People of Michigan v. Christopher Sanchez Sr ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 18, 2023
Plaintiff-Appellee,
v No. 354925
Ottawa Circuit Court
CHRISTOPHER SANCHEZ, SR., LC No. 19-043429-FC
Defendant-Appellant.
Before: MARKEY, P.J., and MURRAY and FEENEY, JJ.
PER CURIAM.
A jury convicted defendant, Christopher Sanchez, Sr., of one count of third-degree criminal
sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with another person who is at
least 13 years of age but less than 16 years of age), and one count of fourth-degree criminal sexual
conduct (CSC-IV), MCL 750.520e(1)(a) (sexual contact with another person who is at least 13
years of age but less than 16 years of age). The trial court sentenced defendant as a fourth-offense
habitual offender, MCL 769.12, to 35 to 75 years’ imprisonment for the CSC-III conviction and
10 to 15 years’ imprisonment for the CSC-IV conviction. The 35-year minimum sentence for the
CSC-III conviction reflected an upward departure from the guidelines range of a little over eight
years. Defendant moved post-judgment for a new trial or a Ginther1 hearing. After conducting a
Ginther hearing, the trial court denied defendant’s motion for new trial. Defendant appeals by
right his convictions and sentences, alleging ineffective assistance of counsel, evidentiary errors,
and sentencing defects. For the reasons stated herein, we affirm defendant’s convictions and
sentences.
I. RELEVANT FACTS AND PROCEEDINGS
Defendant’s convictions arise from his sexual assault of AV, who was 15 years old at the
time of the assault. AV was living with her family at a motel while more permanent housing was
being readied for the family. Defendant worked night security at the motel. AV first encountered
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-1-
defendant when he inserted himself into a conversation that she and her mother were having about
AV’s workouts at the YMCA. Defendant claimed that he had been a mixed martial arts (MMA)
fighter in the armed services. Later in the day, defendant went to AV’s motel room and offered to
show her some of his martial arts moves and videos of people whom he had trained. That evening,
AV and defendant practiced MMA kicks behind the motel. At some point, defendant asked AV
to kiss him on the cheek, and he told her that she could be a model considering her appearance and
the manner in which she presented herself. The next day, defendant invited AV to join him and
other trainees for a run on some park trails. Believing that AV would be in a public place with
other people, AV’s mother gave her permission to go with defendant.
Instead of taking AV to the park, defendant drove her to his house 45 minutes away from
the motel. At his home, and while training AV in MMA moves, defendant sexually assaulted her
by digitally penetrating her vagina and fondling and licking her right breast. Afterward, defendant
drove AV back to the motel. She immediately informed her mother about the sexual assault. AV’s
mother then called the police. AV was taken to a clinic where a sexual assault nurse examiner
(SANE) performed a sexual-assault examination. A swab was taken from the nipple of AV’s right
breast during the examination, and later analysis of DNA obtained from the swab revealed that it
matched defendant’s DNA. Defendant was charged, arrested, and convicted by a jury of CSC-III
and CSC-IV after a three-day trial. He was sentenced as indicated earlier.
Defendant moved for a new trial or a Ginther hearing. And after a four-day Ginther
hearing, the trial court concluded that although defense counsel’s performance on certain
evidentiary issues was deficient, there was no reasonable probability that but for counsel’s errors
the results of the proceeding would have been different. Accordingly, the trial court denied
defendant’s motion for new trial. Defendant now appeals by right.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that the trial court erred by concluding that reversal was unwarranted
based on ineffective assistance of counsel. We disagree. Whether counsel was ineffective presents
a mixed question of fact and constitutional law, and factual findings are reviewed for clear error,
whereas questions of law are reviewed de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme
Court recited the well-established principles that govern a claim of ineffective assistance of
counsel:
To justify reversal under either the federal or state constitutions, a convicted
defendant must satisfy [a] two-part test . . . . First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not performing as the counsel guaranteed by the
Sixth Amendment. In so doing, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy. Second, the defendant
must show that the deficient performance prejudiced the defense. To demonstrate
prejudice, the defendant must show the existence of a reasonable probability that,
but for counsel’s error, the result of the proceeding would have been different. A
-2-
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim. [Quotation marks and citations
omitted.]
