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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- Appellee, UNPUBLISHED January 23, 2018

v No. 335223 Saginaw Circuit Court

JEREMY LEONARD STAFFORD, LC No. 13

- 039385

- FC

Defendant

- Appellant.

Before: M URPHY

, P .J., and S AWYER and B ECKERING , JJ.

P ER C URIAM

.

Defendant was convicted of numerous offenses, the most serious of which was assault with intent to commit murder, MCL 750.83, arising out of a violent attack against his wife in and around their stopped vehicle on the shoulder of a highway during which defendant attempted several times to throw her into traffic. He was sentenced as a fourth habitual offender, MCL 769.12, to 471⁄2 to 80 years’ imprisonment for the crime

. Th e sentence fell within the minimum sentence guidelines range. Defendant’s sentences for the other crimes are not relevant to this appeal. This Court previously affirmed defendant’s convictions but ordered a Cro sby 1 remand for purposes of sentencing under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015)

. People v Stafford , unpublished opinion per curiam of the Court of Appeals, issued February 9, 2016 (Docket No. 324651). More specifically, this Court remanded the case “for the trial court to determine whether it would have imposed a materially differen[t] sentence under the sentencing procedure described in . . . Lockridge [.]” Id. , unpub op at 4. On remand, the trial

court , declining to resentence de fendant, concluded that it would have imposed the same sentence under advisory guidelines given defendant’s “extremely egregious conduct” and his “history of assaultive crimes.” Defendant appeals that ruling, and we affirm.

On appeal, defendant broadly m aintains that his sentence of 471⁄2 to 80 years in prison is excessive, disproportionate, and unreasonable. Defendant begins his analysis by observing that

under People v Schrauben , 314 Mich App 181 , 196 n 1; 88 6 NW2d 173 (2016) , review of his

sentence is f oreclosed by MCL 769.34(10), considering that the sentence was within the appropriate guidelines range, that there were no scoring errors, and that no inaccurate

1 United States v Crosby , 397 F3d 103 (CA 2, 2005).- 2

- information was relied on in determining his sentence. 2 Defendant proceeds to argue that his sentence should be treated as a departure and thus reviewed for “reasonableness” under the holding in Lockridge regarding departure sentences. See Lockridge , 498 Mich at 392. 3 As best we understand defendant’s argument, he contends that if one eliminates the offense variable scores that entailed judicial fact

- finding, the guidelines range would decrease to such an extent

that his minimum sentence of 471⁄2 years, which was at the very top end of the guidelines range, would reflect a departure, allowing a rev iew for reasonableness. And defendant argues that the sentence was not reasonable or proportionate. Defendant maintains that the constitutional analysis in Lockridge supports his suggested approach and that Schrauben was wrongly decided

because it expres s ed that Lockridge did not effectively alter or diminish MCL 769.34(10). Essentially, defendant is arguing that the evil of judicial fact

- finding recognized in Lockridge is equally problematic in the context of using judicially found facts to increase a guidelines range,

which in turn can foreclose or limit appellate review under MCL 769.34(10) when the imposed

minimum sentence is within that increased guidelines range

.

We first hold that the issue s posed by defend ant are not properly before us. In the initial appeal, defendant, in regard to sentencing, merely requested a Crosby remand pursuant to Lockridge. He did not argue that the sentence was excessive, disproportionate, and unreasonable, nor did defendant ass ert any issue concerning MCL 769.34(10) and the impact of Lockridge on MCL 769.34(10) . The remand was not for the purpose of resentencing, although that was a possibility that could occur as a result of the remand . Instead, the remand was f or the

trial c ourt to determine whether it would have imposed a materially different sentence in light of Lockridge and the now

- advisory guidelines. The trial court answered in the negative, declining to order resentencing. This did not open the door for defendant, on further appellate review, to set forth a host of arguments challenging the length of the sentence that had n ot been previously presented , but which could have been raised by defendant. Defendant’ s arguments exceed the

