Opinion
No. 344287
01-22-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEANDRE RODRIQUEZ LAWSON, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Shiawassee Circuit Court
LC No. 2017-009963-FH Before: BOONSTRA, P.J., and SAWYER and TUKEL, JJ. PER CURIAM.
Defendant appeals by delayed leave granted the sentence of two years' probation with one year in jail imposed by the circuit court for defendant's plea-based conviction of attempted retail fraud, MCL 750.356c(1)(b) and MCL 750.92(3). We affirm.
I. FACTS
On July 21, 2017, defendant attempted to steal numerous bottles of liquor and other items from a Meijer grocery store in Corunna, Michigan. Defendant's presentence investigation report offers the following summary:
[The Michigan State Police were] dispatched to Meijer in Corunna . . . for a retail fraud in progress. Upon arrival, Officer Lutz of [the Corunna Police Department] was already on scene and had the two suspects detained. Meijer's Loss Prevention Officer Dickenson stated [that] he was on the sales floor when he observed two subjects place several bottles of liquor into their cart. When the suspects exited the liquor aisle, a female, later identified as Ciara Moore, handed the keys to the defendant who exited the store. Ms. Moore then proceeded to
push the cart through lane 20, which was closed and did not have a cashier. She passed the last point of sale and did not offer any sort of payment.In pleading guilty, defendant admitted that he attempted to take several bottles of liquor along with various items adding up to a value of more than $1,000.
Ms. Moore passed through the EMS system and the alarms went off as she was leaving the store. She started to walk quickly toward the doors. Loss Prevention Officer Dickenson of Meijer made contact with Ms. Moore and tried to stop her as she was approaching the awaiting vehicle. The defendant jumped out of the car and confronted Loss Prevention Officer Dickenson and stated, "Hey bro, what . . . are you doing touching my girl's cart?" The defendant was informed by Loss Prevention Officer Dickenson he was trying to recover stolen merchandise from the store. After the defendant and Ms. Moore removed a few bags, the defendant stated, "Leave the rest," and the two got into their vehicle and left. All the items were recovered and the two suspects were lodged in the Shiawassee County Jail.
II. ANALYSIS
Defendant argues that the trial court abused its discretion and imposed a disproportionate sentence in departing from a corrected sentencing guidelines recommendation for a sentence of 0 to 6 months and instead imposing two years' probation with one year in jail. We disagree.
A departure sentence is reviewed for reasonableness, People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), and the trial court's determination of reasonableness is reviewed for an abuse of discretion, People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). A departure sentence is reasonable if it is "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id. at 460.
Although sentencing courts are no longer obligated to find a substantial and compelling reason to depart from the minimum sentence range as calculated under the statutory sentencing guidelines, courts are still required to score and consider the guidelines when imposing a sentence. Lockridge, 498 Mich at 391-392. When calculating the guidelines range, a court may consider all record evidence, including the contents of a PSIR and admissions from plea proceedings. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). A PSIR "is presumed to be accurate and may be relied on by the trial court unless effectively challenged by the defendant." People v Callon, 256 Mich App 312, 334; 662 NW2d 501 (2003). In this case, defendant neither challenges the information contained within his PSIR, nor argues that the court misapplied the facts in scoring the guidelines.
A. PROPORTIONALITY
Recently, in People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458 (2017) (quotation marks and citations omitted), lv gtd 501 Mich 1066 (2018), this Court provided guidance for determining whether a departure sentence satisfies the principle of proportionality:
Because the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a useful tool or guideposts for effectively combating disparity in sentencing. Therefore, relevant factors for determining whether a 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. When making this determination and sentencing a defendant, 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.In this case, the trial court opined that the guidelines recommendation did not reflect the seriousness of the crime in part because the guidelines did not take relevant factors into account. The court explained as follows:
You know, I picked up the way you treated the Loss Prevention Officer: ["]Hey, bro, what . . . are you doing touching my girl's cart?["] I've never seen that before. . . . And that tells me that you have very little fear, or very little concern with the situation that you found yourself in. Most folks would say: Whoops, sorry—here's the stuff. What can I do? Not you, you stood up, and said: Get away. We're leaving. Most likely, that comes from experience. . . .
[T]he Court . . . is charged with finding a sentence that's both reasonable and proportional to the seriousness of the offense and the offender.
In this case the Court finds that the guidelines at zero to six just aren't reasonable.
The guidelines generally consider each offender's criminal history and the circumstances of the sentencing offense. However, the general nature of the consideration can introduce distortions when applied to a particular Defendant.