An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000).
1. DEFENDANT’S ALLEGED HEARING LOSS
Defendant argues that he suffers from severe and profound hearing loss and could not hear
or understand the witnesses during trial or participate in his defense. Defendant contends that
defense counsel provided ineffective assistance by failing to request or obtain hearing aids for
defendant and by abandoning defendant during the testimony of two crucial witnesses. Defendant
maintains that the trial court clearly erred by finding credible defense counsel’s testimony at the
Ginther hearing that defendant could hear the trial proceedings and did not complain about an
inability to hear during trial. Defendant asserts that defense counsel knew that he wanted his
prescribed hearing aids during trial but that counsel refused to help him in obtaining the hearing
aids. Defendant also claims that the trial court erred by ignoring the testimony of Dr. Jerry Punch,
an expert audiologist.
Defendant argues that defense counsel was not credible because his testimony at the
Ginther hearing conflicted with answers that he gave in response to earlier e-mail questions from
defendant’s appellate counsel. Defendant provides two examples of defense counsel’s purported
lack of credibility. First, defendant states that defense counsel initially informed appellate counsel
that he did not request hearing aids for defendant because “he did not want to lose ‘credibility’
before the trial court.” At the Ginther hearing, defense counsel denied making that statement and
admitted that he was aware of defendant’s hearing-aid request but did not inform the trial court
because he believed that defendant could hear and that the request was a “BS request.” The trial
court accepted as credible defense counsel’s testimony that he did not tell appellate counsel that
the hearing-aid issue was not raised so as to avoid losing credibility with the trial court. The trial
court noted that defense counsel was “loquacious,” that appellate counsel’s interpretation of
defense counsel’s statements did not reflect defense counsel’s intent, and that there was never a
meeting of the minds between the two attorneys regarding the meaning of their conversation.
Defendant’s second example of defense counsel’s alleged lack of credibility arises from an
e-mail exchange between defense counsel and defendant’s appellate counsel in which defense
counsel appeared to suggest that it was better that defendant did not hear the trial proceedings so
that defense counsel could pay attention to the witnesses’ testimony. At the Ginther hearing,
defense counsel acknowledged his response, explaining that it was something that he wrote in jest,
that it was a “very, very, very, very unprofessional” and “absolutely stupid comment,” and that he
never intended to suggest that he wanted defendant to be unable to participate and assist in his
defense. Again, the trial court found defense counsel’s explanation of the e-mail exchange to be
credible and accurate. The court explained:
-3-
In the email, a flippant disregard of defendant’s rights is inferred. This
apparent disregard of defendant’s rights is in stark contrast to trial counsel’s
representation of defendant during the trial in which it was obvious to the court that
trial counsel was heavily invested in the defense and proper representation of
defendant. While one cannot condone trial counsel’s comment, the court accepts
trial counsel’s explanation—that this was an unprofessional comment that did not
reflect trial counsel’s true feelings or reality. Apparently, trial counsel believed that
he had a good and open line of communication with appellate counsel and let a
desire for jovial banter interfere with his professional presentation.
We have no sound basis to interfere with the trial court’s determination that defense
counsel was credible. A Ginther hearing is an evidentiary hearing at which the trial court serves
as the fact-finder, which role requires credibility assessments. See People v White, 331 Mich App
144, 154; 951 NW2d 106 (2020) (“To the extent defendant’s testimony conflicts with trial
counsel’s testimony at the Ginther hearing, we defer to the trial court’s finding that trial counsel
was more credible.”); MCR 2.613(C). “[G]reat deference must be accorded to the trial court’s
assessment of the credibility of witnesses.” People v Cress, 468 Mich 678, 691; 664 NW2d 174(2003).
