People v. Carr

Docket NumberSC 167165,COA 369812
Decision Date24 January 2025
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KYLIE JUNE CARR, Defendant-Appellant.
CourtMichigan Supreme Court

Tuscola CC: 2022-015758-FH

Elizabeth T. Clement, Chief Justice Brian K. Zahra Richard H Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas, Justices

ORDER

On order of the Court, the application for leave to appeal the April 9, 2024 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

Welch J. (dissenting).

Defendant Kylie June Carr pleaded no contest to embezzlement between $1,000 and $20,000, MCL 750.174(5)(c), from a nonprofit charity organization. The trial court departed upward and imposed a sentence that was more than six times the guidelines minimum sentence range. Although defendant's actions were appalling, her sentence aligns with the guidelines range for embezzling more than $250,000 from a vulnerable adult and many crimes involving second-degree criminal sexual conduct, including cases in which the victim was under 13 years old, MCL 750.520c(1)(a). As a result, I would have remanded this matter to the Court of Appeals to examine whether the imposed sentence was too long. I therefore respectfully dissent from the Court's order denying defendant's application for leave to appeal. I also write to explain why I think that this Court should provide more guidance to lower courts to help determine when a sentence is not proportional-i.e., when a sentence is too long.

I. BACKGROUND

According to the presentence investigation report, defendant used the PayPal account and credit card of a nonprofit charity called Christmas for Kids for personal purposes such as purchasing alcohol and groceries, gambling, and buying a dog. Investigators estimated that defendant used more than $20,000 in charity money for personal expenses.

The guidelines minimum sentence range for defendant was 0 to 11 months' imprisonment. The prosecutor requested that the trial court depart upward from the guidelines and sentence defendant to a term "no less than 24 months to 10 years." In making that argument, the prosecutor asserted that defendant's crimes involved at least 64 victims. The prosecutor also asserted that defendant knew what she was doing when she commingled funds and went to the casino on the charity's dime.

The trial court went beyond the prosecutor's request and sentenced defendant to 80 to 120 months' imprisonment (6.67 years to 10 years), which is more than six times the guidelines range. The trial court gave a lengthy explanation as to why the guidelines did not provide "a sufficient range" for the "behavior which has occurred here." First, the trial court asserted that the guidelines did not account for the people who donated to the charity but did not count as victims under Offense Variable 9. Second, the trial court determined that defendant showed "no remorse" and instead "doubl[ed] down on [her] behavior" during her allocution. Finally, the trial court opined that "the potential for rehabilitation here is suspect" given defendant's knowing misbehavior and probable issues with addiction.

II. DISCUSSION

This Court reviews an above-guidelines sentence for abuse of discretion. People v Lampe, 327 Mich.App. 104, 125 (2019). "A sentence is unreasonable-and therefore an abuse of discretion-if the trial court failed to adhere to the principle of proportionality in imposing its sentence on a defendant." Id., citing People v Steanhouse, 500 Mich. 453, 477 (2017). Before imposing a sentence, a sentencing court must consider the four Snow factors. People v Snow, 386 Mich. 586 (1972). "Those four considerations are: (1) 'reformation of the offender'; (2) 'protection of society'; (3) 'disciplining of the wrongdoer'; and (4) 'deterrence of others from committing like offenses.'" People v Boykin, 510 Mich. 171, 188 (2022), quoting Snow, 386 Mich. at 592.

An above-guidelines sentence "must 'be proportionate to the seriousness of the circumstances surrounding the offense and the offender.'" Lampe, 327 Mich.App. at 125, quoting People v Milbourn, 435 Mich. 630, 636 (1990). A sentencing court may impose an above-guidelines sentence if it determines that the recommended range does not match the severity of the crime. Id. To make that determination, a sentencing court may consider:

(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. [People v Walden, 319 Mich.App. 344, 352-353 (2017) (quotation marks and citation omitted).]