At the outset I'll note that . . . [i]n exchange for your plea . . . the Prosecutor's Office agreed to drop the charge of Operating While License is Suspended, to reduce the Retail Fraud First Degree to an Attempt, and not to prosecute you for absconding on bond, because, remember, you weren't here for a plea—we had to go and pick you up to bring you in.
Dismissed or uncharged conduct as part of the plea agreement may properly form the basis for an upward departure. . . .
The Court notes in the PSIR that you report that you've used barbiturates daily since 2006, marijuana daily since 1997, and alcohol almost daily since 2001. You have no significant work history, and no work history at all since 2008. You went to inpatient treatment in 2016, but that didn't appear to mitigate your drug
use. It appears that you may have some ongoing mental health issues for which you are not seeking, or participating in treatment.
So, all those things taken together suggest that you're not a likely candidate for rehabilitation. And that informs the Court that its decision should focus on punishment and deterrence to others similarly situated, and the need to protect society from your criminal activity.
And this Court believes that that can best be accomplished by departing upward from these advisory guidelines.
And before imposing sentence . . . the Court notes that it would depart upward to reach its chosen sentence even if the guidelines were scored differently, or if only one of the factors listed by the Court were present.
And, you know, [the prosecuting attorney] said, you know, when folks come to Shiawassee County, deal drugs, murder, stealing, and—enough. You know, I would want folks to look at your sentence and say: Gees, maybe I shouldn't go to Shiawassee County to steal, maybe we should go somewhere else, or maybe not steal at all.
So, emphasizing deterrence as one of the goals of sentence . . . you'll be placed on probation for two years, and all the proposed orders of probation that are set forth in the Presentence Investigation Report that you said you read will be ordered.
* * *
. . . If you come to Shiawassee County and commit a crime, plan on staying a while. . . . Your sentence . . . will be one year in the county jail . . . .
Defendant argues that the sentence was not proportional because the trial court characterized him as a recidivist criminal who deserved greater punishment, even though the defendant's previous crimes were not serious enough for the assessment of points as prior offenses under the sentencing guidelines. The court did highlight defendant's previous criminality, and did so properly despite defendant's protestations. It is apparent from the context that, in speaking about the criminality defendant displayed, the court was referring to the charges the prosecution dismissed in exchange for defendant's guilty plea. "A sentencing court is allowed to consider the facts underlying uncharged offenses, pending charges, and acquittals." People v Coulter, 205 Mich App 453, 456; 517 NW2d 827 (1994). "Further, this Court has recognized that a sentencing court may consider the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing." Id. The conduct underlying the dropped charges was factually connected to defendant's conviction of attempted retail fraud, thus reflective of the quantum of illegal acts the record indicates that defendant performed during the 2017 incident at Meijer.
Defendant's aggression toward store officials when accused of stealing was also a proper basis for the court to depart from the guidelines. Evidence that defendant displayed indignation and hostility in the matter was not considered by the guidelines, and a reasonable jurist could thus determine that the guidelines did not reflect the seriousness of the crime. See Dixon-Bey, 321 Mich App at 524-525. Defendant attempted to complete a theft through confrontation and intimidation, then fled the scene. Defendant's manner of carrying out the crime showed a particular lack of respect for the property and well-being of others.
Defendant also argues that the court improperly relied on his issues with substance abuse and mental health issues. The court stated that because defendant was diagnosed with mental illness but did not take any attendant medications, and attended a substance abuse program in 2016 yet was intoxicated during the incident in 2017, defendant was not a likely candidate for rehabilitation. The court thus reasoned that, instead of rehabilitation, deterrence should be the motivating factor for sentencing. A defendant's potential for rehabilitation or propensity for recidivism and misconduct while in custody are factors not recognized by the guidelines, and may be considered by a trial court when imposing a departure sentence. People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015), rev'd in part on other grounds Steanhouse, 500 Mich 453.
We might take a different view of rationalizing departures from the guidelines on a defendant's substance abuse and mental health issues if those things were wholly unrelated to the sentencing offense. But in this case, defendant stated that he was "under intoxication" and was abusing alcohol at the time of the 2017 incident at Meijer, having told his presentence interviewer that he had turned to heavy drinking when his brother died, and that underlying the instant offense was the urgent need he felt for more liquor upon learning that his mother had cancer. Defendant additionally reported that he was diagnosed with bipolar disorder along with post-traumatic stress disorder in 2009 but did not take any medications for those conditions.