In the present case, the trial court’s credibility assessment rested not just on defense
counsel’s testimony at the Ginther hearing but also on the court’s observations during pretrial and
trial proceedings, and defendant has not identified any “exceptional circumstances” that would
justify this Court’s rejection of the trial court’s credibility evaluation. See People v Unger, 278
Mich App 210, 232; 749 NW2d 272 (2008) (stating that “[a]bsent exceptional circumstances,
issues of witness credibility are for the trier of fact”).
Defendant next contends that the trial court erred by ignoring Dr. Punch’s testimony
regarding the extent of defendant’s hearing loss and the absence of any credible evidence that
defendant was faking the results of his hearing tests. Our review of the trial court’s opinion and
order following the Ginther hearing reveals that the trial court adequately and accurately
summarized Dr. Punch’s testimony. The question at the Ginther hearing did not truly concern the
extent of defendant’s hearing loss, but whether defense counsel knew that defendant’s hearing loss
may have prevented him from adequately participating in his defense and whether counsel
rendered constitutionally ineffective assistance by purportedly failing to properly act upon that
knowledge. Although Dr. Punch’s testimony spoke to defendant’s hearing loss, it did not speak
to whether defendant informed defense counsel that he could not hear the witnesses and evidence
against him and whether defense counsel ignored that information.
Lastly, defendant asserts that defense counsel’s relocation away from the defense table
when AV and her mother testified deprived him of the opportunity to confer with defense counsel
during testimony and of his right to confront and adequately cross-examine witnesses. At the
Ginther hearing, defense counsel explained that he sat in the gallery 10 to 15 feet away from the
defense table so that he could have an unobstructed view of AV and her mother while they testified.
Counsel stated that he supplied defendant with a pad of paper and a pencil and told defendant that
he was going to move. Defense counsel urged defendant to take notes. Counsel further testified
that defendant actively participated in his defense by taking notes while the witnesses testified and
-4-
giving those notes to counsel before his cross-examination of the witnesses. Defendant also
consulted with defense counsel before the conclusion of each cross-examination. The trial court
found that counsel’s movement into the gallery during the testimony was not unreasonable and
that defendant fully participated in his defense.
Defendant has not challenged on appeal the trial court’s determination that he participated
in his defense. Nor has he challenged defense counsel’s testimony at the Ginther hearing that he
picked up notes from defendant before he started cross-examining a witness and that he consulted
with defendant before he concluded his cross-examination of the witness. Given that defendant
aided in his defense by taking notes during the witnesses’ testimony, provided the notes to defense
counsel to aid in cross-examination, and then consulted with counsel before the end of cross-
examination, we conclude that defendant has not shown that he was deprived of the right to
confront and adequately cross-examine witnesses.2
For the foregoing reasons, we hold that defendant has not established that the trial court
erred by determining that defense counsel’s testimony was credible, by concluding that counsel
did not render ineffective assistance for failing to request or obtain hearing aids for defendant, or
by finding that counsel’s move to the gallery was reasonable and did not deprive defendant of his
constitutional rights.
2. MIRANDA VIOLATIONS
Defendant next contends that the trial court erred by concluding that, despite defense
counsel’s deficient performance in failing to move to suppress statements made after inadequate
Miranda3 warnings, failing to object to the prosecutor’s reference to defendant’s silence, and
failing to ask for a curative instruction, there was not a reasonable probability that the outcome of
the trial would have been different. Ultimately, the jury heard testimony that defendant supposedly
told a detective that AV had “great tits” and that defendant told the detective that he no longer
wished to speak, and the jury heard the prosecutor briefly reference these matters. We agree with
the trial court that defendant did not establish the requisite prejudice.4
There was no dispute at trial that defendant drove AV to his house and that they were alone
at that location for several hours. AV testified that defendant told her that she could be a model,
that he asked her about her sexual experiences, and that defendant wanted to know her favorite
sexual position. AV also testified that defendant had her kiss him on the cheek when they practiced
MMA kicks behind the motel and that he had her kiss him on the lips at the house. A photograph
of defendant and AV kissing was admitted into evidence and published to the jury. AV indicated
that defendant licked her breast “many, many times,” and the SANE testified that she swabbed
2
We cannot help but observe that defendant’s ability to take notes regarding the testimony of
witnesses entirely undermines his earlier argument that he could not hear the testimony.
