5.8Appellate Review¹

Both within-guidelines and out-of-guidelines sentences are reviewed for reasonableness. People v Posey, 512 Mich 317, 352 (2023);² People v Lockridge, 498 Mich 358, 392 (2015). A sentence is unreasonable if it violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630, 636 (1990).³ People v Steanhouse (Steanhouse II), 500 Mich 453, 459-460, 473 (2017). The principle of proportionality requires a sentence “to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 460 (quotation marks and citation omitted). Whether a sentence is reasonable is reviewed for an abuse of discretion. Id. at 459-460.⁴ “Resentencing will be required when a sentence is determined to be unreasonable.” Lockridge, 498 Mich at 392.

A.Proportionality Test

A sentence is proportionate when it reflects the seriousness of the circumstances surrounding the offense and the offender’s criminal history. People v Milbourn, 435 Mich 630, 636 (1990).

In Steanhouse I, the Court of Appeals noted that under Milbourn, departures from the advisory judicial guidelines then in effect were appropriate “‘where the guidelines do not adequately account for important factors legitimately considered at sentencing.’” People v Steanhouse (Steanhouse I), 313 Mich App 1, 45 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),⁵ quoting Milbourn, 435 Mich at 657. Accordingly, an out-of-guidelines sentence should be imposed when “‘the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.’” Steanhouse I, 313 Mich App at 45, quoting Milbourn, 435 Mich at 657.

“Factors that may be considered by a trial court under the proportionality standard include, but are not limited to:

•‘the seriousness of the offense;

•factors that were inadequately considered by the guidelines; and

•factors not considered by the guidelines[.]’” People v Walden, 319 Mich App 344, 352 (2017), quoting Steanhouse I, 313 Mich App at 46 (bullets substituted for numerals).

Some examples of factors not considered by the guidelines include “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.” Walden, 319 Mich App at 352-353 (quotation marks and citation omitted). See also Steanhouse I, 313 Mich App at 46; People v Houston, 448 Mich 312, 321-324 (1995); Milbourn, 435 Mich at 660-661.⁶

The proportionality of a defendant’s sentence is considered separately and not in reference to any consecutive or concurrent mandatory sentence; accordingly, where a defendant is sentenced to multiple consecutive terms of imprisonment, the proportionality of the sentence is not determined by the cumulative effect of the defendant’s sentences. People v Miles, 454 Mich 90, 94-95 (1997).

A trial court is not required to consider a codefendant’s sentence when imposing sentence on another codefendant; that is, each individual convicted of a crime, when more than one individual participated in the same crime, is not entitled to receive a sentence similar to the sentences received by other participants. People v Colon, 250 Mich App 59, 64 (2002).

See also the Michigan Judicial Institute’s the Articulation of Reasons for Out-of-Guidelines Sentence sample form.

B.Presumptions

There is no presumption of unreasonableness for sentences outside the guidelines range. People v Steanhouse (Steanhouse II), 500 Mich 453, 474-475 (2017) (while “the guidelines remain a highly relevant consideration in a trial court’s exercise of sentencing discretion, . . . the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range”) (quotation marks and citations omitted). However, within-guidelines sentences are subject to a nonbinding rebuttable presumption of proportionality that the defendant bears the burden of rebutting. People v Posey, 512 Mich 317, 360 (2023) (Justice Welch agreed with this remedy). See also People v McFarlane, 325 Mich App 507, 538 (2018) (rejecting defendant’s argument that his sentence was “not proportionate and amounted to cruel and unusual punishment,” and holding that when a sentence is presumptively proportionate, the defendant has the burden to rebut the presumption by showing “that there was something unusual about the circumstances of [the] case that made the sentence disproportionate”); People v Purdle, ___ Mich App ___, ___ (2024) (rejecting defendant’s argument that his race and age at the time of sentencing rendered his within-guidelines sentence disproportionate and holding “[t]he seriousness of his offense is not lessened by [defendant’s] age and race when he was sentenced”).

