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UNPUBLISHED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 23, 2019

v No. 344161

Ionia Circuit Court

KYLE BRANDON RICHARDS, LC No. 2014-015993-FH

Defendant-Appellant.

Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

A jury convicted defendant of assault of a prison employee, MCL 750.197c, after he spit 

on a correction officer’s arm. Defendant was sentenced as a fourth-offense habitual offender, 

MCL 769.12, and this Court eventually vacated his departure sentence and remanded for 

resentencing.1 On remand, defendant was resentenced to 46 months to 40 years’ imprisonment. 

Defendant now appeals by leave granted. For the reasons set forth below, we affirm.

Defendant first argues that he received a sentence disproportionate to the offense and his 

circumstances. Defendant’s minimum sentence was within his guidelines range of 12 to 48

months. We are required by MCL 769.34(10) to affirm a sentence within the guidelines range 

absent a scoring error or the trial court’s reliance on inaccurate information. Defendant argues 

that MCL 769.34(10) is incompatible with the Supreme Court’s decision in People v Lockridge, 

498 Mich 358; 870 NW2d 502 (2015), but this Court has concluded that “Lockridge did not alter 

or diminish MCL 769.34(10) . . . .” People v Schrauben, 314 Mich App 181, 182 n 1; 886 

NW2d 173 (2016). Until the Supreme Court decides Lockridge’s effect, if any, on MCL 

 1 People v Richards (On Remand), unpublished per curiam opinion of the Court of Appeals, 

issued February 1, 2018 (Docket No. 325192).
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769.34(10),

2 we are bound by our published decision in Schrauben, 314 Mich App 181. See 

MCR 7.215(C)(2).

Next, defendant argues that his sentence constitutes cruel and unusual punishment. We 

disagree.3

The Michigan Constitution provides that “cruel or unusual punishment shall not be 

inflicted[.]” Const 1963, art 1 § 16.4 This prohibition precludes “grossly disproportionate 

sentences.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011). A sentence 

within the guidelines range is presumptively proportionate. See People v Powell, 278 Mich App 

318, 323; 750 NW2d 607 (2008). To overcome the presumption of proportionality, “a defendant 

must present unusual circumstances that would render the presumptively proportionate sentence 

disproportionate.” People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000).

Defendant fails to articulate unusual circumstances that render the sentence 

disproportionate. Defendant focuses on his mental health, including his diagnoses of Asperger’s 

Syndrome and Attention Deficit Disorder. But he has not provided any authority suggesting that 

these conditions make his incarceration unconstitutionally burdensome. Nor were these concerns 

raised before the trial court at resentencing. Instead, the defense recounted defendant’s 

improvement since the first sentencing including his completion of numerous educational classes 

while incarcerated. The court considered those factors and complemented defendant on his 

improved demeanor. At the same time, however, the court was cognizant that defendant had 

several assault-related offenses both in and out of prison and a history of multiple major 

misconducts while in prison. The trial court’s selection of a 46-month minimum reflected a 

reasonable balancing of the positive factors defendant identified with the sentencing offense and 

his significant history of assaultive behavior. For those reasons, defendant fails to show that his 

sentence constituted cruel or unusual punishment.

Affirmed.

/s/ David H. Sawyer 

/s/ Stephen L. Borrello 

/s/ Douglas B. Shapiro 

 2 We note that the Supreme Court recently denied an application for leave to appeal addressing 

that issue. See People v Ames, 501 Mich 1026 (2018); People v Ames, ___ Mich ___ (2019)

(Docket No. 156077).

3 Because defendant did not raise this issue before the trial court, our review is for plain error 

affecting substantial rights. People v Jackson, 313 Mich App 409, 421; 884 NW2d 297 (2015).

4 The Eighth Amendment to the federal constitution prohibits cruel and unusual punishment. US 

Const, Am VIII. “If a punishment passes muster under the state constitution, then it necessarily 

passes muster under the federal constitution.” People v Benton, 294 Mich App 191, 204; 817 

NW2d 599 (2011).