3
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
4
We will assume that the trial court correctly determined that counsel’s performance was deficient
on these matters.
-5-
AV’s “right breast around the nipple.” A DNA expert testified that defendant’s DNA was a match
to the DNA obtained from the right-breast swab. We find the evidence of defendant’s guilt
overwhelming. Furthermore, the reference to defendant’s silence was brief and minimal, People
v Shafier, 483 Mich 205, 217-218; 768 NW2d 305 (2009), and there was no indication that
defendant unequivocally invoked his right to remain silent, People v Todd, 186 Mich App 625,
628-629; 465 NW2d 380 (1990).5 We conclude that defendant has not shown the existence of a
reasonable probability that but for counsel’s errors the result of the proceeding would have been
different; we have confidence in the outcome. Carbin, 463 Mich at 600.
3. EVIDENCE
Defendant next argues that defense counsel was ineffective for failing to properly review
a surveillance video from defendant’s house where the assault allegedly took place and to use it to
impeach AV’s testimony and buttress defendant’s theory of defense.6
Defendant first contends that the video evidence could have been used to impeach AV’s
testimony that she and defendant arrived at the house together. Regardless of whether the video
showed or did not show AV’s and defendant’s arriving at the house together, photographic
evidence indisputably established that AV and defendant were together in the four-seasons room
of the house, and video footage showed them leaving the home together. Furthermore, AV’s
mother testified that defendant and AV left the motel together in his car, and a deputy testified that
defendant told him that he took AV to the house to conduct MMA training. Defendant notes that
the footage does not show AV arriving at the house; however, as already indicated, indisputable
photographic evidence established that she was there with defendant.
Defendant next contends that the video footage could have been used to impeach AV’s
testimony that she and defendant spent five hours at the house and that there was a puppy in the
home. Defendant claims that the footage revealed that AV was at the house no more than three
hours and that it did not show a puppy. The video, however, was unnecessary to establish
conflicting evidence concerning how long AV was at the house. AV testified at one point that she
was at the house for about five hours, but then she later testified that she was there from about 3:30
5
With respect to defense counsel’s decision not to ask for a curative instruction, we find that
defendant has not overcome the strong presumption that counsel’s decision constituted sound trial
strategy. Defense counsel testified at the Ginther hearing that he believed that the discussion
during a sidebar that the trial court called shortly after the prosecutor’s improper question put a
stop to references to defendant’s silence. And defense counsel did not want to draw the jury’s
attention to defendant’s silence by asking for a curative instruction. We find this explanation and
counsel’s conduct to be reasonable.
6
Defendant also argues that he received ineffective assistance when defense counsel failed to
obtain or review the audio recording of the custodial interrogation. Our earlier finding of no
prejudice in regard to the Miranda violation effectively dispensed of this argument even if the
audio revealed that defendant told the detective that AV had “great kicks” and not “great tits.”
-6-
p.m. until 7:00 p.m. With respect to the lack of video evidence of a puppy, there was testimony
that there were no surveillance cameras in the bedroom, and AV’s testimony indicated that the
puppy was in the bedroom. That the dog was in the bedroom might plausibly explain why there
were no images of the dog on the surveillance videotape.
Lastly, defendant asserts that the video footage could have been used to buttress his
contention that he was conducting MMA training because it shows him taking boxing gloves and
pads out of the car on more than one occasion. There was, however, no dispute that defendant
conducted MMA training. AV testified that defendant showed her wrestling moves, and
photographs of her and defendant depicted AV wearing boxing gloves.
