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UNPUBLISHED

June 22, 2023

v No. 362438

Wayne Circuit Court

ROBERT LEE JOHNSON, LC No. 19-008251-01-FH

Defendant-Appellant.

Before: MARKEY, P.J., and JANSEN and K. F. KELLY, JJ.

PER CURIAM.

Defendant appeals by leave granted1the trial court’s judgment of sentence in which he was 

sentenced to 6 to 15 years’ imprisonment for second-degree home invasion. Finding no errors warranting 

reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

In 2019, defendant pleaded guilty to second-degree home invasion, MCL 750.110a(3), admitting 

that he entered a residential home through the window on December 20, 2019, with the intent to steal 

items inside. The trial court sentenced defendant to two years at a Holmes Youthful Trainee Act 

(“HYTA”), MCL 762.11 et seq., correctional facility, and one year of probation following release. 

Defendant was also ordered to pay $1,300 in court costs.

In 2021, a hearing was held at the request of the Department of Corrections for the trial court to 

revoke defendant’s HYTA status because defendant was not complying with the terms of his incarceration

by incurring numerous “misconducts.” At the hearing, the trial court noted defendant’s extensive history 

of misconduct, difficulty with impulse control, and poor decision making. Defendant’s misconducts 

included assault and battery of a staff member, assault and battery of a prisoner, fighting, threatening 

behavior, unauthorized occupation of a cell, destruction and misuse of property, interference with 

 

1 People v Johnson, unpublished order of the Court of Appeals, entered September 12, 2022 (Docket 

No. 362438).
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administrative rules, disobeying direct orders, insolence, substance abuse, theft and possession of stolen 

property, creating disturbances, sexual misconduct, and being out of place. The trial court revoked 

defendant’s HYTA status and ordered that he be resentenced. 

At defendant’s subsequent sentencing hearing, the trial court noted that defendant’s guilty pleas to 

fleeing and eluding a police officer and possession of a loaded firearm were not included in the prior 

record variable score because they postdated the home invasion. The trial court recognized the minimum 

sentencing guidelines range was 0 to 17 months, but announced it was going to depart from the minimum 

sentencing guidelines range because defendant was “not amenable to rehabilitation,” demonstrated in part 

by the fact he committed the home invasion and the other two subsequent offenses after many years in 

juvenile correctional facilities. 

The trial court also noted that defendant did not have a suitable release plan because the existing

plan provided for his release into his father’s supervision, who had been incapable of preventing defendant 

from committing crimes in the past. The trial court also recognized the seriousness of defendant’s home 

invasion offense in support of its departure from the guidelines range. The court highlighted that one of 

the two offenses defendant committed after the home invasion involved a gun, making defendant a danger 

to himself and others. The trial court also relied on the hundreds of violations defendant committed while 

at correctional facilities, stating that it was more than the trial judge had ever seen. Thus, the trial court 

sentenced defendant to 6 to 15 years’ imprisonment and ordered that the previous costs remain in full 

force and effect.

III. DEPARTURE SENTENCE

On appeal, defendant first argues the trial court abused its discretion when it departed from the 

minimum sentencing guidelines range of 0 to 17 months, and imposed a sentence of 6 to 15 years’

imprisonment. We disagree.

A. STANDARD OF REVIEW

This Court reviews sentencing decisions for abuse of discretion. People v Steanhouse, 500 Mich 

453, 471; 902 NW2d 327 (2017). A sentence is an abuse of discretion if it is not “proportionate to the 

seriousness of the circumstances surrounding the offense and the offender.” Id. at 474 (quotation marks 

and citation omitted). While the sentencing guidelines are highly relevant and must be considered by a 

trial court when determining the reasonableness of a sentence, they carry no presumption that an out-ofguidelines sentence is unreasonable: “[T]he key test is whether the sentence is proportionate to the 

seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.” 

Id. at 475 (quotation marks and citation omitted). “A reviewing court may not substitute its own reasons 

for departure. Nor may it speculate about conceivable reasons for departure that the trial court did not 

articulate or that cannot reasonably be inferred from what the trial court articulated.” People v Smith, 482 

Mich 292, 318; 754 NW2d 284 (2008).

