People v. Sherburne
| Decision Date | 19 August 2021 |
| Docket Number | 351262 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. STEVEN EDWARD SHERBURNE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Shiawassee Circuit Court LC No. 2014-006468-FC
Before: Stephens, P.J., and Borrello and Gleicher, JJ.
This case is before us for a second time for consideration as on leave granted.[1] Steven Sherburne pleaded nolo contendere to second-degree criminal sexual conduct (CSC-2), MCL 750.520c(2)(b) (), for sexually abusing his girlfriend's four-year-old daughter JA. Sherburne had originally been charged with two counts of first-degree criminal sexual conduct (CSC-1), MCL 750.520b(2)(b) (), but the prosecution dropped these counts in exchange for Sherburne's CSC-2 plea.
The trial court sentenced Sherburne to 41 to 63 years' imprisonment-a 22-year upward departure from the top end of the minimum sentencing guidelines range for CSC-2, and at the upper end of the sentencing range for CSC-1 offenders with Sherburne's criminal background. On remand from this Court, the trial court imposed the same sentence. The trial court abused its discretion by violating the principle of proportionality described in People v Milbourn, 453 Mich. 630, 636; 461 N.W.2d 1 (1990). We again vacate Sherburne's sentence and remand for resentencing.
The prosecutor charged Sherburne with sexually abusing two young girls in two separate lower court files. In the first, Sherburne was charged with CSC-2 for touching five-year-old DS in the vaginal area over her underwear. He pled nolo contendere to that charge, the trial court sentenced him within the guidelines range, and we affirmed. See People v Sherburne, unpublished opinion of the Court of Appeals, issued August 14, 2018 (Docket No. 329174), p 1 (Sherburne I). That sentence is not at issue.
In the second matter, Sherburne faced charges for sexually abusing JA on two separate occasions-once in January 2014 and once in March 2014. On one of these occasions, Sherburne touched JA on her genitals. In the other, Sherburne penetrated JA's rectum with his penis and forced her to perform fellatio. The prosecutor charged him with one count of CSC-2 and two counts of CSC-1 in violation of MCL 750.520b(2)(b) ().
Sherburne and the prosecutor struck a plea agreement without a sentencing component. Sherburne agreed to plead nolo contendere to one count of CSC-2 as a fourth habitual offender, MCL 769.12, and the prosecution agreed to drop the CSC-1 charges. Before Sherburne entered his plea, the trial court informed him that it could impose a life sentence because he was a fourth-habitual offender. Sherburne confirmed that he understood and entered a plea of nolo contendere to one count of CSC-2.
Sherburne's minimum sentencing guidelines range for the CSC-2 offense was 58 to 228 months' (4.83 to 19 years') imprisonment. But the trial court departed upward, sentencing him to 492 to 756 months' (41 to 63 years') imprisonment-a 22-year upward departure. Because the sentencing occurred before People v Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015) issued, the trial court articulated what it believed to be substantial and compelling reasons to support this departure. In general, the trial court reasoned that the guidelines did not adequately account for Sherburne's failure to be rehabilitated, the young age of the complainants, and the toll the crimes took on the complainants' wellbeing.[2]
Sherburne sought leave to appeal, and ultimately we vacated his sentence and remanded to the trial court. Although the court had "stated several, well-founded reasons to support departing upward from the sentencing guidelines," we explained, the court had not "adequately connect[ed] those reasons to the particular 22-year departure made in this case." Sherburne I, unpub op at 1. We instructed the trial court to explain on remand why the extent of its departure from the guidelines complied with proportionality principles. Id. at 6.
On remand, the trial court imposed the same 41-to-63-year sentence, offering three reasons for the extent of its departure from the guidelines.
