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- Appellee, UNPUBLISHED March 19, 2019

v No. 341504

Manistee Circuit Court SAMUEL DARNEL HARPER, LC No. 17

- 004727

- FH

Defendant

- Appellant.

Before: S TEPHENS

, P .J., and G LEICHER and B OONSTRA , JJ.

P ER C URIAM

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Following defendant’s jury trial conviction for cocaine possession, the trial court departed upward from the recommended minimum sentencing guidelines range and sentenced defendant to four to eight years’ imprisonment. This 14

- month departure was proporti onate
under the circumstances and w e affirm.

I. BACKGROUND

Defendant was arrested as he walked down the street on suspicion that he had stolen liquor from a grocery store. Defendant advised the arresting officers that he was carrying a crack cocaine pi pe in his pocket and they confiscated it. Later testing revealed trace amounts of cocaine on the pipe.

The prosecutor charged defendant with possession of less than 25 g rams of cocaine. Defendant was released on bond pending trial, but appeared for t he final status conference carrying “drug paraphernalia.” Against his attorney’s advice, defendant addressed the court and stated, “[T]he reason I do what I want to do here in this county is because just four days ago I just sold cocaine to [a former court employee] and I’m telling you in this courtroom that I did it.” Defendant further informed the court that he was “not afraid to go to the penitentiary. I’ve been

there nine times.”

The jury convicted defendant as charged. Before sentencing, the D epartment of Corrections calculated defendant’s minimum sentencing guidelines range. Defendant’s Offense Variable (OV) score of 0 placed in OV Level I and his Prior Record Variable (PRV) score of 105- 2

- placed in him PRV Level F , the highest level possible

. Defendant’s minimum sentencing guidelines range was set at 2 to 17 months. As defendant had previously been convicted of

cocaine

- related crimes, the court doubled the minimum guidelines range to 4 to 34 mo nths pursuant to MCL 333.7413

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At sentencing, de fendant acknowledged his long history of drug abuse. He requested a

term of incarceration followed by parole, convinced that he would not be able to stay clean while on probation. The court remembered defendant’s pretrial confession to yet another drug c rime and recited defendant’s lengthy adult criminal history dating back to 1985. The PSIR listed eight prior felony and 22 prior misdemeanor convictions. These included drug and theft offenses, indecent exposure, lying to police, and domestic violence. The court agreed with defendant, “I don’t think that you would be successful on probation. . . . You, on several occasions, have had probation revoked and been sentenced to prison.” The court also cited defendant’s “long

- term extensive history of substan ce abuse issues” with intermittent periods of sobriety.

The court sentenced defendant to four to eight year s ’ imprisonment, stating:

Having considered the testimony I heard at trial, the jury’s verdict, your prior record, the [PRV] score of 105, the eight prior felony convictions, I’m simply of a mind that the guidelines, even doubled, are a good starting point, but they don’t do justice to your extensive adult criminal record and your refusal to abide by the

laws of this state. . . .

* * *

The Court certainly is tasked with explaining why it believes the sentence imposed is proportionate to the crime committed: Recognizing that this was a

residue

- only case, I understand that the appellate courts may be asked to address the proportionality of this sent ence.

When I impose this sentence, really what I’m guided by is his extensive prior felony record and the multiple prior convictions for drug

- related offenses, some of which include either delivery of cocaine or possession with intent to

deliv er cocaine, his statements here in court at the final status conference, and, really, a history that presents as a man 54

- years of age, that he has no interest in stopping this type of behavior; so, that’s the reason for the sentence.

Defendant now appeals his senten ce.

II. ANALYSIS

We review departure sentences for reasonableness, People v Lockridge , 498 Mich 358,

3 92 ; 870 NW2d 502 (2015) , and review a lower court’ s determination that a particular sentence

is reasonable for an abuse of discretion. People v Steanhouse , 500 Mich 453, 471; 902 NW2d 327 (2017) ( Steanhouse II ). In determining whether a trial court abused its discretion by unreasonably departing from the sentencing guidelines, we consider whether the court conformed to the principle of proportion ality set forth in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990). Steanhouse II , 500 Mich at 476

- 477. In this regard, we must consider whether- 3

- the trial court acted within its discretion by imposing a sentence that is proportionate to the

seriousnes s of the particular offense and the character of the particular offender. People v Dixon

Bey , 321 Mich App 490, 521; 909 NW2d 458 (2017), oral argument gtd on the application 501

Mich 1066 (2018). T rial courts may depart “ when, in their judgment, the rec ommended range under the guidelines is disproportionate, in either direction, t o the seriousness of the crime.”