Given the foregoing, we conclude that defendant has not overcome the strong presumption
that counsel’s decision not to use the surveillance video constituted sound trial strategy under the
circumstances. That a strategy did not work does not necessarily amount to ineffective assistance
of counsel. People v Petri, 279 Mich App 407, 412-413; 760 NW2d 882 (2008).
In short, we hold that defendant has not established deficient performance and/or prejudice
with respect to his claims of ineffective assistance of counsel; therefore, defendant’s claims of
ineffective assistance of counsel fail.
B. IDENTIFICATION
Defendant next asserts that the trial court erred by not striking the testimony of a witness
who provided evidence under MRE 404(b). Defendant argues that the testimony was inadmissible
because the witness could not identify defendant in the courtroom. We disagree.
This Court reviews for an abuse of discretion a trial court’s decision to admit evidence.
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). In regard to evidentiary issues, this
Court reviews de novo preliminary questions of law, such as whether a rule of evidence precludes
admissibility. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). “A preserved error
in the admission of evidence does not warrant reversal unless after an examination of the entire
cause, it shall affirmatively appear that it is more probable than not that the error was outcome
determinative.” Burns, 494 Mich at 110 (quotation marks and citation omitted).
The witness at issue testified that she met a “Christopher Sanchez” about 21/2 years before
the trial when he came to her sister’s house to train the witness in MMA techniques. She claimed
that during the training Sanchez pinned her to the floor and rubbed and touched her inappropriately
on her chest, legs, and arms. The witness stated that she could feel his penis moving up and down
in her “private area.” The witness was unable to identify defendant in the courtroom, but she
identified him in a photograph that had been admitted into evidence and that had been taken closer
in time relative to the sexual assault.
Defendant moved to strike the witness’s testimony on the basis of her inability to identify
defendant in the courtroom. The trial court denied the motion. The court reasoned that the
witness’s contact with the person whom she knew as Christopher Sanchez had been minimal and
more than two years before the trial. The trial court further reasoned that the witness’s statement
that the Christopher Sanchez she knew held himself out to be an MMA trainer constituted a
-7-
“secondary” means of identification. Finally, the court noted that defendant’s hairstyle looked
very different at trial in comparison to the 2019 photograph that the witness had used to identify
defendant. Under the circumstances presented, and in light of the trial court’s sound reasoning,
we conclude that the trial court did not abuse its discretion or otherwise err by declining to exclude
the witness’s MRE 404(b) testimony. Reversal is unwarranted.7
C. ALLEGED SENTENCING SCORING ERRORS
Next, defendant argues that the trial court erred in scoring offense variables (OVs) 3, 10,
and 13. We conclude that it is only necessary for us to address and resolve defendant’s challenge
regarding OV 13. In People v Horton, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket
No. 360726); slip op at 2, this Court stated:
Under the sentencing guidelines, the trial court’s findings of fact are
reviewed for clear error and must be supported by a preponderance of the evidence.
Clear error is established when the appellate court is left with a firm and definite
conviction that an error occurred. This Court reviews de novo whether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute. In
scoring OVs, a court may consider all record evidence, including the contents of a
PSIR, plea admissions, and testimony presented at a preliminary examination. The
trial court may rely on reasonable inferences arising from the record evidence to
sustain the scoring of an offense variable. When a preserved scoring error alters the
appropriate guidelines range, resentencing is generally required. This Court
reviews de novo issues involving the interpretation of the sentencing variables.
[Quotation marks, citations, brackets, and ellipses omitted.]
Defendant argues that the trial court erred by assessing 25 points for OV 13. OV 13 is
properly assessed at 25 points if the sentencing offense “was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person[.]” MCL 777.43(1)(c). When determining
the appropriate number of points to score under OV 13, “all crimes within a 5-year period,
including the sentencing offense, shall be counted regardless of whether the offense resulted in a
conviction.” MCL 777.43(2)(a). “A sentencing court is free to consider charges that were earlier
dismissed if there is a preponderance of the evidence supporting that the offense took place.”