B. ANALYSIS

The sentencing guidelines were initially enacted to promote proportionate sentences by 

incorporating the principle of proportionality through their use of offense variables and prior offense 

variables to facilitate calculation of a recommended minimum sentence range. Id. at 305. Thus, the 
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guidelines provide “objective factual guideposts that can assist sentencing courts in ensuring that the 

offenders with similar offense and offender characteristics receive substantially similar sentences.” Id. 

at 309 (quotation marks and citations omitted).

In Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States 

Supreme Court held that the Sixth Amendment2right to a jury trial requires that any fact other than a prior 

conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a 

jury and be proved beyond a reasonable doubt. Apprendi, 530 US at 476-480. In Alleyne v United States, 

570 US 99, 103; 133 S Ct 2151; 186 L Ed 2d 314 (2013), this was expanded to include any fact that would 

increase the statutory minimum.

In 2015, the Michigan Supreme Court held that the Legislature’s sentencing guidelines violated 

the Sixth Amendment insofar as they “require[d] a court to increase a defendant’s minimum sentence 

beyond the minimum sentence authorized by the jury’s verdict alone.” People v Lockridge, 498 Mich 

358, 378; 870 NW2d 502 (2015). The Lockridge Court concluded that the appropriate remedy for the 

constitutional violation was to treat the guidelines as advisory only, such that courts were free to sentence 

outside the guidelines’ minimum sentence range without finding and articulating “substantial and 

compelling” reasons for doing so, and that the standard of review for a sentence outside the range would 

be reasonableness. Id. 392. However, the Court concluded that trial courts must “continue to consult the 

applicable guidelines range and take it into account when imposing a sentence.” Id.

In Steanhouse, the Michigan Supreme Court held that it would be a violation of the Sixth 

Amendment for the sentencing guidelines to carry a presumption that an out-of-guidelines sentence was 

disproportionate, noting that the United States Supreme Court had prohibited “presumptions of 

unreasonableness for out-of-guidelines sentences.” Steanhouse, 500 Mich at 474. Accordingly, the Court 

rejected the notion that an out-of-guidelines sentence should “alert the appellate court to the possibility of 

a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative 

sentencing scheme.” Id. (quotation marks and citations omitted).

Lastly, in People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458 (2017), this Court 

interpreted the requirement to “consult and take into account” the guidelines, stating that “[b]ecause the 

guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it 

follows that they continue to serve as a ‘useful tool’ or ‘guideposts’ for effectively combating disparity in 

sentencing.” Thus

relevant factors for determining whether a departure sentence is more proportionate than a 

sentence within the guidelines range continue to include (1) whether the guidelines 

 

2 The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 

trial, by an impartial jury of the state and district wherein the crime shall have been 

committed, which district shall have been previously ascertained by law, and to be 

informed of the nature and cause of the accusation; to be confronted with the witnesses 

against him; to have compulsory process for obtaining witnesses in his favor, and to have 

the assistance of counsel for his defense. [US Const, Am VI.]
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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. [Id. at 525 

(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 525 n 9 (quotation marks and citations 

omitted).

Turning to the present case, the trial court explained it was imposing a minimum sentence with 

three additional years to the three previously imposed in order to give defendant time to mature, reflect, 

and reach the point where he was no longer a danger to himself or others. The trial court justified departing 

from the minimum sentencing guidelines range by noting defendant was “not amenable to rehabilitation,”

which was demonstrated by defendant’s commission of three crimes after many years in juvenile 

correctional facilities. The trial court also explained it was departing from the sentencing guidelines 

because the guidelines did not consider: (1) defendant’s two convictions that occurred after the home 

invasion and, therefore, not part of the priorrecord variable score; (2) the dozens of misconducts defendant 

committed while in correctional facilities; (3) defendant’s lack of behavioral progress over the eight years 

of court and adult supervision; (4) the dangerousness of defendant’s crimes; and (5) the inadequate 

supervision defendant would have if released. Thus, the trial court did not abuse its discretion when it 

departed from the guidelines because the court acknowledged and provided reasons for its departure. See 

Dixon-Bey, 321 Mich App at 525 (stating that trial courts must justify its departure from the sentencing 

guidelines by explaining why the sentence imposed is more proportionate to the offense and offender than 

a sentence within the guidelines range).

