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UNPUBLISHED

November 9, 2021

v No. 354747

Eaton Circuit Court

HENRY SALIM SNYDER, LC No. 2018-020255-FH

Defendant-Appellant.

Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted1the trial court’s order sentencing him to a 

prison term of three to five years for attempted assault with intent to do great bodily harm less than 

murder following the revocation of his probation. We affirm the trial court’s finding that defendant 

violated his probation terms, but vacate his sentence and remand for proceedings consistent with 

this opinion.

I. BACKGROUND

This case arises out of defendant’s assault of his ex-wife. Defendant was initially charged 

with assault with intent to do great bodily harm less than murder (count 1), domestic violence 

(count 2), and attempted assault with intent to do great bodily harm less than murder (count 3). 

Defendant entered into a plea agreement in which he pleaded nolo contendere to counts 2 and 3;

an order of nolle prosequi was entered as to count 1. Defendant’s plea was entered under a Cobbs2

agreement under which the trial court would sentence defendant to 30 to 90 days in jail, and a 

Killebrew3agreement under which defendant would serve five years of probation and his sentence 

 

1 People v Snyder, unpublished order of the Court of Appeals, entered November 3, 2020 (Docket 

No. 354747).

2 People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

3 People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982).
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would be capped at five years. The trial court sentenced defendant to jail for 90 days and five 

years of probation. One of the defendant’s probation terms prevented him from having any contact 

with his ex-wife “either directly or through another person.”

In October 2019, defendant’s divorce attorney had a meeting with Ina O’Briant, the divorce 

attorney for defendant’s ex-wife. Defendant entered the room where this meeting was taking place 

and attempted to speak directly to O’Briant. Defendant’s attorney planned to withdraw as 

defendant’s counsel but had not done so at the time defendant attempted to speak with O’Briant, 

so O’Briant obtained counsel’s permission to speak with defendant about the divorce proceeding. 

Defendant’s attorney left, leaving defendant and O’Briant in the room alone. According to 

O’Briant, defendant followed her out of the conference room and down the elevator. When they 

stopped outside the building, defendant began to ask O’Briant to tell his ex-wife that he loved her 

and did not want to be divorced. O’Briant told defendant that he could not send messages to his 

ex-wife through her; O’Briant and defendant eventually went in separate directions. O’Briant

informed the probation department about this incident a few months later. 

The trial court held a probation-violation hearing. O’Briant testified that defendant 

attempted to contact his ex-wife through her. In addition, a victim advocate with a shelter where

defendant’s ex-wife was staying testified that O’Briant contacted her after the incident and told 

her that defendant attempted to send messages to his ex-wife through her. Defendant also testified, 

explaining that he did not attempt to contact his ex-wife through O’Briant, he did not “care about 

the money,” and he and his ex-wife needed to be focused on their children. 

The trial court concluded that defendant violated his probation terms and revoked 

probation. Although defendant’s guidelines-sentencing range was zero to nine months in jail, the 

trial court sentenced defendant to a prison term of three to five years for his attempted-assault 

conviction. Defendant filed a motion for reconsideration and correction of sentence, which the 

trial court denied. This appeal followed.

II. ANALYSIS

A. PROBATION VIOLATION

First, defendant argues that the trial court clearly erred by finding that he violated 

probation. We review a trial court’s factual findings for clear error. People v Williams, 483 Mich 

226, 231; 769 NW2d 605 (2009). “Clear error exists when the reviewing court is left with 

a definite and firm conviction that a mistake was made.” People v Blevins, 314 Mich App 339, 

348-349; 886 NW2d 456 (2016). We review de novo the interpretation of a statute or court rule. 

People v Parker, 319 Mich App 664, 669; 903 NW2d 405 (2017).

“The Legislature has long described a trial court’s decision to grant probation as a matter 

of grace.” People v Bensch, 328 Mich App 1, 6; 935 NW2d 382 (2019), quoting People v Sattler, 

20 Mich App 665, 669; 174 NW2d 605 (1969). Probationers, however, “are afforded certain due 

process at violation hearings because of the potential for loss of liberty.” People v Pillar, 233 

Mich App 267, 269; 590 NW2d 622 (1998). “Specifically, a probationer has the right to a 

procedure consisting of (1) a factual determination that the probationer is in fact guilty of violating 

probation, and (2) a discretionary determination of whether the violation warrants revocation.” Id. 
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“A trial court must base its decision that a probation violation was proven on verified facts in the 

record.” People v Breeding, 284 Mich App 471, 487; 772 NW2d 810 (2009). “The evidence, 

viewed in a light most favorable to the prosecution, must be sufficient to enable a rational trier of 

fact to find a probation violation by a preponderance of the evidence.” Id. “Where resolution of 

a factual issue turns on the credibility of witnesses or the weight of evidence, deference is given 

to the trial court’s resolution of these issues.” Id.