Milbourn , 435 Mich at 657.

The statutory guidelines are “a useful tool ” in selecting a proportionate sentence as they “embody the principle of proportionality.” Dixon

- Bey , 321 Mich App at 524. But a departure

sentence may be “more proportionate” based on certain factors, such as “ (1) whether the guidelines accurately reflect the seriousness of the crime ; (2) factors not considered by the guide lines; and (3) factors considered by the guidelines, but given inadequate weight.” Id. at 525 (citations omitted). Factors not otherwise considered by the guidelines might include “the defendant’s misconduct while in custody, the defendant’s expression o f remorse, and the defendant’s potential for rehabilitation.” People v Steanhouse , 313 Mich App 1, 46; 880 NW2d 297 (2015) ( Steanhouse I ), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017) (citations omitted). Based on these various fa ctors, the court must support not only its decision to depart, but also the extent of the departure. Milbourn , 435 Mich at 660.

In People v Smith , 482 Mich 292; 754 NW2d 284 (2008), the Supreme Court described a practical application of th e principle of proportionality. “[A] court may explain [] the similarity between the facts justifying the departure and the facts describing a crime meriting the same sentence under the guidelines. A comparison of a defendant’ s characteristics and those o f a hypothetical defendant whose recommended sentence is comparable to the departure sentence is

a valuable exercise. ” Id . at 310. In this vein, a “ potential means of offering . . . a justification [for a departure] is to place th e specific facts of a de fendant’ s crimes in the sentencing grid. ” Id

. at 306. The Court reasoned that “ reference to the grid can be helpful, because it provides objective factual guideposts that can assist sentencing courts to ensure that the offenders with

similar offense and offender characteristics receive substantially similar sentences, ” id . at 309 (quotation marks and citation omitted), and thus “minimize idiosyncrasies” in sentencing. Id . at

311. Howev er, courts are not required to “ sentence defenda nts with mathematical certainty” and

“ precise words [are not] necessary . . . to justify a particular de parture.” Id

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The trial court in this case aptly determined that defendant’s extensive criminal history was not adequately considered in scoring the guidelines. Defendant ’s PRV score of 105 points was well above the 75 points necessary to place him in the highest PRV Level for his Class G offense. Defendant was assessed 50 points for PRV 1, reflecting his two prior high severity felony convictions, see MCL 777.51(1)(b), a nd was given the highest points allowable under

PRV 2

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— reflecting four or more prior low severity felonies, see MCL 77.52(1)(a). Defendant’s two other low severity felony convictions could not i ncrease his point total further, although a score of 50 poi nts would seem otherwise justifiable. Defendant was also assessed the highest score possible for PRV 5, prior misdemeanor convictions. MCL 777.55(1)(a) provides for an assessment of 20 points for 7 or more prior misdemeanors. Defendant had 22 prior

misd emeanor convictions, more than three times the number that could be counted under this variable. A score of 60 points for PRV 5 , therefore, would have been more suited to the

circumstances. Ultimately, if the trial court could have assessed points for th e remainder of defendant’s prior convictions, defendant’s total PRV score could have been more than double the- 4

- 75

- point minimum required for placement in the highest PRV Level. This strongly supports that the extent of defendant’s prior criminal history w as not adequately reflected in the scoring of his sentencing guidelines.

The trial court also considered defendant’s behavior pending trial for the current cocaine

possession offense. Defendant admitted in open court that he had recently committed an eve n more serious offense by selling cocaine. Defendant’s failure to control his conduct while awaiting trial was closely related to the court’s consideration of defendant’s chances for

rehabilitation. The court noted that defend ant was 54 years old, had a long history of substance abuse with only briefs respites of sobriety, admitted that probation would provide insufficient supervision to curb his substance abuse, and demonstrated an unwillingness to be rehabilitated.

In the end, the trial court’s 14

- mont h upward departure was carefully selected to fit this particular offender and this particular offense, being defendant’s ninth felony conviction overall. Although the sentencing offense of possessing drug paraphernalia with only trace amounts of

cocaine s eems rather trivial standing alone , we cannot conclude that the trial court abused its discretion by departing in this case.

We affirm

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/s/ Cynthia Diane Stephens

/s/ Elizabeth L. Gleicher