People v Nix, 301 Mich App 195, 205; 836 NW2d 224 (2013) (citation omitted).
On appeal, defendant’s sole objection to the trial court’s assessment of 25 points for OV 13
is that the court took into consideration the 2018 sexual assault that was the subject of defendant’s
argument under MRE 404(b). Defendant objects to the inclusion of this incident in scoring OV
13 because the witness could not identify defendant in the courtroom and because defendant was
not charged with any crime in relation to the assault. As discussed earlier, the witness identified
defendant through a photograph, and, under the circumstances, the trial court did not err by
7
Defendant contends that the cumulative effect of multiple errors in this case deprived him of due
process. Having found harmless error solely in the context of the Miranda-related arguments,
defendant’s due-process argument fails.
-8-
allowing this form of identification and by denying defendant’s motion to strike the witness’s
testimony. We find that the evidence in respect to scoring OV 13 was adequate to find that
defendant committed a crime against a person in relation to the 2018 sexual assault. Moreover,
the fact that there was no charge or conviction was irrelevant in scoring OV 13. See MCL
777.43(2)(a); Nix, 301 Mich App at 205. Accordingly, the trial court did not err by assessing 25
points for OV 13.
The sentencing information report (SIR) that set forth the scoring of the OVs and prior
record variables (PRVs) indicated that defendant’s total OV score was 75 points, placing him at
OV level VI, which is the top OV level in the pertinent Class B grid. See MCL 777.63. A total
score of 75-or-more points justifies placement of a defendant at OV level VI. Id. Taking into
consideration defendant’s total PRV score of 75 points along with his total OV score of 75 points
and the fact that he was a fourth-offense habitual offender, defendant’s minimum sentence
guidelines range was 117 to 320 months’ imprisonment. Id.; MCL 777.21(3)(c).8 The SIR
reflected that OV 11 was assessed at zero points. But at the sentencing hearing, the trial court
found that OV 11 should have been scored at 25 points; therefore, defendant’s total OV score was
actually 100 points, which defendant acknowledges in his brief on appeal. Defendant challenges
the 10-point assessment for OV 3 and the 15-point assessment for OV 10, which defendant
essentially concedes should have been scored at 5 and 10 points, respectively. But even if OVs 3
and 10 should have been scored at zero points, this would result in a 25-point deduction in
defendant’s total OV score of 100 points, dropping him down to 75 total points, meaning that he
would still be at OV level VI, and there would be no change in the guidelines range. See People
v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2004) (“Where a scoring error does not alter the
appropriate guidelines range, resentencing is not required.”). Accordingly, we need not address
and resolve defendant’s challenges to the scoring of OVs 3 and 10.
D. DEPARTURE SENTENCE
Defendant’s final claim of error is that the trial court imposed an upward-departure
sentence that was unreasonable and disproportionate. We disagree.
This Court reviews for reasonableness “[a] sentence that departs from the applicable
guidelines range.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). In People v
Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), our Supreme Court provided
elaboration on the “reasonableness” standard, stating:
[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), “which requires sentences imposed by the trial court to be proportionate to
the seriousness of the circumstances surrounding the offense and the offender.”
8
We note that defendant was subject to a mandatory minimum sentence of at least 25 years’
imprisonment under MCL 769.12(1)(a).
-9-
Factual findings related to a departure must be supported by a preponderance of the
evidence and are reviewed for clear error. People v Lawhorn, 320 Mich App 194, 208-209; 907
NW2d 832 (2017). For purposes of sentencing, “a court may consider all record evidence,
including the contents of a PSIR,[9] plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015).