The prosecutor presented evidence clearly establishing that defendant attempted to contact 

his ex-wife through O’Briant, which violated defendant’s probation terms. Although defendant 

argues that he believed he was acting in propria persona at the time he spoke with O’Briant, 

defendant testified that O’Briant had told him during this conversation that he needed to find a 

different attorney. Thus, there is evidence that defendant knew or should have known that his 

attorney had not formally withdrawn as counsel at the time the conversation with O’Briant 

occurred. Even if defendant did not know that his attorney had not formally withdrawn as counsel, 

O’Briant told defendant that he could not send messages to his ex-wife through her. To the extent 

defendant argues that O’Briant’s testimony was inconsistent and conflicted with defendant’s 

account of the events, we defer to the trial court’s witness-credibility determinations that O’Briant 

and the victim advocate were more credible than defendant. See Breeding, 284 Mich App at 487. 

Finally, defendant’s arguments that O’Briant strategically waited to notify probation of 

defendant’s conduct to benefit defendant’s ex-wife in the divorce proceedings has no effect on 

whether defendant actually violated his probation terms. Thus, the trial court did not err by finding 

that defendant violated probation.

B. PRESENTENCE INVESTIGATION REPORT

Next, defendant argues that he is entitled to resentencing on the basis that the trial court 

failed to consider his “January 2020 [presentence-investigation report]” and failed to comply with 

the presentence-investigation report requirements of MCR 6.445(G) and MCR 6.425(E) at his 

probation-violation sentencing. Defendant’s argument is hard to follow because the January 2020 

document he refers to is a probation-violation report, not a presentence-investigation report,4but 

he cites court rules requiring the trial court to consider an updated presentence-investigation report 

at sentencing. Defendant, however, fails to argue that reversal is warranted because he was 

sentenced without an updated presentence-investigation report; rather, he argues only that reversal 

is warranted because the trial court failed to consider the information contained in the probationviolation report. Consequently, any argument that reversal is warranted because defendant was 

sentenced without an updated presentence-investigation report is abandoned. See People v Kelly, 

231 Mich App 627, 640-641; 588 NW2d 480 (1998).

With regard to the probation-violation report, defendant argues that “the record is bare of 

any reference to” this report. Defendant is incorrect. “[W]hen it comes to sentencing, it is not 

particularly important how the information gets before the trial court; rather, it is important that 

the trial court have the relevant information available for sentencing.” People v Odom, 327 Mich 

App 297, 313; 933 NW2d 719 (2019). The prosecutor and defense counsel both referenced the 

 

4 We will refer to this document as the probation-violation report from this point forward.
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probation-violation report at sentencing. The prosecutor referenced the report’s 14-day sentencing 

recommendation, and defense counsel expressed concern that defendant’s probation officer did 

not write the report. Consequently, defendant’s contention that the record fails to refer to the 

probation-violation report is incorrect. 

At sentencing, the trial court asked the prosecutor and defense counsel what sentence they 

each thought was appropriate. This question prompted a discussion of information contained 

within the probation-violation report. The probation-violation report detailed defendant’s 

recommended sentencing guidelines, along with the recommendation of the Michigan Department 

of Corrections that defendant’s probation be continued and that he be sentenced to serve 14 days 

in jail. The report noted that defendant recently began working at a Lexus dealership. It also 

detailed defendant’s progress in his domestic-violence intervention classes. Thus, the record 

shows that the trial court did consider the information contained in the probation-violation report 

and, therefore, defendant is not entitled to resentencing on the basis that the trial court failed to 

consider that information.

