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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

- Appell ee , UNPUBLISHED August 8, 2017

v No. 332624
Macomb Circuit Court

JOHNNIE DEREK ROGERS

, LC No. 13

- 002050

- FH

Defendant

- Appell ant

.

Before: S HAPIRO

, P .J., and G LEICHER and O’B RIEN , JJ.

P ER C URIAM

.

In 2013, defendant drove while intoxicated and collided with another vehicle, killing the

driver . We previously affirmed defendant’s convictions for reckless driving causing death and driving under the influence causing death , but remanded for reconsideration of defendant’s upwardly departing sentences pursuant to the standards set forth in People v Steanhouse , 313 Mich App 1; 880 NW2d 297 (2015) ( Steanhouse I ) . On r emand, the trial court reaffirmed

defendant’s sentences

, citing the reasons provided at the original sentencing hearing. Defendant again appealed. While his current appeal was pending, the Michigan Supreme Court overruled in part the analysis employed by this Court in Steanhouse I

. People v Steanhouse , ___ Mich ___; ___ NW2d ___ (Docket Nos. 152671, 152849, 152871, 152872, 152873, 152947, and 152948, decided July 24, 2017) ( Steanhouse II ) . We now hold that the trial court “abuse[d] its discretion in applying the principal of proportionality by failing to provide adequate reasons for the extent of the departure sentence imposed,” as required by People v Milbourn , 435 Mich 630

, 665; 461 NW2 d 1 (1990) , and therefore remand for resentencing as required by Steanhouse II

, slip op at 19.

I. BACKGROUND

At the time defendant caused a fatal traffic accident, his blood alcohol content was approximately 0.27. Despite blood tests establishing his lev el of intoxication, vehicle computer data proving that he was driving almost 70 miles an hour seconds before the collision, crash scene forensics proving that defendant ran a red light and t

- boned the victim’s vehicle , and the eyewitness accounts of three individuals who were strangers to both defendant and the victim

, defendant insisted that he had done nothing wrong. The jury found the defense incredible and convicted defendant as charged.- 2

- Defendant’s minimum sentencing guidelines range was calculated a t 43 to 86 months, given defendant’s total (offense variable) OV score of 80 points and total prior rec ord variable score of 10 points. The trial court departed upward from the guidelines by 22 months and
sentenced defendant to concurrent terms of 9 to 15 years’ imprisonment. In doing so, the court stated, “I think what bothers me the most is you don’t take responsibility” and “you have a complete lack of remorse.” The court cited the eyewitness accounts of defendant’s reckless driving and defendant’s cl aim that someone tampered with his blood samples. The trial court further indicated that it adopted several factors proffered by the prosecution to support its departure sentence : First, defendant received a speeding ticket 90 minutes before the a ccident for going 84 in a 30 mile

- an

- hour zone , and the vehicle’s black box revealed that defendant was traveling “at least 70, seconds before the accident.” Second, “defendant ne ver has accepted responsibility, ” denying that he “operat[ed] in a reckless manner. ” Third, defendant “n ever acknowledg[ed] the alcohol. ” Rather, defendant accused the detective of tampering with his
blood. Fourth, defendant was “three times over the lega l limit in terms of the alcohol ” at the

time of the accident. Fifth, the “ actual way he was driving seconds before [the accident] . . . exceeding the speed limit, over twice the speed, cutting in and out of traffic.”

As noted, defendant appealed following his trial. This Court affirmed defendant’s convictions, but remanded for furt her sentencing proceedings. Defendant’s appellate attorney

had argued that the trial court failed to state substantial and compelling reasons in support of the departure sentence. While defendant’s first appeal was pending, however, the Michigan Supreme Court decided People v Lockridge , 498 Mich 358 , 391

- 392; 870 NW2d 502 (2015), which rendered the legislative sentencing guidelines advisory only and struck down the former

substantial

- and

- compelling review of departure sentences in favor of a reasonableness standard.
This Court remanded to the trial court for further proceedings under United States v Crosby , 397 F3d 103 (CA 2, 2005). Specifically, if defendant opted to continue with resentencing, we ordered the trial court to explain how the particular departure sentence was reasonable under the prin ciple of proportionality. People v Rogers , unpublished opinion per curiam of the Court of Appeals, issued December 15, 2015 (Docket No. 323412), slip op at 4

- 5.