The court's use of defendant's unaddressed substance and mental health issues in crafting a departure sentence does not call for resentencing. The court was highlighting its concern that defendant had not taken appropriate measures to mitigate some possible criminal tendencies. A reasonable jurist could infer that defendant's demonstrated failures or unwillingness to address his substance abuse and mental health issues contributed to his behavior at Meijer. That defendant was doing nothing to remedy those personal issues that contributed to his crime was a factor not addressed by the sentencing guidelines. See Dixon-Bey, 321 Mich App at 524-525. The trial court's opinion that defendant would not likely be easily rehabilitated, and that deterrence should be a prime sentencing goal, was a justifiable conclusion given the facts before it.
Further, the court properly explained why the sentence imposed was more proportionate to the offense and the offender than a sentence within the guidelines range would have been. Dixon-Bey, 321 Mich App at 524-525. The court was concerned with the indignant manner in which defendant attempted to steal from Meijer, his unaddressed behavioral and substance-abuse issues, and its belief that defendant could not be easily rehabilitated and needed to be punished with emphasis on the goal of deterrence.
Moreover, the departure imposed only six months' additional incarceration over what the high end of the corrected guidelines range recommended. This was not an abuse of discretion in light of the manner in which defendant conducted the attempted retail fraud.
B. INDIVIDUALIZED SENTENCING
In arguing that the trial court failed to craft an individualized sentence as required, defendant asserts that court adhered to a local sentencing policy instead of proper sentencing criteria. "A sentence is invalid if the court conforms the sentence to a local sentencing policy rather than imposing an individualized sentence." People v Catanzarite, 211 Mich App 573, 583; 536 NW2d 570 (1995).
In People v Chapa, 407 Mich 309, 310; 284 NW2d 340 (1979), the trial court had sentenced the defendant to a minimum of eight years' imprisonment for delivery of, and conspiracy to deliver, heroin. The Supreme Court noted that a localized court policy concerning heroin "remove[d] much of the discretion that the [trial] court might otherwise have relative to sentences" when it determined that it had an "obligation" to sentence defendant to prison. Id. The Supreme Court held that "[t]he sentencing judge erred . . . in limiting his discretion in accordance with the stated local policy." Id. at 311. See also People v Pennington, 323 Mich App 452, 469; 917 NW2d 720 (2018).
Defendant argues that the court's statements reflecting the prosecuting attorney's concerns about persons coming to Shiawassee County to commit crime revealed adherence to such a local policy. We disagree. In Pennington, the trial court was adhering to a local policy of penalizing defendants who were convicted after standing on their constitutional rights by declining plea offers and going to trial by imposing sentences at the high end of the guidelines. See US Const, Am VI; Const 1963, art 1, § 20.
In this case, the court's statement did not explicitly or impliedly state that it was adhering to any local sentencing policy. If any inference were to be reasonably drawn from the court's statements, it would be that the court found the prosecuting attorney's argument that defendant should be sentenced above the recommended guidelines to be compelling. The prosecuting attorney's remarks included the following:
We don't tolerate that stuff. First of all, we don't tolerate you coming into our county and stealing, and secondly, when you're caught, own it, and don't argue with the Loss Prevention Officers, don't give them attitude, and, certainly, don't use profanities with them.When read in context, the comments merely constitute a call for general deterrence, which is a legitimate goal of sentencing. See People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). That the trial court credited such argument does not mean that the court failed to craft an individualized sentence for defendant.
So, I realize that the guideline range is zero to six. I don't know if six months is enough. I know that was the recommendation when it assumed that the guidelines were zero to nine. However, I'd ask that the Court fashion a sentence so that the message gets out, not only to [defendant], but to anyone else who thinks it's a good idea to come to Shiawassee and steal from our Meijer[s], or our Walmart, or any of our other retail operations.
Moreover, the court's statements bring to light no cause and effect of the sort determined to be improper in Pennington, where the sentencing judge acted on a personal determination to sentence defendants who eschewed plea bargaining for jury trials at the high end of the guidelines recommendation. In this case, the court merely highlighted reasons why it believed a departure sentence would be all the more proportionate and reasonable.
Defendant argues that, in stating, "And before imposing sentence . . . the Court notes that it would depart upward to reach its chosen sentence even if the guidelines were scored differently, or if only one of the factors listed by the Court were present," the court showed that it was applying a local policy. We read the statement as a mere expression of the conclusion that defendant as an individual warranted a departure sentence to deter him from further criminal behavior. The court was advising that any one of the reasons it set forth for departing from the guidelines range would independently justify the departure. Those comments did not suggest the existence of, or adherence to, some local sentencing policy.
Affirmed.
/s/ Mark T. Boonstra
/s/ David H. Sawyer
/s/ Jonathan Tukel
People v Lawson, unpublished order of the Court of Appeals, entered July 19, 2018 (Docket No. 344287).