In sum, this Court has provided a number of factors that a sentencing court must consider when departing upward. But what happens when a sentencing court considers the aforementioned factors and nevertheless imposes a sentence that is simply too long? In this case, for example, it is undisputed that the trial court considered several of the factors set forth in Lampe, including the seriousness of the offense, factors inadequately considered by the guidelines, and defendant's lack of remorse. See id. Although Milbourn assures appellate review of above-guidelines sentences for proportionality, it seems that as a practical matter, even after a remand for a proportionality review, mere mention of accepted considerations such as the Snow or Walden factors provides complete justification for a sentence, even if the sentence is an extreme and seemingly disproportionate departure from the guidelines range.[1] In other words, our appellate inquiry seems to end once the sentence meets the minimal requirements for procedural soundness. If that is the case, then as a practical matter, we are not conducting a proportionality review. I do not think that such an approach is correct. It seems to me that appellate courts should review both the procedural and substantive aspects of a sentence.

By way of comparison, federal courts examine both a sentence's procedural and substantive reasonableness separately. See Gall v United States, 552 U.S. 38, 51 (2007).[2]A federal sentence is procedurally unreasonable if the sentencing court improperly calculates the guidelines range, treats the guidelines as mandatory, fails to consider the factors set forth in 18 USC 3553(a)(2), selects a sentence based upon clearly erroneous facts, or fails to adequately explain the sentence it imposes. See id.; see also United States v Thomas-Mathews, 81 F4th 530, 541 (CA 6, 2023). A sentence is substantively unreasonable, by contrast, "if it is too long." United States v Lee, 974 F.3d 670, 676 (CA 6, 2020).[3] Federal courts "do not presume that a sentence outside of the guidelines range is reasonable." Id. at 676, citing Gall, 552 U.S. at 51. And a reviewing court must determine whether a sentencing court imposing an above-guidelines sentence provided a "sufficiently compelling" justification for its upward departure. Gall, 552 U.S. at 50. Under federal law, "[m]oreover, a greater variance from the guidelines range requires a more compelling justification." Lee, 974 F.3d at 676-677, citing Gall, 552 U.S. at 50.

Observers frequently criticize federal sentencing as unduly harsh or inconsistent.[4]Nevertheless, federal courts appear more likely than this Court to hold that a procedurally sound sentence is too long. See, e.g., Lee, 974 F.3d at 682; United States v Johnson, 26 F4th 726 (CA 6, 2022); United States v Morris, 71 F4th 475 (CA 6, 2023); United States v Boucher, 937 F.3d 702 (CA 6, 2019).

In this case, the trial court imposed a procedurally reasonable sentence. No party disputes the trial court's guidelines range calculation, and the trial court expressly considered several of the factors set forth in Walden, including the seriousness of the offense, factors inadequately considered by the guidelines, and defendant's lack of remorse. See Walden, 319 Mich.App. at 352-353.

I am skeptical, however, that the sentence is substantively reasonable. Although the trial court explained the need to depart, I am not sure it provided a "sufficiently compelling" justification for imposing a sentence that is more than six times the guidelines range. Gall, 552 U.S. at 50. And I agree with the United States Supreme Court that it is "uncontroversial that a major departure should be supported by a more significant justification than a minor one." Id. Defendant here stole $20,000 from a charity. Defendant's conduct was abhorrent, but her sentence aligns with sentences in cases where a defendant sexually abused a child,[5] or embezzled over $250,000 from a vulnerable adult.[6] And the sentence is much longer than those imposed in other, arguably more severe embezzlement cases.[7]Accordingly, although I do not believe that the trial court abused its discretion by departing from the guidelines, I believe we should review whether the departure was excessive. I therefore would have remanded this case to the Court of Appeals as on leave granted.

I cannot locate a single decision where this Court reversed an above-guidelines sentence as disproportionate on substantive rather than procedural, grounds. Although we rightly afford trial courts great deference, it seems to me that our deference goes too far when a sentence checks all of the procedural boxes but the actual substance that results from that process is not considered. In that sense, our...

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