intoxicated by providing for a maximum sentence of fifteen years of imprisonment. In the circumstances the court must give efficacy to the intent of the mood of the Michigan Legislature expressed through legislation.

I would opi ne that unless good reason or special circumstances exists an offender convicted of causing death by operating a motor vehicle while intoxicated must expect a custodial sentence upon conviction. This offense causes particular difficulty, causes particular difficulty for sentencer.

By definition it is one which always gives rise to the extremely seriousness of the harm, the death of a victim. Understandably, this often leads to calls from the family of the victim and from the wider community for tough

se ntencing.

On the other hand, an offender of operating a motor vehicle while intoxicated did not intend to cause a death and serious injury to other; but even- 4

- though the defendant may not have intended to cause a death or serious injury it

must be noticed that a result of persons operating a vehicle while intoxicated causing death.

Two hundred and fifty thousand people have died in alcohol related incidents in the last ten years. In other words, approximately twenty five thousand people die annually in alcohol related events. Every fifty three minutes someone is killed by a drunk driver and this is an extremely preventable crime.

You don’t drink and drive.

The fact that a person died and another was seriously injured is relevant to

the sentence. But the primary consideration must always be to the culpability of

the offender.

Three points deserve particular attention. First, the defendant not only caused death but serious injury to another. The defendant in this case knowingly put the decedent and h is passenger at risk by operating a motor vehicle while intoxicated in excess of twice the legal limit. As such the occurrence was reasonably (sic) foreseeable.

In this case, the death and serious injury to another is an aggravating

factor. Also the f act that the defendant was operating a vehicle with THC in her blood aggravates the seriousness of this offense. The material and foreseeable consequences of the defendant’s actions are dangerous to life and the defendant acted with conscious disregard fo r these dangers. Road fatalities must be treated with enhanced seriousness by the court.

* * *

Taking all of these matters as I’ve stated into consideration towards sentencing the court considers this case to be fit . . . for the maximum sentence th e court can impose by statute which in this case is ten years.

Therefore it is the order and disposition of this court Ms. Linklater that you be sentenced to the term, to the (sic) Michigan Department of Corrections for a period of ten years to fifteen ye ars with credit for eleven days served

* * *

First and foremost Ms. Linklater this sentence is punitive in nature. It is for the protection of society. It’s to serve as a deterrent effect and I hope it has that effect. And it’s to allow you the opportunity to rehabilitate yourself in the Michigan Department of Corrections and I hope you take advantage of those opportunities.

Both defendants argue on appeal that the trial court abused its discretion by departing from the sentencing guidelines rec ommended minimum sentence range and imposing sentence s that are unreasonable and disproportionate.- 5

- I I . APPLICABLE LEGAL PRINCIPLES

Although Michigan’s sentencing guidelines are only advisory, a trial court must still “determine the applicable guidelines range and take it into account when imposing a sentence.” People v Lockridge , 498 Mich 358, 365; 870 NW2d 502 (2015). “ A sentence t hat departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.” Id. at
392. “[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the ‘principle of proportionality’ set forth in People v

Milbourn , 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and

the offender.’ ” People v Steanhouse , 500 Mich 453, 459

- 460; 902 NW2d 453 (2017). The principle of proportionality recognizes that “the Legislature, in setting a range of allowable punishments for a single felony, intended persons whose conduct is more harmful and who have more serious prior criminal records to receive greater punishment than those whose criminal behavior and prior record are less threatening to society.” Milbourn , 435 Mich at 651.

Circumstances insufficiently accounted for in the guidelines and fa ctors that are not considered by the guidelines are appropriate considerations in determining the proportionality of a sentence imposed. People v Houston

, 448 Mich 312, 324

- 325; 532 NW2d 508 (1995). “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.” Milbourn , 435 Mich at

660. Nonetheles s, “[i]n some cases, there may be important sentencing factors that are not included in the sentencing guidelines.” Id. But “[e]ven 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

.

A person guilty of reckless driving causing death is subject to a statutory maximum

sentence of 15 years in prison. MCL 257.626(4). A person who operates a vehicle while

intoxicated and causes the death of another person is similarly subject to a statutory maximum sentence of 15 years in prison. MCL 257.625(4)(a). Pursuant to MCL 769.34(2)(b) “ [t] he court shall not impose a minimum sentence, including a departure, that exceeds 2/3 of th e statutory maximum sentence.” MCL 769.34(2)(b). Thus, both defendants were subject to a statutory maximum sentence of 15 years, and each received a 10

- year minimum sentence, the highest minimum sentence that a court could impose.