We turn next to the issue of whether the extent of the trial court’s departure was reasonable. The 

court repeatedly emphasized the seriousness of second-degree home invasion, noting defendant entered a 

residence, stole intimate and expensive items, and seriously violated the victim’s privacy. The court also 

considered many factors not addressed by the guidelines, including the fact there was no relationship 

between the victim and defendant and defendant’s hundreds of misconducts while in custody. See People 

v Walden, 319 Mich App 344, 352-353; 901 NW2d 142 (2017) (“[F]actors not considered by the 

guidelines [include] 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.”). Additionally, when increasing defendant’s minimum sentence, the trial court took into 

account defendant’s subsequent convictions for fleeing and eluding a police officer and unlawfully 

possessing a loaded firearm, both of which were not accounted for by the sentencing guidelines.

The trial court determined that defendant was not ready to be released on probation as evidenced 

by his incurring 60 to 80 additional misconducts during his placement at the HYTA correctional facility, 

including misconducts that occurred between the first HYTA revocation hearing on June 3, 2021, and the 

continuation of the HYTA revocation hearing on July 14, 2021. Importantly, defendant’s misconducts 

included violent behaviors such as assault and battery, threatening behavior, and fighting. In the trial 

court’s view, defendant’s continued inability to control his behavior, including up until the final revocation 

hearing, evidenced he was not ready to be released on probation. 

Defendant contends certain misconducts resulted from situations where he had to defend himself 

from other inmates. Even if this were true and somehow excused his behavior, many other misconducts 
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are unrelated to self-defense, such as disobeying direct orders, interference with rules, insolence, theft, 

substance abuse, sexual misconduct, and assaulting a prison guard, among others. This leaves defendant 

with a long list of unjustifiable misconduct. Furthermore, defendant admitted he was “racking up”

misconducts simply because he was frustrated with his incarceration. Thus, we have little trouble 

concluding that it was reasonable for the trial court to add three additional years to defendant’s original 

sentence in order to give defendant time to mature and rehabilitate, as well as protect the public from 

defendant’s violent tendencies and uncontrolled behavior.

There is nothing in the record demonstrating the trial court clearly erred when it found defendant 

was not amenable to rehabilitation and needed time to mature and grow before being released—all factors 

the trial court relied on in departing upward from the minimum sentencing guidelines range. See People 

v Muhammad, 326 Mich App 40, 63; 931 NW2d 20 (2018) (holding a trial court’s findings of fact are 

reviewed for clear error). Indeed, defendant repeatedly failed to conduct himself properly at the HYTA 

facility, supporting the trial court’s determination that defendant was not amenable to rehabilitation. “This 

Court has affirmed upward departure sentences when the guidelines minimum sentence range did not 

adequately account for a defendant’s . . . poor prospects for rehabilitation.” People v Abcumby-Blair, 335 

Mich App 210, 243; 966 NW2d 437 (2020). The minimum sentencing guidelines range did not account 

for defendant’s misconduct at the HYTA correctional facility or his subsequent offenses, both of which 

evidenced defendant’s failure to rehabilitate. See Walden, 319 Mich App at 352-353 (noting a defendant’s 

misconduct while in custody is not a factor that is considered by the sentencing guidelines). Therefore, 

the trial court’s finding that defendant was not amenable to rehabilitation, even after having spent 809 

days in a HYTA correctional facility, was not clearly erroneous and supported its decision to sentence 

defendant to an additional three years.

Though defendant claims on appeal that he was unable to conduct himself properly because he 

could not get the same medication in the HYTA correctional facility that he was taking before going into 

custody, defendant did not make this claim in the lower court, nor has he factually supported this argument. 

Therefore, we decline to address it. See People v King, 297 Mich App 465, 474; 824 NW2d 258 (2012) 

(“An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment 

of the issue.”). Additionally, defendant claims the trial court erred by imposing three additional years to 

give him time to mature when the trial court did not know when defendant would mature. While it is true 

the trial court could not definitively know when defendant would mature, the trial court knew defendant 

had not improved his behavior in the 809 days he had been in a HYTA correctional facility, nor during

the eight years defendant had been involved in the legal system. The trial court sentenced defendant to an 

additional three years based on defendant’s failure to reform and his unpreparedness for release. Thus, 

defendant’s sentence of 6 to 15 years was not unreasonable, and we affirm it.

