-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION November 29, 2016

v No. 328097 Shiawassee Circuit Court MONICA MARIE STEVENS, LC No. 14-006595-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

O’C ONNELL , J. ( dissenting ).

I respectfully dissent. I write simply to state that regardin g departure sentences, People v Steanhouse , 313 Mich App 1, 48; 880 NW2d 297 (2015), is in conflict with People v Lockridge
, 498 Mich 358; 870 NW2d 502 (2015). As such, this Court is requ ired to follow the strictures as set forth in the Supreme Court’s Lockridge opinion. By following the strictures as set forth in the Lockridge opinion, the defendant is not entitled to a remand for a Crosby hearing, United States v Crosby , 397 F3d 103 (CA 2, 2005). I would affirm the well-reasoned d ecision of the learned trial court.

This case involves a departure sentence. It does not involve an Alleyne 1 challenge, nor does it involve a challenge to the mis-scoring of the guideline s. In such instances, Lockridge compels us to review the defenda nt’s sentence for plain error. If no error occurs, no remand is necessary. In the present case, no error has occurred. In my opinion, it defies logic to remand a case for resentencing when the offense variables (OVs) are not mis-scored, when no valid Alleyne challenge exists, and when the trial court stated valid reason s for why its chosen sentence was more proportionate to both the offense and the offender.

This Court reviews the trial court’s decision to depart upward from the sentencing guidelines for reasonableness under an abuse-of-discretion stan dard. People v Masroor , 313 Mich App 358, 373; 880 NW2d 812 (2015). The trial court abuses its discretion when its sentence is not proportional under People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990), and its progeny. Id . at 373-374.

1 Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).-2- In imposing a departure sentence that exceeded the guideline r ange by nine months, the trial court stated that the recommended sentence did not “adequ ately handle[] this matter” and that it would fashion an “appropr iate” sentence. The trial cou rt explained that the guidelines did not adequately account for defenda nt’s extensive history of alc ohol-related crimes, including five prior convictions of operating while intoxi cated, that defendan t’s blood alcohol content was three times over the legal limit, or that defendant had “previous and persistent failure to rehabilitate . . . .” Stevens had participated in five previou s courses of alcohol abuse counseling but continued to drink. Finally, the trial court noted that St evens did not admit responsibility for the crime and was not likely to be rehabilitated. The trial co urt specifically stated that its sentence “is more proportionate to this offense, because it acc urately reflects the aggravating factors I’ve already discussed, and the need to impose a more s evere sanction than those you’ve already faced.”

The recommended guidelines range for Stevens’s sentence was 0 t o 13 months’ imprisonment. The trial court ex ceeded the guideline range by nine months and sentenced Stevens to a term of 22 to 90 months’ imprisonment. In my opin ion, this was a reasonable and well-deserved sentence.

The Lockridge question at issue in this case is whether Stevens, a fifth-tim e multiple drunk driving offender, is entitled to be resentenced or at lea st entitled to a remand for a Crosby hearing. The answer to this ques tion depends on whether Steven s can show plain error in her sentencing process. On appeal, Stevens does not contest the sc oring of her guidelines, nor can she establish plain error. I therefore conclude that Lockridge addresses this issue perfectly: Stevens is not entitle d to be resentenced.

In this case, I would adopt the identical reasons to apply as stated in my dissent in People v Shank , 313 Mich App 221; 881 NW2d 135 (2015) (O’C ONNELL , J., dissenting ), as follows:

If a defendant does not challeng e the scoring of his or her off ense variables (OVs) at sentencing on Alleyne grounds, our review is for plain error affecting that defendant’s sub stantial rights. Lockridge , 498 Mich at 392. In this case, Shank did not challenge the scoring of his OV scores on Alleyne grounds. Our review is for plain error.