A. APPLICATION TO D EFE NDANT TITUS

T he gravity of defendant Titus’s crime is not at dispute . D efendant Titus concedes that

his crime is serious: a victim died. That defendant Titus received 80 total offense variable ( OV ) points, more than the 75 points necessary to place him in the highest level of offense severity for a Class C felony and for beyond which the guidelines make no provision, MCL 777.64, indicates

that this is a serious manifestation of that offense. Defendant Titus admitted crashing into

several vehicles; the drivers of the other vehicles cou ld do nothing to avoid a collision because they were waiting in line at a toll booth. Additionally, the accident caused several victims to

suffer extremely severe injuries just short of death.- 6

- The t rial court cited the death of a victim and serious injuries to other victims as aggravating circumstances that required a depart ure from the guidelines. But the death of a

victim is not its elf an aggravating circumstance. Indeed, it is an element of t he offense of reckless driving causing death . MCL 257.626(4). Although defendant Titus also caused se rious injuries to other victims, the guidelines sufficiently accounted for that in the scoring of OVs 3

and 9. Defendant Titus raised no objection to a sco re of 25 points for OV 3, which is what MCL 777.33(1)(c) prescribes where the offender caused a victim to suffer from a “life threatening or permanent incapacitating injury.” Nor did defendant Titus object to the 25 points he was assessed under OV 9, whic h MCL 777.39(1)(b) prescribes where “there were 10 or more victims who were placed in danger of physical injury or death, or 20 or more victims who were placed in danger of property loss.”

The trial court stated that another aggravating circumstance was t hat “defendant [Titus]

. . . was driving while looking at his newsfeed on Facebook in total disregard of his driving responsibility

. ” But operating a vehicle with great disregard for the safety of other persons or property is an element of the offense. M CL 257.626(2) and (4). Further, defendant

Titus was assess ed 10 points under OV 17, which MCL 777.47(1)(a) prescribes where “[t]he offender showed a wanton or reckless disregard for the life or property of another person.” Accordingly, defendant Titus ’s recklessness was taken into account by the guidelines. They

should not be considered aggravating factor s for purposes of imposing an upward departure

sentence

.

Plaintiff implies that points could have been scored under OV 5, which concerns psychological injury to victims’ family members, see MCL 777.35, and that this Court should bear that in mind when evaluating the departure sentence. It is beyond the scope of permissible appellate re view to consider the guidelines scoring in this case as if it includ ed points for an OV the sentencing court actually, and without objection, scored at zero, or otherwise consider justification for the sentencing decision beyond what the sentencing court provided. People v

Smith , 482 Mich 292, 314 n 50; 754 NW2d 284 (2008) (noting that “appellate courts may not review the record to search for reasons to uphold a sentence that the trial court failed to justify”).

Even if some depart ure from the guidelines range were justified, if the trial court fa il s to adequate ly justify the extent of the departure imposed, this Court must remand for resentencing.

Steanhouse , 500 Mich at 476. In other words, the trial court is required to explain why the sentence imposed is more proportionate to the offense and the offender than a different sentence

would have been. Smith , 482 Mich at 311. In this case, the trial court articulated the reasons for the sentence imposed, but it failed to connect those reasons to the extent of the chosen departure.

For these rea sons, we conclude that the trial court abused its discretion by imposing the

maximum authorized sentence i n excess of the guideline s recommendation without adequate justification. Accordingly, we vacate defendant Titus ’s sentence and remand for resentenci ng.

B . APPLICATION TO DE FENDANT LINKLATER

The trial court expressed its view that a maximum sentence of 10 to 15 years’ imprisonment was necessary to comport with the intent and “mood” of the Legislature to punish

offenders for conduct involving the op eration of a vehicle while intoxicated and causing another- 7

- person’s death. We agree that the intent of the Legislature plays an important role in determining a proportionate sentence. In Milbourn , 435 Mich at 636, our Supreme Court explained:

The Legisla ture in establishing differing sentence ranges for different offenses across the spectrum of criminal behavior has clearly expressed its value judgments concerning the relative seriousness and severity of individual criminal offenses. This statutory sente ncing scheme embodies the “principle of proportionality” according to which sentences are proportionate to the seriousness of the matter for which punishment is imposed. In our judgment, it is appropriate

— if not unavoidable

— to conclude that, with regard t o the judicial selection of an individual sentence within the statutory minimum and maximum for a given offense, the Legislature similarly intended more serious commissions of a given crime by persons with a history of criminal behavior to receive harsher sentences than relatively less serious breaches of the same penal statute by first

time offenders. We believe that the Legislature’s purpose is best served by requiring judicial sentencing discretion to be exercised according to the same principle of prop ortionality that has guided the Legislature in its allocation of punishment over the entire spectrum of criminal behavior.

