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UNPUBLISHED

July 9, 2019

v No. 348991

Grand Traverse Circuit Court

SAMANTHA LYNN HUGHES, LC No. 2018-013004-FH

Defendant-Appellant.

Before: JANSEN, P.J., and MARKEY and BECKERING, JJ.

MARKEY, J. (dissenting).

For the reasons stated in this opinion, I strongly disagree with the majority’s holding, so I 

dissent to both the majority’s opinion and to the order it is issuing in tandem. 

I fully agree with the majority’s recitation of the procedural history of the case and that 

defendant’s minimum sentence of 13 months fell within the guidelines range and did not 

constitute a departure under People v Schrauben, 314 Mich App 181, 194-195; 886 NW2d 173 

(2016). Accordingly, MCL 769.34(10) is implicated, and it 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 guidelines or inaccurate information relied upon in determining the defendant's 

sentence.” (Emphasis added.)

Defendant does not contend that the trial court erred in scoring the sentencing guidelines, 

nor does she argue that she was sentenced on the basis of inaccurate information. Therefore, 

MCL 769.34(10), standing alone, would require this panel to affirm defendant’s sentence. I 

recognize, however, that MCL 769.34(10) does not and 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 not apply to claims of constitutional error); 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.”).
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The majority posits that defendant’s sentence is not proportionate given that the court set 

the minimum sentence of 13 months on the basis of defendant’s pregnancy due date in order to 

protect her unborn child.1 A sentence within the guidelines range is presumptively

proportionate. Powell, 278 Mich App at 323. And a defendant can only overcome the 

presumption by presenting unusual circumstances that would render a presumptively 

proportionate sentence disproportionate. People v Bowling, 299 Mich App 552, 558; 830 NW2d 

800 (2013). The principle of proportionality requires sentences imposed by the trial court to be 

proportionate to the seriousness of the circumstances surrounding the offense and the offender. 

People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).

I fail to see the logic in the majority’s determination that the 13-month minimum 

sentence imposed by the trial court violated the principle of proportionality because of the 

reasons the court gave for imposing that sentence. A sentence is either proportionate to the 

seriousness of the circumstances surrounding the offense and the offender or it is not. It took 

defendant less than three months to violate her probation, and she has 16 prior misdemeanors. A 

sentence of 13 to 24 months’ imprisonment can hardly be called disproportionate under the 

circumstances. In fact, one could reasonably view the sentence as being lenient, especially 

considering defendant’s extensive criminal history. The sentence was proportionate regardless 

of the reasons given by the court for imposing the sentence. And there were no unusual 

circumstances that rendered the presumptively proportionate sentence disproportionate.2 

As I indicated above, a valid constitutional claim trumps the mandate in MCL 

769.34(10). But on review of defendant’s brief on appeal, she completely fails to develop her 

cursory assertion that the trial court’s reason for imposing the sentence speaks to fundamental 

unfairness under US Const, Am XIV, and Const 1963, art 1, § 2. “ ‘It is not enough for an 

appellant in his brief simply to announce a position or assert an error and then leave it up to this 

Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his 

arguments, and then search for authority either to sustain or reject his position.’ ” Mudge v 

Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 

182, 203; 94 NW2d 388 (1959). It is the appellant’s responsibility to first prime the pump before 

the appellate well will flow. Mudge, 458 Mich at 105. The majority has decided to prime the 

pump for defendant, but it sets forth even less legal analysis and reasoning than defendant, 

viscerally declaring that the trial court engaged in “constitutionally impermissible 

 1 I note that it is well-established that protection of members of society from a defendant is 

generally a valid consideration in imposing a sentence. People v Snow, 386 Mich 586, 592; 194 

NW2d 314 (1972); People v Pfaffle, 246 Mich App 282, 294 n 18; 632 NW2d 162 (2001). Here, 

the trial court sought to protect defendant’s unborn child from defendant.

2 In People v Bullock, 440 Mich 15, 34 n 17; 485 NW2d 866 (1992), our Supreme Court 

explained that “[b]ecause 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 proportionality’ 

discussed in . . . Milbourn, . . . although the concepts share common roots.”
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discrimination.”3 To be clear, I am not concluding one way or the other whether the trial court 

acted in a constitutionally-permissible manner.

The majority favorably cites Haynie v State, 468 Mich 302; 664 NW2d 129 (2003), but 

Haynie concerned the Civil Rights Act (CRA), MCL 37.2101 et seq., and was not of 

constitutional magnitude. Moreover, the majority engages in no analysis with respect to how the 

CRA would apply in the context of this case. 

Finally, the majority remands the case to a different judge, absent any analysis 

whatsoever of MCR 2.003 (disqualification of judge), directs the circuit court to immediately 

grant bond to defendant, and orders the immediate release of defendant from the custody of the 

Department of Corrections. The majority cites no supporting court rule or statute, merely 

referencing People v McCrary, 450 Mich 890; 539 NW2d 511 (1995), which does not appear 

particularly relevant or explanatory.

I would affirm defendant’s sentence. 

/s/ Jane E. Markey 

 3 I note that even when the state erects classifications that disadvantage a suspect class or 

impinges on a fundamental right, the state action can still pass constitutional muster if the action 

“has been precisely tailored to serve a compelling governmental interest.” Pyler v Doe, 457 US 

202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982).