2 MCL 769.34(10) provides

, in relevant part, that “ [i] f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall

not remand for resentencing absent an error in scoring the sentencing g uidelines or inaccurate information relied up on in determining the defendant’ s sentence. ” The Schrauben panel stated

that “ Lockridge did not alter or diminish MCL 769.34(10).” Schrauben , 314 Mich App at 196 n

1. We do note that MCL 769.34(10) does not a nd cannot preclude constitutional appellate challenges to a sentence, e.g., an argument that a sentence constitutes cruel and unusual punishment. See People v Powell , 278 Mich App 318, 323; 750 NW2d 607 (2008) (MCL 769.34[10]’s limitation on review does n ot appl y to claims of constitutional error , but a sentence within the guidelines range is presumptively proportionate, and a proportionate sentence is not cruel or unusual punishment ); see also People v Conley , 270 Mich App 301, 316; 715 NW2d 377 (2006) (“ It is axiomatic that a statutory provision, such as MCL 769.34[10], cannot authorize action in violation of the federal or state constitutions.”).

3 In People v Steanhouse , 500 Mich 453; 902 NW2d 327 (2017), our Supreme Court held that

under the “reasonableness” standard set forth in Lockridge with respect to sentencing departures, we are to determine whether the trial court abused its discretion by violating the principle of proportionality enunciated in People v Milbourn , 435 Mich 630, 636; 461 NW2d 1 (1990).- 3

- scope of the remand. See Int’l Busi ness Machines Corp v Dep’t of Treasury , 316 Mich App 346, 352; 891 NW2d 880 (2016).

Additionally, as indicated in footnote 2 of this opinion, an appellate challenge of a sentence falling within the appropriate guidelines range can always be made on consti tutional grounds regardless of the limitations in MCL 769.34(10) . While defendant appears to argue that such review encompasses a presumption of proportionality that does not exist with review of a sentencing departure, thereby remaining constitutionally infirm, we fail to see how this claimed difference ultimately results in a deprivation of the Sixth Amendment fundamental right to a jury

trial as described in Lockridge

. 4 Indeed, the whole premise of defendant’s argument does not speak to the length of the sentence imposed by a trial court, but rather it pertains to the extent and

parameters of appellate review of a sentence and differences therein depending on whether a sentence is within or outside the guidelines range

. Defendant has not con vinced us that MCL 769.34(10) need be construed any differently than the manner expressed in our binding caselaw. And nothing in Schrauben would indicate that MCL 769.34(10) can be employed to preclude appellate review of a constitutionally

- based challeng e of a sentence within the guidelines.

Finally, assuming that defendant’ s arguments are properly before us and that he is constitutionally entitled under the Sixth Amendment to have his sentence reviewed for reasonableness and proportionality, absen t any type of proportionality presumption, we simply cannot conclude that the trial court abused its discretion in imposing the sentence, given the horrific nature of the act of violence perpetrated against defendant’s wife, along with defendant’s

extensiv e criminal history. The sentence was proportional to the offense and the offender.

Affirmed.

/s/ William B. Murphy /s/ David H. Sawyer /s/ Jane M. Beckering

4 We do note that there is a distinction between “proportionality” as it relates to the constitutional protection against cruel or unusual punishment, with such propo rtionality being presumed when a sentence is within the guidelines range, and “proportionality” as it relates to reasonableness review of a sentence, which is not constitutional in nature. See People v Bullock , 440 Mich 15, 34 n 17; 485 NW2d 866 (1992) (“ Because the similarity in terminology may create confusion,

we note that the constitutional concept of ‘ proportionality ’ under Const 1963, art 1, § 16 [cruel or unusual punishment prohibition] is distinct from the nonconstitutional ‘ principle of proportion ality ’ discussed in People v Milbourn , 435 Mich 630, 650; 461 NW2d 1 [ 1990 ]

, although the concepts share common roots. ”).