C. DEPARTURE SENTENCE

Finally, defendant argues that in departing from defendant’s applicable sentencingguidelines range, the trial court rendered an unreasonable sentence. When a trial court revokes a 

defendant’s probation, “it may sentence the defendant ‘in the same manner and to the same penalty 

as the court might have done if the probation order had never been made.’ ” People v Hendrick, 

472 Mich 555, 562; 697 NW2d 511 (2005), quoting MCL 771.4 (emphasis omitted). 

“[R]evocation of probation simply clears the way for a resentencing on the original offense.” 

People v Kaczmarek, 464 Mich 478, 483; 628 NW2d 484 (2001).

We review a departure sentence for “reasonableness.” People v Lockridge, 498 Mich 358, 

392; 870 NW2d 502 (2015). “[T]he proper inquiry when reviewing a sentence for reasonableness 

is whether the trial court abused its discretion by violating the ‘principle of proportionality’ set 

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

500 Mich 453, 459-460; 902 NW2d 327 (2017) (Steanhouse II) (citation omitted). “The nature of 

the offense and the background of the offender” must be taken into account when making this 

assessment. Id. at 472, quoting Milbourn, 435 Mich at 651. 

Trial courts must consult the sentencing guidelines when imposing a sentence, but “ ‘the 

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.’ ” Id. at 474-475, quoting 

Milbourn, 435 Mich at 661. In imposing an out-of-guidelines sentence, “a trial court must justify 

the sentence imposed in order to facilitate appellate review, which includes an explanation of why 

the sentence imposed is more proportionate to the offense and the offender than a different 

sentence [i.e., one within the guidelines,] would have been.” People v Dixon-Bey, 321 Mich App 

490, 525; 909 NW2d 458 (2017) (quotation marks and citations omitted). Nevertheless, our 

Supreme Court has expressly rejected dicta suggesting a “presumption[] of unreasonableness for 

out-of-guidelines sentences.” Steanhouse II, 500 Mich at 474. Rather, the principle of 

proportionality simply “requires sentences imposed by the trial court to be proportionate to the 

seriousness of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich 

at 636; see also Steanhouse II, 500 Mich at 474. “[R]elevant factors for determining whether a 
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departure sentence is more proportionate than a sentence within the guidelines range continue to 

include (1) whether the guidelines accurately reflect the seriousness of the crime; (2) factors not 

considered by the guidelines; and (3) factors considered by the guidelines but given inadequate 

weight.” Dixon-Bey, 321 Mich App at 525 (quotation marks and citations omitted). But “this is 

not to say that the trial court must explain why it chose a twelve-month departure as opposed to an 

eleven-month departure (or indeed as opposed to any one of countless other potential departures).” 

People v Babcock, 469 Mich 247, 260 n 14; 666 NW2d 231 (2003). “Rather, the trial court must 

simply explain why the actual departure that it imposed is justified.” Id. See also People v Smith, 

482 Mich 292, 311; 754 NW2d 284 (2008).

The trial court provided three explanations for the sentence it imposed in this case. First, 

that defendant “systematically tr[ied] to destroy” his ex-wife because she did not want to stay 

married to him. This statement was not supported by facts in the record before us, but it might 

have been drawn from the divorce proceedings involving defendant and his ex-wife. Second, that 

the trial court doubted that probation could protect defendant’s ex-wife from him and opined that 

prison was necessary to protect her. Third, that defendant lied at the hearing when he said that his 

efforts in the divorce proceedings were about his children and not money. Yet again, the trial court 

apparently drew on information outside of the record before us and instead considered evidence 

from defendant’s divorce proceedings. 

These three factors might well justify a departure sentence, but the trial court imposed a 

departure sentence that was four times longer than the high end of defendant’s applicableguidelines range. A trial court must explain why a specific departure sentence is justified based 

on information in the record. Babcock, 469 Mich at 260 n 14. The trial court quadrupled the 

recommended guidelines sentence in this case; such a departure requires a more extensive 

explanation than the trial court gave here. Thus, we vacate defendant’s sentence and remand for 

resentencing. 

III. CONCLUSION

For the reasons stated in this opinion, we affirm the trial court’s finding that defendant 

violated his probation terms, but vacate his sentence. On remand, the trial court must resentence 

defendant. If the trial court chooses to impose a departure sentence, then it must explain the 

reasons for its departure sentence in greater detail. We do not retain jurisdiction.

/s/ Brock A. Swartzle

/s/ David H. Sawyer

/s/ Anica Letica