On remand, defendant chose to proceed with resentencing. The trial court again
sentenced def endant to 9 to 15 years’ imprisonment . In doing so, it reiterated that “remorsefulness did not come until later” and that defendant had not “tak[en] responsibility for anything” involved in the accident. The court then reaffirmed the departure reasons st ated on the record at the original sentencing hearing.

Defendant again appeals his sentences.

II. ANALYSIS

We review departure sentences for an abuse of discretion. Steanhouse II , slip op at 14. A trial court abuses its discretion if the imposed depart ure sentence is unreasonable, i.e.

, if it “violate[s] the principle of proportionality, which require[s] sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” People v M ilbourn , 435 Mich 630, 636; 461 NW2d 1 (1990). See also Steanhouse I

, 313 Mich App at 42 , 45

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- In Steanhouse II , slip op at 15, the Supreme Court affirmed Steanhouse I ’s readoption of
the reasonableness standard set forth in Milbourn

. The Milbourn Court applied the “principle of proportionality,” holding that “ ‘ a given sentence [could] be said to constitute an abuse of discretion if that sentence violate[d] the principle of proportionality

. . . . ’ ” Steanhouse I , 313 Mich App at 45, quoting Milbourn , 43 5 Mich at 636. In imposing sentence, the court must take “ ‘into account the nature of the offense and the background of the offender’ ” Id ., quoting

Milbourn , 435 Mich at 651. Departure sentences “ ‘are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing’ ” as well as when “ ‘the recommended range under the guidelines is disproportionate, in either direction, to the
seriousness of the crime.’ ” Id

. , quoting Milbourn , 435 Mich at 656

- 657. In Steanhouse II

, the Supreme Court further clarified this Court’s objective by again quoting Milbourn : “ ‘[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.’ ” Steanhouse II , slip op at 15, quoting Milbourn , 435 Mich at 662.

Steanhouse I described several “important factors” that might be raised at sentencing to satisfy the reasonableness requirement:

Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumsta nces that are not adequately embodied within the variables used to score the guidelines. 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 t he trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even 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. [ Milbourn , 435 Mich at 659

- 660.]

Factors previously considered by Michigan courts under the proportionality standard included, among others, (1) the seriousness of the offense, People v Houston , 448 Mich. 312, 321; 53 2 NW 2d 508 (1995); (2) factors that were inadequately considered by the guidelines, id . at 324; and (3) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, id . at 323; Milbourn , 435 Mich at 660, the defe ndant’ s misconduct while in custody, Houston , 448 Mich at 323 , the defendant’ s expressions of remorse, id ., and the defendant’ s potential for rehabilitation

. [ Steanhouse I , 313 Mich App at 45

- 46.]

The first inquiry in our reasonableness review is whether there were “circumstances . . . not adequately embodied within the variables used to score the guidelines .” As reiterated in
Steanhouse II , slip op at 18, quoting Lockridge , 498 Mich at 391, “the g uidelines ‘remain a highly relevant consideration in a trial court’s exercise of sentencing discretion’ that trial courts ‘must consult’ and ‘take into account when sentencing.’ ” To conduct such analysis, we must compare the stated reasons for exceeding the guidelines with the scored OVs to determine whether those reasons were already encompassed within. Specifically, we must determine whether the trial court abused its discretion by imposing a departure sentence without- 4

- articulating whether the guidelin es adequately took into account the conduct alleged to support the particular departure. Steanhouse I , 313 Mich App at 45

- 46.

