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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION November 17, 2015 9:10 a.m.

v No. 321534 Presque Isle Circuit Court ALLAN WAYNE SHANK, LC No. 12-092763-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and H OEKSTRA and O’C ONNELL , JJ.

B ORRELLO , J.

Defendant, Allan Wayne Shank, appeals by delayed leave granted 1 his sentence following his guilty pleas to felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm) MCL 750.227b. The trial court sentenced him as a fourth-offense habitual offender. 2 MCL 769.12. The trial court sentenced Shank to serve 12 to 25 years’ imprisonment for his felon in po ssession and a consecutive term of two years’ imprisonment for his felony-firearm conviction. In consideration of our recent ruling in People v Steanhouse , ___Mich App ___; ___ NW2d ___ ( 2015), we remand the matter to the trial court for resentencing.

I. FACTS

Police officers received disturbing information that Jerry Hil liard, a prison inmate, had sent an eight year old child a g ift and card through Shank, who had been in prison with Hilliard and who has previous convictions of accosting minors for immora l purposes. During the investigation, officers discovere d that Hilliard had requested that Shank take a photograph of the child posing in only a necklace. While executing a warrant, of ficers found a Winchester pump .22 caliber rifle in Shank’s hall closet. Officers also found evidence that Shank had sent Hilliard a photograph of what appeared to be a pregnant seven year old c hild and discovered in Shank’s

1 People v Shank , unpublished order of the Court of Appeals, entered June 12, 2 014 (Docket No. 321534).

2 This status increased Shank’s possible maximum term of impriso nment to life imprisonment. MCL 769.12(1)(b); MCL 750.227b(1).-2- photo album a photograph of a 5-year-old girl exposing her vagi nal area, which Shank denied belonged to him.

Shank pleaded guilty to felon in possession and felony-firearm , and the prosecution dropped a charge of possession of child sexually abusive materi al. The sentencing guidelines recommended a minimum sentence of 7 to 46 months’ imprisonment for Shanks’ felon in possession conviction. The trial court decided to depart upwar d, instead sentencing Shank to 12 to 25 years’ imprisonment. It gave several reasons for its dep arture, including that Shank did not have much rehabilitative potential since he had been frequently incarcerated for reoffending, violated probation, parole, and received misc onduct citations i n prison. The trial court also relied on the concerning nature of Shank’s noncriminal behavior . The trial court explained that Shank was “assisting his prison mates in making contact with yo ung children outside the prison system. He’s starting to groom children in spite of having ser ved these long sentences . . . . There’s been just no reh abilitation at all.”

II. STANDARDS OF REVIEW

This Court, in Steanhouse , considered the impact of People v Lockridge , ___ Mich ___; ___ NW2d ___ (2015) on departure se ntences following our Suprem e Courts’ opinion in Lockridge

. Steanhouse holds that pursuant to Lockridge , this Court must review a defendant’s sentence for reasonableness. Lockridge , ___ Mich at ___; slip op at 2, 29, citing United States v Booker , 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005). Hence , when the trial court departs from the applicable sen tencing guidelines range, this C ourt will review that sentence for reasonableness. People v Lockridge , ___ Mich ___; ___; slip op at 29. However, as stated in Steanhouse , “The appropriate procedure for considering the reasonableness of a departure sentence is not set forth in Lockridge .” Steanhouse , ___ Mich App at ___; slip op at 35. After discussion of the approaches Mic higan Appellate courts should e mploy when determining the reasonableness of a sentence, this Court adopted the standard s et forth by our Supreme Court in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990).

III. PRINCIPLE OF PROPORTIONALITY.

Under Milbourn , “a given sentence [could] be said to constitute an abuse of d iscretion if that sentence violate[d] the p rinciple of proportionality, whic h require[d] sentences imposed by the trial court to be proportionate to the seriousness of the c ircumstances surrounding the offense and the offender.” Milbourn , 435 Mich at 636; Steanhouse , ___ Mich App at ___; slip op at 37. As such, trial courts were required to impose a sentence that t ook “into account the nature of the offense and the background of the offender.” Milbourn at 651. As stated in Milbourn :
Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be w hether the case involves circu mstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended ra ng in the absence of factors n ot adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality a nd thus abused its sentencing discretion. Even wher e some departure appears to be appropriate, the-3- extent of the departure (rather than the fact of the departure itself) may embody a violation of the princi ple of proportionality. Milbourn , at 659-660.

As set forth in Steanhouse , “factors previously considered by Michigan courts under the proportionality standard included, among others, (1) the seriou sness of the offense, (2) factors not considered by the guidelines . . . (3) factors that were in adequately considered by the guidelines in a particular case. Steanhouse
, at ___ slip op at 38. (Internal citations omitted).

In this case, the trial court did not have the benefit of our Supreme Court’s decision in Lockridge or this Court’s decision in Steanhouse . Because of this fact, the trial court’s sentence departure centered on the then existing substantial and compell ing reason standard which was overturned by Lockridge , ___ Mich at ___; slip op at 29. Accordingly, in accordance w ith this Court’s decision in Steanhouse , we remand this matter to the trial court for a Crosby 3 hearing. “The purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence, so that it may be determined whether any prejudice resulted from the error.” People v Stokes , ___ Mich App ___ ; ___ NW2d ___; (2015) slip op at 11. Also

, pursuant to Stokes , defendant is provided with an opportunity to avoid resentenci ng by promptly notifying the trial judge that resentencing will not be sought. Stokes
, ___ Mich App at ___; slip op at 11-12, quoting Lockridge , ___ Mich at ___; slip op at 35.

Accordingly, we remand the matter to the trial court to follow the Crosby procedure outlined in Lockridge . Because defendant may be sentenced to a more severe sentence

, defendant “may elect to forgo re sentencing by providing the tri al court with prompt notice of his intention to do so. If notifica tion is not received in a timel y manner,” the trial court shall continue with the Crosby remand as explained in Lockridge and Stenhouse

. See generally, Stokes , ___ Mich App at ___; slip op at 12.

We remand the matter for further proceedings consistent with t his opinion. We do not retain jurisdiction.

/s/ Stephen L. Borrello /s/ Joel P. Hoekstra

3 397 F 3d 103 (CA 2 2005).