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UNPUBLISHED

September 19, 2024

v No. 366508

Barry Circuit Court

MARK ALAN ARIZOLA, LC No. 2022-000411-FH

Defendant-Appellant.

Before: GADOLA, C.J., and K. F. KELLY and MARIANI, JJ.

K. F. KELLY, J. (dissenting).

The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 

240 to 480 months’ imprisonment as a result of his conviction for being a felon in possession of a 

firearm (“felon-in-possession”). Although the trial court’s sentence departed from the 

recommended guidelines range, the sentence was reasonable and proportional in light of 

defendant’s criminal history and background. Accordingly, I would affirm defendant’s sentence, 

and I respectfully dissent.

A trial court’s decision to depart from the guidelines when fashioning a sentence is 

reviewed for reasonableness. People v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). 

A sentence is deemed reasonable “if it adheres to the principle of proportionality,” which “requires 

sentences imposed by the trial court to be proportionate to the seriousness of the circumstances 

surrounding the offense and offender.” Id. at 351-352 (quotation marks and citation omitted). 

When assessing the proportionality of a sentence, this Court considers:

(1) the seriousness of the offense; (2) factors that were inadequately considered by 

the guidelines; and (3) factors not considered by the guidelines, such as the 

relationship between the victim and the aggressor, the defendant’s misconduct 

while in custody, the defendant’s expressions of remorse, and the defendant’s 

potential for rehabilitation. [Id. at 352-353 (quotation marks and citation omitted).]

When sentencing defendant, the trial court referred to a number of factors on the record, 

indicating its reasons for sentencing defendant beyond the sentencing guidelines range. First, 

regarding the seriousness of the crime, see id. at 352, the trial court expressly recognized that 
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defendant’s crime was “very serious” because “[s]omebody got shot.” Second, the trial court 

expressed that there were “multiple things, both misdemeanors and felonies, that were not scored 

[be]cause we stop at a certain level.” Thus, while the trial court recognized that a number of 

defendant’s prior convictions were accounted for by defendant’s sentencing guidelines scoring, 

the trial court expressed that defendant’s eight prior felonies and 19 prior misdemeanors were not 

adequately accounted for because of defendant’s significant criminal history. See id.

Moreover, the trial court identified factors that were not considered by the sentencing 

guidelines, such as defendant’s potential for rehabilitation. See id. at 352-353. Specifically, the 

trial court stated that it did not believe defendant could be properly rehabilitated and felt that “the 

likelihood that [defendant] commit[s] another crime when he gets out . . . is almost absolute.” The 

trial court also identified that there have already been prior rehabilitation and deterrence efforts 

put in place for defendant after he committed crimes in the past, but defendant was unable to be 

properly rehabilitated long term as he regularly committed crimes after being released from prison, 

parole, and probation.

For the reasons articulated by the trial court, defendant’s sentence was proportionate to the 

criminal offense and defendant’s background, and I would affirm the trial court’s order imposing 

it.

/s/ Kirsten Frank Kelly