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No. 131898
| The People of the State of Michigan, |
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Frederick L. Anderson |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Allegan - Beach, H.) |
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| Jesse Gene Burns, |
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Jeanice Dagher-Margosian |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
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Attorney General and Prosecuting Attorneys Association of Michigan's Amici Curiae Brief>>
Criminal Defense Attorneys of Michigan's Amicus Curiae Brief>>
Background
Jesse Burns pled guilty to attempted breaking and entering. At sentencing, the trial court determined Burns’ prior record variable score (PRV) and his offense variable (OV) score, in order to find the range within which Burns’ minimum sentence should fall. The sentencing guidelines indicated that a proper minimum sentence for Burns was in the range of zero to 11 months. This range calls for the imposition of an “intermediate sanction,” which means that the sentencing judge cannot sentence the defendant to a prison term without departing from the guidelines. The sentencing judge did not depart from the guidelines and sentenced Burns to a term of three years’ probation. Among other things, the probation conditions stated that Burns could not violate any laws, threaten or assault anyone, or consume alcohol or illegal drugs. Burns was later arrested for violating his probation by using alcohol, committing fourth-degree criminal sexual conduct, and engaging in assaultive behavior and harassment. Burns pled not guilty to the charges, so an evidentiary hearing was held. The trial judge found by a preponderance of the evidence that Burns was guilty of being intoxicated, committing fourth-degree criminal sexual conduct, and doing so in an intimidating fashion. At sentencing, the judge acknowledged that Burns’ original sentencing guidelines were zero to 11 months, but he sentenced Burns to a prison term of 18 months to five years. The sentencing judge explained that Burns’ recent behavior, which amounted to a violation of the terms of his probation, provided a substantial and compelling reason for a “moderate” departure from the sentencing guidelines. Burns filed a motion for resentencing arguing, among other things, that his sentence violated Blakely, but the trial court denied the motion. The Court of Appeals then denied his application for leave to appeal. Burns appeals.
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