To be entitled to relief under plain-error review, a defendant must show that the error affected the outcome of the lower court pro ceedings. Id

. at 393. The Lockridge court aptly stated the application of the plain error doctrine in cases—like Shank’s—in which the defendant did not p reserve an Alleyne challenge below and the trial court departed upward:

Because [the defendant] received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the trial court necessarily had to state on the record its reasons for departin g from that range), the defendant cannot show prejudice from any

error in scoring the OVs in violation of Alleyne . [ Id . at 394 (emphasis altered).]-3- If a defendant’s minimum sentence involved an upward departure , that defendant “necessarily cannot show plain error . . . .” Id . at 395 n 31. “It defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guide lines were merely advisory.” Id

. In this regard, the Steanhouse court’s decision to remand in that case was contrary to the precepts of stare decisis. As in Lockridge , the trial court in Steanhouse departed upward from the recommended sentencing range. Steanhouse , 313 Mich App at 42. The defendant in Steanhouse , like the defendant in Lockridge , did not challenge the scoring of his OVs on Alleyne grounds. Id . The Court of Appeals in Steanhouse recognized that the defendant could not establish a plain error under Lockridge . However, the Court proceeded to review the def endant’s sentence and remand f or resentencing anyway, directly contrary to the language of Lockridge providing that the Lockridge defendant was not entitled to resentencing under the exact same circumstances.

I would follow Lockridge without declaring a conflict panel. The reason is simple—this Court need not convene a conflict panel to follo w a rule articulated by the Supreme Court, even if a decision of this Co urt conflicts with the Supreme Court’s decision. Charles A Murray Trust v Futrell , 303 Mich App 28, 49; 840 NW2d 775 (2013). Until the Supreme Court’s dec ision is overruled by the Supreme Court itself, the rules of stare decis is require this Court to follow the Supr eme Court’s decision. Paige v Sterling Heights , 476 Mich 495, 524; 720 NW2d 219 (2006). This Court simply “does no t have the authority to recant the Supreme Court’s positions.” Murray Trust , 303 Mich App at 49. Under the rule of stare decisis, this Court must fo llow a decision of the Supreme Court even if another panel of this Court decide d the same issue in a contrary fashion. Id . Because Steanhouse ignored the clear directives of the Michigan Supreme Court, it is against the rules of stare decisis to follow the procedures in that case. I cannot in good conscience viola te the rules articulated in Lockridge

.
A remand under United States v Crosby , 397 F3d 103 (CA 2, 2005), is used to determine whether prejudice resulted from an error. People v Stokes
, 312 Mich App 181, 200-201; 877 NW2d 752 (2015). The Lockridge court stated that no prejudice could result from the type of “error” involved in this case. Shank cannot show plain error; therefore, he is not enti tled to relief. I conclude that a Crosby remand is not appropriate or necessary in this case. [ Id . at 228-230 (footnote omitted).]

I would affirm the trial court’s well-reasoned decision in thi s matter. The sentence is proportionate both to the crime and the offender. No OVs have been mis-scored in violation of-4- the Alleyne decision. No plain error has occurred. It is clearly a waste of judicial resources to remand this case to the trial court. 2

/s/ Peter D. O’Connell

2 This Court’s recent opinion in People v Ambrose , ___ Mich App ___, ___; ___ NW2d ___ (2016), slip op at 6, further supports my position: Further, even if we were to assume that the trial court erred i n scoring OV 9, we would conclude that resenten cing is not required. Under People v Lockridge , 498 Mich 358, 364-365; 870 NW2d 502 (2015), a trial court’s departu re from a defendant’s recommended sentenci ng guidelines range is reviewed by this Court for reasonableness. Defendant has not challenged the trial cou rt’s departure from the guidelines as unreasonable. In light of the facts of this case, the trial court’s lengthy articulation of its reasons for departing from the guid elines, and the minor extent of the departure, we hol d that the departure was reasona ble. Although in People v Biddles , ___ Mich App ___, ___; ___ NW2d___ (2016) (Docket No. 326140); slip op at 4, we recently clarified the distinction be tween [ People v Francisco , 474 Mich 82, 92; 711 NW2d 44 (2006)] errors and Lockridge errors, Biddles did not deal with an upward departure, and we do not read Biddles as requiring remand for a Francisco error when we have determined (as here) that a sentencing departure is reasonable under Lockridge and the sentence “did not rely on the minimum sentence range from the improperly scored guidel ines” at issue. Lockridge , 498 Mich at 394; see also People v Mutchie , 468 Mich 50, 52; 658 NW2d 154 (2003) (holding that it was unnecessary to determine i f a scoring error in OV 11 existed and required resentencing when the sentences i mposed were departures “above the recommended range in any event, and the c ourt expressly stated” the reasons for the departure).