In People v Posey (On Remand), ___ Mich App ___, ___ (2023), the Court conducted a reasonableness review of the defendant’s within-guidelines sentence. The Court summarized the legal framework governing such a review, stating “reasonableness review requires a determination whether a sentence was proportionate,” and that under the presumption of proportionality, “a within-guidelines sentence is not binding on the Court of Appeals,” and “the defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate[.]” Id. at ___ (quotation marks and citations omitted). The Court concluded the defendant’s sentence was reasonable, and rejected the defendant’s argument that the sentence was “inherently unreasonable because the trial court did not deviate from those sentences after the guidelines range had been lowered by the court.”⁷ Id. at ___. The Court explained “[t]here is no supporting legal authority for the proposition that if a guidelines range is lowered, a trial court is mandated to also lower the minimum sentence on resentencing to render the sentence reasonable.” Id. at ___. Further, because the defendant bears the burden to demonstrate that the sentences were unreasonable and disproportionate, the trial court was not required to further explain its reasoning where it already noted “that defendant had committed the same crime for which he was on parole and . . . had used a firearm.” Id. at ___ (noting “[t]his was a powerful reason for imposing a minimum sentence of 22 years’ imprisonment given the patently serious nature of the [assault with intent to commit murder] offenses,” and that “there is nothing in [the Supreme Court’s decision in] Posey suggesting that a sentencing court needs to expressly explain why a within-guidelines sentence is reasonable and proportionate”).

The defendant failed “to present any unusual circumstances sufficient to overcome the presumption of proportionality” for his within-guidelines 22-year sentence where he received a harsher sentence than his codefendants. People v Ventour, ___ Mich App ___, ___ (2023). The defendants’ codefendants both pleaded guilty and received a 21-year sentence and a 16-year sentence; the Court noted that while “a sentencing court cannot base its sentence on a defendant’s decision to exercise his constitutional right to a jury trial,” a sentence “is not necessarily unconstitutional where it is higher following a trial than had he taken a plea.” Id. at ___ (cleaned up). The Court concluded that there was no sentencing error where the trial court explained its imposition of a sentence near the top of the guidelines range and its “reasons for the different sentences.” Id. at ___. The trial court noted the codefendants’ sentences, and explained that the evidence demonstrated that defendant was “the conductor of everything that happened that day.” Id. at ___ (cleaned up). The Court concluded that the sentencing court’s “conduct at sentencing demonstrates that it thoroughly considered the circumstances of the offense and the applicable guidelines range to determine an appropriate penalty,” and “[t]he record does not support defendant’s claim that the trial court imposed a harsher sentence to punish him for exercising his right to a jury trial, or that his sentence is disproportionate or unreasonable because it is longer than the sentences received by the codefendants.” Id. at ___.

Defendant’s contention that “his minimum sentence [was] the equivalent of a death sentence when considered in light of the life expectancy of African American men, both in general and in Michigan’s prisons” did not establish that defendant’s sentence was disproportionate. People v Purdle, ___ Mich App ___, ___ (2024). “‘[T]he defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate.’” Id. at ___ (quoting Posey (On Remand), ___ Mich App at ___). The defendant received a within-guidelines sentence of 680 to 960 months’ incarceration for a second-degree murder conviction. Purdle, ___ Mich App at ___. The Court noted that “[t]he seriousness of his offense [was] not lessened by [defendant’s] age and race when he was sentenced for murdering [the victim].” Id. at ___. The Court further explained that the defendant’s criminal history demonstrated “‘an unwillingness to obey the law after prior encounters with the criminal justice system’ and that in light of his recidivism a greater punishment [was] reasonable.” Id. at ___ (quoting People v Milbourn, 435 Mich 630, 668 (1990).

C.Additional Appellate Considerations for Out-of-Guidelines Sentences

“‘Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality.’” People v Steanhouse (Steanhouse I), 313 Mich App 1, 45-46 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),⁸ quoting People v Milbourn, 435 Mich 630, 659-660 (1990).