Defendant Linklater was convicted of violating MCL 257.625, which makes delineations

based on the harm that ensued from the offense. Subsection (4) of the statute authorizes heightened punishment when drunk driving causes the death of a victim, with the maximum sentence for such an offense being 15 years. MCL 257.625(4)(a). In contrast, subsection (5)

states that i f the drunken driving causes serious impairment to a victim, then the maximum punishment would be five years. MCL 257.625(5)(a). By causing the death of another person, Linklater became subject to the higher penalty. But that does not mean that the Legi slature contemplated or intended that a maximum sentence of 10 to 15 y ears’ imprisonment be imposed in every such situation. H ad that been its intent , the Legislature would have required a mandatory minimum sentence for an offender who operates a vehicle under the influence of

alcohol and causes another person’s death

. It still remains incumbent upon the trial court to determine an appropriate minimum sentence by applying the principle of proportionality from

Milbourn

.

The trial court appropriately lab eled as “serious” conduct involving driving while intoxicated and causing the death of another person. But the trial court ignored that the se two factors, in addition to being elements of the offense of which defendant Linklater was convicted,

are also ac counted for in the sentencing guidelines. The Legislature has incorporated the principle of proportionality into the sentencing guidelines. See People v Babcock , 469 Mich 247, 263

- 264; 666 NW2d 231 (2003)

. Defendant Linklater received a 50

- point score f or OV 3 specifically because a victim was killed and death resulted from the commission of a crime that involved the operation of a vehicle while the offender was under the influence of alcohol. MCL 777.33(2)(c). In addition, defendant Linklater was asse ssed 15 points for OV 18, which is the appropriate score when an offender operates a vehicle “when his or her bodily alcohol content was 0.15 grams or more but less than 0.20 grams per 100 milliliters of blood.” MCL 333.48(1)(b). Together, the scoring of OVs 3 and 18 accounted for the fact that defendant Linklater was operating a vehicle with a blood alcohol level of 0.179 and caused the death of- 8

- another person . Because these factors are accounted for in the scoring of the statutory OVs,

which are intend ed to account for the seriousness of an offense, it was improper for the court to rely on these same factors a second time as denoting the “mood” of the Legislature and to justify a departure sentence of more than twice the high end of the sentencing guide lines range.

The trial court also cited as aggravating factors the fact that defendant Linklater’s conduct caused injuries to another person and that she also had THC in her system. These factors do not appear to be accounted for in the scoring of the guidelines. We note, however, that there is no information indicating how long the THC had been in defendant Linklater’s

system, or what effect, if any, it had on her driving. To the extent that these factors may support some departure from the s entencing guidelines range, we cannot conclude that they justify a

maximum sentence th at is more than double the high end of the sentencing guidelines range.

Moreover, in assessing proportionality and reasonableness , the court must also consider

the bac kground of the offender . Defendant Linklater had n o prior convictions of any kind or any alcohol

- related arrests. She showed remorse at sentencing, and she took responsibility for her actions by pleading no contest to the charge without any bargain for s entencing leniency. Further, the trial court reviewed 15 letters submitted in support of Linklater’s remorse, character, and integrity. The trial court acknowledged at sentencing that there was no evidence to refute Linklater’s “good character.” The tri al court focused solely on the circumstances of the offense to justify imposing the maximum sentence allowed. The court’s imposition of a maximum sentence on defendant Linklater, a first

- time offender who had expressed remorse for her

conduct and had sign ificant community support , leaves no room for the principle of proportionality to operate against more serious offenders who, for example, have shown a propensity to drink and drive again. See, e.g., People of Solmonson , 261 Mich App 657, 669;

683 NW2d 76 1 (2004), and People v Miller , 206 Mich App 638, 639; 522 NW2d 697 (1994).

For these reasons, we conclude that defendant Linklater’s sentence of 10 to 15 years’ imprisonment i s di sproportionate and, in turn, unreasonable. Therefore, we vacate defendant Linklater’s sentence and remand for resentencing.

Defendant Linklater also argues that a different judge should undertake her resentencing because of the high emotions of the case. In People v Evans , 156 Mich App 68, 72; 401 NW2d 312 (1986), quoting United States v Sears, Roebuck & Company, Inc. , 785 F2d 777, 780 (CA 9, 1986), this Court set forth t hree considerations to weigh when deciding whether resentencing should occur before a different judge:

“ (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously

- expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appear ance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. ”

In this case, a lthough the sentencing judge expressed previous views about the punitive

nature of th is punishment and the legislative intent on harsh punishments, we are not persuaded

that t he judge would have substantial difficulty putting these views “out of his mind.” Further,- 9

- reassignment is not necessary to preserve the appearance of justice. Ther efore, we decline defendant Linklater’s request that resentencing occur before a different judge.

We vacate both defendant Titus’s sentence in Docket N o. 336352 and defendant

Linklater’ s sentence in Docket No. 337177 and remand both cases for resentencing

. We do not retain jurisdiction.

/s/ Jane E. Markey /s/ Michael J. Kelly

/s/ Thomas C. Cameron