First, the trial court explained that it had used the minimum sentencing ranges for class A offenses (offense grid A), MCL 777.62, as a benchmark to determine a proportionate departure sentence, despite that Sherburne's crime of conviction was a class C offense. While Sherburne had pled guilty to CSC-2, the court found that a preponderance of the evidence supported that he had actually committed two acts of CSC-1. CSC-1 offenses, the trial court reasoned, are calculated using offense grid A. See MCL 777.16y. Had Sherburne's minimum sentencing guidelines been calculated using offense grid A, his guidelines range would have been 170 to 570 months' imprisonment. The trial court "found and fixed a sentence within that range," settling on 492 months (41 years). According to the trial court, this did not deprive Sherburne of the benefit of his plea bargain, because if convicted of CSC-1, Sherburne would have received a mandatory sentence of 25 years, and the court could have imposed two mandatory 25-year sentences running consecutive to each other.
Second, the trial court reasoned that requiring Sherburne to serve a minimum term of 41 years would provide the complainants with "ample opportunity to confront what was done to them," and to "to engage in treatment." Also, "[i]f the parole board wishe[d] to consider [Sherburne's] release, the [complainants] would be adults and able to address the board if they so desire[d]."
Third, the trial court expressed that a 41-year sentence would ensure Sherburne's continued incarceration until he reached an age at which he would not be able to reoffend:
With the minimum range fashioned by the Legislature, [Sherburne] would have been eligible for parole in as few as nineteen (19) years. If paroled at that point he would have been fifty-seven (57) years old and still capable of violating children of this community. At that age, he would have had both the ability and the potential opportunity to perpetuate against other children.
Sherburne again sought leave to appeal with this Court, which we denied. People v Sherburne, unpublished order of the Court of Appeals, entered December 19, 2019 (Docket No. 351262). Our Supreme Court remanded the case for consideration as on leave granted. People v Sherburne, 506 Mich. 916; 948 N.W.2d 578 (2020). Sherburne contends that the trial court's reasoning failed to justify the extent of its departure and that the extent of the court's departure was unreasonable.
We review departure sentences for reasonableness. Lockridge, 498 Mich. at 365, 392. When assessing reasonableness, we consider whether the trial court abused its discretion by violating the principle of proportionality described in People v Milbourn, 453 Mich. 630.
The principle of proportionality requires that a sentence be "proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse, 500 Mich. 453, 474; 902 N.W.2d 327 (2017) (Steanhouse II), quoting Milbourn, 435 Mich. at 636. For that reason, a sentencing court must take "into account the nature of the offense and the background of the offender." Milbourn, 435 Mich. at 651.
Although advisory, when assessing the proportionality of a departure sentence, the guidelines nevertheless provide the "best 'barometer' of where on the continuum from the least to the most threatening circumstances a given case falls." People v Dixon-Bey, 321 Mich.App. 490, 530; 909 N.W.2d 458 (2017), quoting Milbourn, 435 Mich. at 656. Indeed, any sentence within an offender's minimum sentencing guidelines range is presumptively proportionate to the seriousness of the offender's offense and background. People v Posey, ___ Mich.App. ___, ____; ____ N.W.2d (2020) (Docket No. 345491); slip op at 9 (citation omitted).
When a sentencing court departs from the applicable guidelines range, it must explain why its departure sentence is more proportionate to a given offense and offender than a sentence within the guidelines range. Dixon-Bey, 321 Mich.App. at 524-525. In determining whether a departure sentence is proportionate, the following factors are relevant:
(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. [Id. at 525.]
If a sentencing court identifies facts supporting that a departure sentence would be more proportionate than a within-guidelines sentence, it must next determine the appropriate extent of a departure, again within a proportionality frame. In so determining, the sentencing court "must explain how the extent of the departure is proportionate to the seriousness of the circumstances surrounding the offense and the offender." See People v Steanhouse (On Remand), 322 Mich.App. 233, 239; 911 N.W.2d 253 (2017) (Steanhouse III), vacated in part 504 Mich. 969 (2019), [3] citing Milbourn, 435 Mich. at 659-660 ().
The trial court violated the principle of proportionality by entirely disregarding the...
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