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UNPUBLISHED

August 25, 2022

v No. 358252

Wayne County Circuit Court

JAVON MAURICE KINNARD, LC No. 18-007077-01-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.

LETICA, J. (concurring in part; dissenting in part).

While I do not agree that this case should be dismissed as moot,

1

I do agree that the trial 

court did not abuse its discretion in imposing an out-of-guidelines sentence.

The record shows the following:

 8/15/18 Defendant arrested for 8 felony offenses related to a financial transaction

device.

 10/2/18 Defendant pled guilty as charged with an agreement to be sentenced under

 

1 The fact that defendant was paroled does not render discussion concerning his out-of-guidelines 

sentence moot under the circumstance presented in this case. See People v Parker, 267 Mich App 

319, 329; 704 NW2d 734 (2005) (an appeal of a departure sentence is not moot while a defendant 

remains on parole if he had “received an intermediate sanction, as he contends he should have.”). 

See also People v Harper, 479 Mich 599, 650 n 5; 739 NW2d 523, 552 (2007) (KELLY, J.,

dissenting). Defendant’s parole does not end until June 16, 2023, and “[u]ntil that date, he faces 

the potential of parole revocation and could be returned to prison for the remainder of 

his . . . maximum sentence.” Id. If, however, this Court were to order resentencing and the trial 

court were “to impose the intermediate sanction cell maximum of [9] months in jail, [defendant] 

would be released from supervision[] [a]nd he would not face the potential of returning to prison.” 

Id.
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the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et. seq., with a 

probationary term.

 10/30/18 The court sentenced defendant as agreed, imposing a 1-year probationary 

sentence under HYTA.

 2/7/19 Defendant was investigated for 3 counts involving a financial transaction

device in a different jurisdiction.

 2/15/19 Defendant was arrested after attempting to purchase a Play Station with a 

stolen credit card. The police recovered additional cards taken from two

victims at a gym. Defendant was with his codefendant and was charged 

with 2 counts involving a financial transaction device along with an 

additional count of conspiracy to commit such an offense.

 3/5/19 Due to defendant’s criminal activity, a bench warrant for a probation

violation was issued.

 6/25/19 Defendant was sentenced for his subsequent February 15, 2019 offenses and 

placed on probation. Defendant absconded and a bench warrant was issued

on October 2, 2019.

 6/26/19 Defendant was arraigned on his probation violation in this case and 

requested a hearing that was scheduled for July 8, 2019.

 7/8/19 Defendant failed to appear for his probation violation hearing and a capias

was issued.

 10/18/19 Defendant was arrested for disguising himself with the intent to obstruct or 

hinder law enforcement, a misdemeanor. Defendant failed to appear and a 

bench warrant was issued for his arrest on November 11, 2019.

 10/22/19 Defendant pled guilty to violating his probation in this case and the court

revoked his HYTA probation.

 11/5/19 The court sentenced defendant to 32 to 48 months’ imprisonment.

 1/19/21 The court granted defendant’s motion for resentencing and again imposed

a 32-to 48-month prison sentence on February 23, 2021.

In imposing the sentence, the court noted: (1) defendant was charged with a number of 

financial-transaction-device offenses, (2) financial-transaction-device crimes have a damaging 

financial impact on victims and disturb their sense of security, (3) after being afforded the 

opportunity of HYTA probation, defendant committed additional crimes, including those of the 

same ilk, that damaged society, and (4) defendant failed to appear for his probation violation 

hearing, resulting in a warrant being issued and his return following another arrest. Although the 

number of offenses were considered in PRV 7, MCL 777.57 (concurrent and subsequent 

convictions), and in OV 13, MCL 777.43 (continuing pattern of criminal behavior), the court could 

properly determine that the guidelines inadequately weighed this factor given the quantity and 

similar nature of the sentencing offenses. MCL 769.34(3)(b). See People v Dixon-Bey, 321 Mich 

App 490, 525; 909 NW2d 458 (2017). The financial and emotional impact of this type of crime 

on the victim were considered under OV 4, MCL 777.34 (serious psychological injury to a victim 

requiring treatment), OV 9, MCL 777.39 (number of victims placed in danger of property loss), 

and OV 16, MCL 777.46 (property obtained, damaged, lost, or destroyed). While only OV 16 was 

scored, the court could determine that OVs 4 and 9, for which no points were assessed, were 

inadequately weighed. MCL 769.34(3)(b). Moreover, the sentencing guidelines gave no 

consideration to the indirect societal impact of this type of criminal activity. See People v 
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Carrigan, 297 Mich App 513; 824 NW2d 283 (2012), abrogated on other grounds People v Hardy, 

494 Mich 430, 438 n 18; 835 NW2d 340 (2013). And the court properly considered defendant’s 

continuing criminal activities, including those committed with codefendant, in deciding that an 

out-of-guidelines sentence was warranted. See e. g., People v Hendrick, 472 Mich 555, 557, 562-

563; 697 NW2d 511 (2005) (“the sentencing court is not precluded from considering events 

surrounding the probation violation when sentencing the defendant on the original offense[s].”). 

Finally, the trial court appropriately took into account defendant’s failure to appear for his 

probation violation hearing and his absconding until rearrested. Id. Defendant’s continued

criminal activity less than four months after his original lenient sentence was imposed 

demonstrated that he remained a menace to society and reflected poorly on his rehabilitative 

potential. Because the sentencing court did not abuse its discretion in considering both the 

underlying crimes and the circumstances of defendant’s probation violations in imposing an outof-guidelines sentence, I concur.

/s/ Anica Letica