In People v. Shank, No. 321534, the Michigan Court of Appeals remanded a sentencing order in light of its recent decision in People v. Steanhouse. In Steanhouse, which we blogged about here, the Court of Appeals held that trial courts should employ a “principle of proportionality” test when departing from an advisory guideline range. This new test requires that sentences be proportionate to the seriousness of the circumstances surrounding the offense and the offender.
Here, Shank plead guilty to felon in possession and felony-firearm, which the sentencing guidelines recommended a minimum sentence of 7 to 46 months’ imprisonment. Despite this recommendation, the trial court sentenced Defendant to 12 to 25 years’ imprisonment. In considering Defendant’s appeal, the Court of Appeals remanded the sentencing. It reasoned that, during Defendant’s sentencing, the trial court did not have the guidance recently provided by the Michigan Supreme Court in Lockridge or by the Court of Appeals in Steanhouse. Instead, the trial court sentenced Defendant under the “substantial and compelling reason standard,” overturned by Lockridge, rather than the “principle of proportionality” test articulated in Steanhouse. As a result, the Court of Appeals issued a Crosby remand so that the trial court can decide whether the application of Lockridge or Steanhouse would result in a different sentence. It noted that Defendant may decide to forego resentencing, as it could result in a more severe sentence.
Judge O’Connell dissented with the Court’s result based solely on Lockridge. He argued that, as Defendant did not properly challenge the scoring of his offense variables, the Court’s review is only for plain error affecting Defendant’s substantial rights. Because Lockridge stated that a defendant cannot show plain error when the trial court departs upward from a recommended minimum sentence, the upward departure in Defendant’s case necessarily cannot be plain error. As such, Judge O’Connell stated that resentencing is not proper per stare decisis.