IV. MCL 769.1k

Defendant also argues his due-process right to be sentenced by a neutral judge was violated 

because the trial court judge was financially incentivized to impose high court costs given that the 

payments are used to finance the court. This Court has previously determined MCL 769.1k(1)(b)(iii) is 

constitutional in response to the same argument defendant raises in this case. See People v Johnson, 336 

Mich App 688; 971 NW2d 692 (2021), lv gtd 509 Mich 1094 (2022). Accordingly, defendant’s argument 

is rejected under binding precedent from this Court.

A. STANDARD OF REVIEW
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Defendant failed to raise this issue in the trial court. Thus, this Court reviews unpreserved 

constitutional claims for plain error affecting a defendant’s substantial rights. People v Stokes, 333 Mich 

App 304, 307; 963 NW2d 643 (2020). To show plain error, a defendant must demonstrate that “1) an 

error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected 

substantial rights.” Id. (quotation marks and citation omitted).

B. ANALYSIS

At the time defendant was sentenced, MCL 769.1k stated in relevant part:

(1) If a defendant enters a plea of guilty or nolo contendere or if the court determines 

after a hearing or trial that the defendant is guilty, both of the following apply at the time 

of the sentencing or at the time entry of judgment of guilt is deferred by statute or 

sentencing is delayed by statute:

(a) The court shall impose the minimum state costs as set forth in section 1j of this 

chapter.

(b) The court may impose any or all of the following:

(i) Any fine authorized by the statute for a violation of which the defendant entered 

a plea of guilty or nolo contendere or the court determined that the defendant was guilty.

(ii) Any cost authorized by the statute for a violation of which the defendant entered 

a plea of guilty or nolo contendere or the court determined that the defendant was guilty.

(iii) Until October 1, 2022, any cost reasonably related to the actual costs incurred 

by the trial court without separately calculating those costs involved in the particular case, 

including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court buildings and 

facilities.

(iv) The expenses of providing legal assistance to the defendant.

(v) Any assessment authorized by law.

(vi) Reimbursement under section 1f of this chapter. [Emphasis added.]

As noted, this Court has previously considered the same argument and rejected it. In Johnson, 336 

Mich App at 693, the defendant argued MCL 769.1k(1)(b)(iii) was unconstitutional asit results in criminal 

defendants being deprived of their “due-process right to appear before an impartial decision-maker 

because the statute incentivizes all judges to convict criminal defendants and impose court costs to raise 

revenue for the courts.” The defendant also argued MCL 769.1k(1)(b)(iii) violated separation-of-powers 
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principles by preventing the judicial branch from abiding by its constitutional obligation to maintain 

impartiality in criminal trials. Id. at 693. 

We rejected the implication that a judge’s discretion to impose costs under MCL 769.1k(1)(b)(iii) 

is unbridled, noting judges are bound to impose costs reasonably related to the actual costs incurred by 

the trial court and must have a factual basis for the costs imposed. Id. at 700-701. Regarding the 

defendant’s separation of powers argument, this Court concluded that the defendant provided no evidence 

of a direct correspondence between the court costs imposed and the money received by the cost-imposing 

court. Id. at 701. The defendant bore the burden to prove there was no set of circumstances under which 

a judge in Michigan could act impartially under MCL 769.1k(1)(b)(iii), which the defendant failed to do. 

Id. at 701-702. Accordingly, we rejected the defendant’s argument that MCL 769.1k(1)(b)(iii) denied 

defendants their due-process right to be sentenced by an impartial judge because of improper financial 

incentives to convict defendants and impose court costs.

Here, defendant argues MCL 769.1k(1)(b)(iii) is unconstitutional because it creates pressure on 

judges to convict defendants and impose court costs, undermines criminal defendants’ due-process right 

to appear before a neutral judge, and violates the separation of powers by preventing the judicial branch 

from accomplishing its constitutional obligation to be impartial. These are the same arguments rejected 

in Johnson, which we are bound to follow. See MCR 7.215(C)(2) (“A published opinion of the Court of 

Appeals has precedential effect under the rule of stare decisis.”).

3

Affirmed.

/s/ Jane E. Markey 

/s/ Kathleen Jansen 

/s/ Kirsten Frank Kelly 

 

3 Though leave to appeal has been granted by the Supreme Court in Johnson, the case remains binding 

precedent until the Supreme Court reverses the decision. See MCR 7.215(C)(2) (“[A] Supreme Court 

order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court 

of Appeals.”).