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- Appellee, UNPUBLISHED January 30, 2020

v No. 344197 Wayne Circuit Court MARCUS RONNELL CROFF, LC No. 17

- 009474

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- FC

Defendant

- Appellant.

Before: M ETER , P .J., and F ORT H OOD and R EDFORD , JJ.

M ETER , P. J. ( concurring )

. I concur with the majority ’ s well

- reasoned resolution of this case. I write separately only to point out that our Supreme Court ’ s seminal decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015) , although making significant legal changes, has had little practical effect on the restraints placed on a trial judge ’ s sentencing discretion by the guidelines and to urge ou r Supreme Court to reconsider whether MCL 769.34(10) remains viable post

- Lockridge

.

In Alleyne v United States

, 570 US 99

, 114

- 116 ; 133 S Ct 2151; 186 L Ed 2d 314 (2013), the federal Supreme Court determined that, in mandatory sentencing schemes, a crimin al defendant ’ s Sixth Amendment rights are violated when he is sentenced on the basis of facts that are not found by a jury beyond a reasonable doubt. Acknowledging this decision, in Lockridge

, 498 Mich at 391

- 392, our Supreme Court severed our sentencing guidelines, MCL 777.1 et seq

. , to the extent that they were mandatory and “ [struck] down the requirement of a substantial and compelling reason to depart from the guidelines range. ” (Internal quotation marks and citation omitted). Our Supreme Court then necessarily ascribed an advisory role for the guidelines. Id

. at 392; see also People v Steanhouse , 500 Mich 453, 466; 902 NW2d 327 (2017) (reaffirming that Lockridge rendered “ the guidelines advisory in all applications ” ).

Following Lockridge , a trial c ourt may still depart from the guidelines range, even on the basis of judicially found facts, when the trial court determines that doing so is reasonable, id. at 391

- 392, on the basis of “ the seriousness of the circumstances surrounding the offense and the offender

, ” Steanhouse

, 500 Mich at 474 , quoting People v Milbourn , 435 Mich 630, 636; 461 NW2d 1 (1990). “ When a trial court does not depart from the recommended minimum- 2

- sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information. ” People v Schrauben , 314 Mich App 181, 196; 886 NW2d 173, 181 (2016) ; see also MCL 769.34(10)

.
This latter rule blunts the advancements made by Lockridge , leaving intact, for all practical purposes, the constitutional infirmity that plagued the legislative guidelines in the first instance. Under this rule, an appellant may, in relevant part, invoke our review only when the trial court “ departs ” from the g uidelines range. By granting sentences within the legislative guidelines a preferred status, this Court has practically re vived the mandatory system our Supreme Court has already found unconstitutional. In both pre

- and post

- Lockridge systems , the trial court must give additional reasons to justify its de viation from the legislative guidelines and deviations

— or departures as they are often still erroneously described

— will be closely scrutinized by this Court.

Lockridge “ rendered the sentencin g guidelines advisory in all cases. ” Steanhouse , 500 Mich at 470 (emphasis added), resurrecting the principle of proportionality that existed before the adoption of the mandatory guidelines

. Our Supreme Court has reiterated that this principle does not m easure “ proportionality by reference to deviations from the guidelines. ” Id . at 474. Yet, under this Court ’ s precedent, to invoke proportionality review, the defendant must make a threshold showing of a deviation. See Schrauben , 314 Mich App at 196 n 1. In my opinion, the two rules cannot be reconciled. By requiring a criminal defendant to make a threshold showing of a deviation from the guidelines, we have inherently measured the proportionality of his or her sentence by refe rence to the deviation.

O ur principle of proportionality requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the individual offense and the individual offender in each and every case

. Each sentence must be justified; not just sentences outside of the guidelines range . Foreclosing criminal defendants from reasonableness review just because their sentence was within the purely advisory sentencing guidelines only reaffirms the preeminence of the sentencing guidelines, rendering Lockridge a mere paper construct

. It goes without saying that paper artifices are not sufficient to protect the important constitutional rights implicated by Lockridge

.
Since Lockridge , this Court and trial courts have been inundated with challenges to the scoring of the sentencing guidelines , creating a veritable cottage industry . I posit that this inundation is further evidence that the sentencing guidelines retain improper preeminence post

Lockridge . If the sen tencing guidelines are truly advisory in all respects, the ultimate question for our review should be whether the sentence handed down by the trial judge is “ proportionate to the seriousness of the circumstances surrounding the offense and the offender. ” Practically, however, our review often focuses on whether a trial court ’ s score for a particular variable fits within the narrow parameters set by our legislature as further distilled by case law . Setting aside the fact that the statutes setting forth thes e parameters are often overlapping and inarticulate, if the guidelines are purely advisory, it should not matter whether the trial judge scored ten points for a variable concerning which the legislature would have only assigned five points . If the trial j udge ’ s justification for the sentence is sufficient for this Court to conclude that the sentence was proportionate to the offender ’ s criminality and circumstances , then it should be affirmed on appeal; if the justification is insufficient for us to make th at conclusion, the case should be- 3

- remanded. Indeed, this was the practice for many years before the adoption of either the judicial or legislative guidelines. It should matter not whether the legislature would have sentenced the defendant differently; in an indeterminate

- sentencing regime, discretion is posited in the trial judge who hears the case to determine the appropriate sentence.

Our Supreme Court recently declined an application for leave to appeal in People v Ames

, unpublished opinion of the Court of Appeals issued August 10, 2017 (Docket No. 333239), which would have addressed whether MCL 769.34(10) remains viable post

- Lockridge . See People v Ames

, 504 Mich 899 ; 929 NW2d 283 (2019). For the reasons stated above, I would
urge our Supreme Cou rt to revisit this decision, grant leave on Ames or a similar case, and put the final nail in the coffin of the sentencing guidelines.

/s/ Patrick M. Meter