The key test is not whether a sentence departs from or adheres to the guidelines range but
whether the sentence is proportionate to the seriousness of the matter. Steanhouse, 500 Mich at
472. “The premise of our system of criminal justice is that, everything else being equal, the more
egregious the offense, and the more recidivist the criminal, the greater the punishment.” People v
Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003). Sentencing judges are “entitled to depart
from the guidelines if the recommended ranges are considered an inadequate reflection of the
proportional seriousness of the matter at hand.” Milbourn, 435 Mich at 661. A sentence within
the guidelines might be disproportionality lenient. Id. “Where a defendant’s actions are so
egregious that standard guidelines scoring methods simply fail to reflect their severity, an upward
departure from the guidelines range may be warranted.” People v Granderson, 212 Mich App
673, 680; 538 NW2d 471 (1995).10 In People v Lampe, 327 Mich App 104, 126; 933 NW2d 314(2019), this Court indicated that the factors that may be considered by a trial court under the
proportionality test include, but are not limited to, the following:
(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. [Quotation marks and citation omitted.]
“[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 would have been.” People v Dixon-Bey, 321 Mich App
490, 525; 909 NW2d 458 (2017) (quotation marks and citations omitted). “When fashioning a
proportionate minimum sentence that exceeds the guidelines recommendation, a trial court must
justify why it chose the particular degree of departure.” People v Smith, 482 Mich 292, 318; 754
NW2d 284 (2008). We note that our Supreme Court has now held “that due process bars
sentencing courts from finding by a preponderance of the evidence that a defendant engaged in
conduct of which he was acquitted.” People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019).
The trial court sentenced defendant to a minimum sentence of 420 month’s imprisonment
(35 years)—an upward departure of 100 months (81/3 years). The trial court relied on court
documents, police reports, and motions held earlier in the proceedings to articulate a number of
9
PSIR stands for presentence investigation report.
10
We emphasize, however, that although the guidelines are no longer mandatory, they remain a
highly relevant consideration for purposes of exercising sentencing discretion, and trial courts must
consult and take into account the guidelines when imposing sentence. Lockridge, 498 Mich at
391.
-10-
reasons in support of its upward-departure sentence. The court based its decision primarily on its
determination that a minimum sentence within the guidelines range was not proportionate to the
offender. The trial court opined that the sentencing guidelines did not adequately account for
defendant’s years-long pattern of sexually assaulting young women. The trial court also did not
believe that the guidelines adequately accounted for the fact that defendant had been twice
convicted of violating the Sex Offenders Registration Act, MCL 28.721 et seq. Nor did the trial
court believe that the OVs sufficiently accounted for defendant’s method of making his young
victims vulnerable by taking advantage of their “desire for recognition and fame and then
progressing to using them for his personal sex toy.” The trial court characterized defendant as the
“figurative wolf in sheep’s clothing,” a “patient, scheming rapist.” The trial court noted that
defendant expressed no remorse, see Lampe, 327 Mich App at 126, and found there to be no
mitigating factors: Defendant had not succumbed to youthful indiscretion, was not provoked, and
was not acting out of character because of the influence of alcohol or drugs. The court
characterized defendant as an “antisocial criminal” with little potential for rehabilitation.
Defendant did not take responsibility for his actions, nor had he done anything to address his
proclivities. As evidence that defendant was “not to be trusted and had no moral compass,” the
trial court recounted that after defendant impregnated a 14-year-old girl in 2008, he tried to “pin
the blame and the DNA results on [his] then 14 or 15-year-old son.”
The trial court articulated several reasons why the guidelines failed to provide a
proportionate sentence and why an increase in defendant’s sentence was proportionate to the
offender. Defendant has not argued on appeal that any of these reasons were improper. In People
v Barnes, 332 Mich App 494, 506-507; 957 NW2d 62 (2020), this Court affirmed a seven-year
upward departure on the basis of the trial court’s explanation that the guidelines did not fully
account for the seriousness of the offense, that the defendant lacked remorse, and that there was
no demonstrative potential for rehabilitation. Similarly, we conclude that the trial court’s reasons
for departure were proper and that the court’s upward departure of 81/3 years was proportionate to
the seriousness of the circumstances surrounding the offense and the offender, especially in regard
to the offender.
We affirm.
/s/ Jane E. Markey
/s/ Christopher M. Murray
/s/ Kathleen A. Feeney
-11-