Certain of the reasons cited by the trial court were taken into consideration under the only
four variables scored in this matte r: OVs 3, 9, 17, and 18. OV 3 was scored 50 points because a “[v]ictim was killed” and defendant’s BAC was greater than .08. MCL 777.33(1)(b), (2)(c)( ii ). This encompassed defendant’s level of intoxication and recklessness. OV 9 was scored 10 points be cause “2 to 9 victims . . . were placed in danger of physical injury or death,” MCL 777.39(1)(c), again taking into account defendant’s recklessness. OV 17 was scored 5 points because defendant “failed to show the degree of care that a person of ordinary prudence in a similar situation would have shown,” MCL 777.47(1)(b), accounting for recklessness and excessive speeding. OV 18 was scored 15 points because defendant “operated a vehicle ” with
BAC between .15 and .20. MCL 777.48(1)(b).

Defendant’s exces sive speeds, reckless driving, and specific level of intoxication were therefore already considered under the four OVs that were scored to reach defendant’s total OV score of 80 points. The trial court did not explain how these factors were given inadequate weight. After all, defendant’s level of intoxication was directly taken into account under two OVs. Defendant’s reckless driving was explicitly considered under one factor and was a consideration under two others. And defendant’s excessive speeds wer e part and parcel of his recklessness. Yet, the trial court made no mention of the consideration taken of these factors under the guidelines.

The trial court also relied upon defendant’s failure to accept responsibility and lack of
remorse. While lack o f remorse can provide proper justification for exceeding the legislative sentencing range “[a] court cannot base its sente nce even in part on a defendant’ s refusal to admit guilt. ” People v Yennior , 399 Mich 892; 282 NW2d 920 (1977 ). T he Michigan Supreme

Court has adopted a three

- factor test to determine if sentencing was “ imp roperly influenced by
defendant’ s failure to admit guilt .” A court must consider:

(1) the defendant’ s maintenance of innocence after conviction, (2) the judge’ s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentenc e would not have been so severe. . . . [I]f there is an indication of the three factors, then the sentence was likely to h ave been imprope rly influenced by the defendant’ s persistence in his

innocence. If, however, the record shows that the court did no more than address
the factor of remorsefuln ess as it bore upon defendant’s rehabilitation, then the

c ourt’ s reference to a defendant’ s persistent claim of innocence will not amount to error requiring reversal. [ People v Wesley , 428 Mich 708, 713

- 714; 411 NW2d 159 (1987) (citations omitted).]

Although the failure to admit guilt is an improper consideration, “ the defendan t’s ex pressions of

remorse and the defendant’ s p otential for rehabilitation” are appropriate justifications for sentence departures. Steanhouse I , 313 Mich App at 46 (citation omitted).

The trial court’s reliance on defendant’s lack of remorse was an appropri ate consideration. Defendant’s failure “to admit guilt” is not so clear cut. The court’s actual- 5

- concern was that defendant blatantly lie d about his alcohol consumption, excessive speeds, and
the cause of the accident in the face of actual physical eviden ce

— his blood tests results

, the dat a from his vehicle’s black box , and the accident scene forensics

.

Ultimately, after Steanhouse II , slip op at 19, this Court “must remand to the trial court for resentencing” when a lower court abuses its discretion by “failing to provide adequate reasons for the extent of the departure sentence imposed.” Given the trial court’s failure to acknowledge that certain factors were already considered under the OVs and the court’s use of
defendant’s defensive attitude regard ing the offense as a basis for the departure , we cannot deem the court’s cited reasons “adequate” to support “the extent of the departure sentence imposed.” As such, we must remand, again, for further sentencing proceedings. On remand, the trial court

mus t address whether its cited departure reasons were given inadequate weight under the sentencing guidelines. Further, the court should redirect its concern regarding defendant’s

claims of innocence toward his potential for rehabilitation.

We remand for fu rther sentencing proceedings. We do not retain jurisdiction.

/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher

/s/ Colleen A. O'Brien