People v. Hudson
| Decision Date | 24 March 2022 |
| Docket Number | 355863 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KYLAND ANDREW HUDSON, Defendant-Appellant. |
UNPUBLISHED
Calhoun Circuit Court LC No. 2017-001326-FC
Before: Cavanagh, P.J., and Markey and Servitto, JJ.
Defendant appeals as of right the sentence imposed on remand for his jury trial convictions of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c), production of child sexually abusive material, MCL 750.145c(2), and second-degree child abuse, MCL 750.136b(3). Given the trial court's failure to justify the extent of the particular departure sentence imposed, we remand for a second resentencing before the same judge.
Defendant was charged with, and ultimately convicted of, the crimes indicated above. The convictions stem from the discovery of five pornographic videos depicting defendant sexually assaulting his minor stepdaughter, while she was unconscious on defendant's cell phone. On December 4, 2017, the trial court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to 360 to 720 months' imprisonment for the CSC-I conviction, 118 to 360 months' imprisonment for the production of child sexually abusive material conviction, and 107 to 180 months' imprisonment for the second-degree child abuse conviction. The minimum sentence imposed with respect to defendant's CSC-I conviction represented an upward departure of 79 months over the top of the guidelines range.
Defendant thereafter appealed his convictions and sentence[1] to this Court. See People v Hudson, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2019 (Docket No. 342001). This Court affirmed defendant's convictions but remanded the case for resentencing, concluding that, while the trial court articulated three legitimate grounds for imposing an above-guidelines sentence, it erred by failing "to explain on the record its rationale for departing by 79 months . . . [or] reference the guidelines range when . . . d[oing] so." Hudson, unpub op at 9. The majority also faulted the trial court for "not explaining how or why the guidelines inadequately accounted for defendant's conduct . . . [or] how the selected sentence was more proportionate than a sentence falling within the minimum sentencing guidelines range would have been." Id.
Defendant was resentenced before the same judge on November 16, 2020.[2] The trial court stated at resentencing that, "at the [initial] sentencing, [it] stated on the record what [it] believe[s] to be a sufficient basis to exceed the guidelines." The trial court then explicitly adopted those prior statements and arguments as well as defendant's prior presentence investigation report (PSIR), elaborated somewhat on its reasoning, reviewed the updated PSIR, and thereafter imposed the same sentences. This appeal followed.
Defendant asserts that he is entitled to a second resentencing because the trial court improperly relied on inaccurate information in imposing his sentence. We disagree.
Because defendant did not properly preserve this issue in the trial court, we apply plain error review. See Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227; 964 N.W.2d 809 (2020) (); see also People v Kimble, 470 Mich. 305, 312; 684 N.W.2d 669 (2004) (). Under plain error review, the defendant must show that Id. (omission in original) (quotation marks and citation omitted). In addition, "[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (quotation marks and citation omitted).
"A defendant is entitled to be sentenced by a trial court on the basis of accurate information." People v Francisco, 474 Mich. 82, 88; 711 N.W.2d 44 (2006). If a sentence is based on inaccurate information, it is invalid. Id. The defendant bears the burden of proving that the information is inaccurate. See People v Odom, 327 Mich.App. 297, 314; 933 N.W.2d 719 (2019).
Defendant argues that his second sentence was based on inaccurate information because the trial court mistakenly stated at resentencing that defendant had used the victim's own medication against her, even though the medications at issue actually belonged to defendant. Defendant specifically highlights the trial court's reference to "her medication" and statement that defendant "used [the victim's] medication against her when it was supposed to help her."
Undisputed testimony established that the medications were indeed prescribed to defendant, not the victim. Specifically, defendant stated that he "g[ot] [the victim] one of my medications and gave it to her" and that "[the victim] had been taking some of my medication." (Emphasis added.) It was thus a clear mistake for the trial court to find during resentencing that defendant was using the victim's-instead of his own-medication. However, defendant has not met his burden under plain error review to show that he was prejudiced by this inaccurate information. Having misstated the applicable standard of review, defendant failed to mention prejudice altogether. But without additional evidence of prejudice, this Court may not remand for resentencing under plain error review. Moreover, we fail to see how the stated inaccurate information would establish prejudice. Drugging someone with one's own prescriptions is no less serious-indeed, it could be more serious-than doing so with a victim's own medications. In short, the harmless mistake of stating to whom the medication belonged did not seriously affect the fairness, integrity, or reputation of the proceedings.
Defendant next argues that the trial court erred at resentencing by failing to specifically justify the extent of the above-guidelines sentence. We agree.
A sentence above the guidelines range is reviewed for reasonableness. People v Dixon-Bey, 321 Mich.App. 490, 520; 909 N.W.2d 458 (2017). This Court applies an abuse of discretion standard when reviewing the reasonableness of a sentence. Id. Specifically, this Court must ask "whether the trial court abused its discretion by violating the principle of proportionality" set forth in People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990) in its imposition of sentence. People v Steanhouse, 500 Mich. 453, 471; 902 N.W.2d 327 (2017).
In People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), our Supreme Court held that Michigan's sentencing guidelines are merely advisory in a trial court's sentencing determination. However, "[the guidelines] remain a highly relevant consideration in a trial court's exercise of sentencing discretion." Id. at 391. Accordingly, while a trial court no longer needs to give a "substantial and compelling reason" to depart from the guidelines range, as was required before Lockridge, it still must "continue to consult the applicable guidelines range and take it into account when imposing a sentence." Id. at 391-392. Trial courts must also justify the sentence given to facilitate appellate review. Id. at 392.
A sentence must also comport with the principle of proportionality. See Dixon-Bey, 321 Mich.App. at 520-521. This requires the trial court to "take into account the nature of the offense and the background of the offender" to ensure "that the sentence[] . . . [is] proportionate to the seriousness of the matter[]." Milbourn, 435 Mich. at 651. The trial court must provide a sufficient explanation for "why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." Dixon-Bey, 321 Mich.App. at 525, quoting People v Smith, 482 Mich. 292, 311; 754 N.W.2d 284 (2008).
In determining whether an above-guidelines sentence is more proportionate than a sentence within the guidelines range, courts consider "(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." Dixon-Bey, 321 Mich.App. at 525 (citations omitted). Relevant factors not considered by the guidelines include, among other things, "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 Lampe, 327 Mich.App. 104, 126; 933 N.W.2d 314 (2019). [4]
At defendant's resentencing, the trial court adopted the PSIR, finding that the guidelines were appropriately scored, but deemed the guidelines inadequate given the nature of defendant's conduct. In addition to adopting its reasoning from the initial sentencing, the trial court specifically stressed defendant's grooming of the victim, his use of prescription medications in perpetrating the assault, and the impact on the victim due to the assault having been recorded as factors not adequately considered by the guidelines, and thus, reasons to depart from the recommended guidelines range. The trial court stated:
[W]hen I look at all of the factors here, all the guideline...
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