“[R]eliance solely on a trial court’s familiarity with the facts of a case and its experience in sentencing cannot ‘effectively combat unjustified disparity’ in sentencing because it construes sentencing review ‘so narrowly as to avoid dealing with disparity altogether[.]’” People v Dixon-Bey, 321 Mich App 490, 530 (2017), quoting Milbourn, 435 Mich at 647.

Appellate courts may take the extent of a departure into account when determining reasonableness, and they must “use the sentencing guidelines as an aid when doing so assists in determining whether a sentence is proportionate.” Dixon-Bey, 321 Mich App at 531.

D.Record on Appeal

When appealing a sentence under MCL 769.34, the appeal record must include:

•an entire record of the sentencing proceedings, MCL 769.34(8)(a);

•the defendant’s presentence investigation report (PSIR), MCL 769.34(8)(b); MCR 7.212(C)(7);⁹ and

•any other reports or documents the sentencing court used in imposing sentence, MCL 769.34(8)(c).

See also People v Callon, 256 Mich App 312, 332 (2003) (noting the defendant failed to perfect his sentencing appeal by failing to file a copy of the PSIR and any other reports or documents relied on by the sentencing court as required by MCL 769.34).

E.Review of Guidelines Scoring

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438, 438 n 18 (2013) (citing People v Osantowski, 481 Mich 103, 111 (2008), and noting that, contrary to several Court of Appeals decisions, “[t]he ‘any evidence’ standard does not govern review of a circuit court’s factual findings for the purposes of assessing points under the sentencing guidelines”) (additional citations omitted). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438, citing People v Babcock, 469 Mich 247, 253 (2003).¹⁰

“[T]he ‘right result—wrong reason’ doctrine . . . [cannot] be employed to allow impermissible appellate fact-finding” in reviewing the propriety of an OV score; “[a] trial court determines the sentencing variables by reference to the record, not [the Court of Appeals].” People v Thompson, 314 Mich App 703, 712 n 5 (2016) (where “the trial court assessed 50 points for OV 7 solely on the basis of sadistic behavior, . . . [i]t would not be appropriate for [the Court of Appeals] to consider whether” the score would nevertheless have been appropriate on the alternative basis that the “defendant’s conduct was designed to substantially increase the victim’s fear and anxiety”) (quotation marks and citations omitted). See also People v Gloster, 499 Mich 199, 209-210 (2016) (holding that the trial court erred as a matter of law in scoring OV 10 solely on the basis of the conduct of the defendant’s co-offenders, and that the Court of Appeals additionally “erred by concluding that the trial court’s scoring of OV 10 was supported by defendant’s own conduct”; “[b]ecause the trial court did not itself find that defendant’s own conduct was predatory in nature, the Court of Appeals failed to review the trial court’s findings for clear error as required by [Hardy, 494 Mich at 438]”) (emphasis added).

F.Unpreserved Sentencing Issues

Unpreserved sentencing errors are reviewed for plain error affecting substantial rights. People v Lockridge, 498 Mich 358, 392 (2015). “To establish entitlement to relief under plain-error review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial rights.” Id. at 392-393. For claims of constitutional error in the scoring of the guidelines under Lockridge, see Section 5.9.

G.Waiver

“A defendant waives appellate review of proportionality when he has agreed to a sentence provided in the plea agreement.” People v Guichelaar, ___ Mich App ___, ___ (2023). This is true even when a defendant does not agree to a specific sentence and instead enters “into an understanding a voluntary plea to be sentenced to a minimum term” within a specified range. Id. at ___. Further, when the sentencing agreement is “not contingent on its relationship to the sentencing guidelines” the defendant effectively agrees “to the proportionality and reasonableness of sentences within his sentencing range even if they [fall] outside of the guidelines calculated at sentencing.” Id. at ___.