PEOPLE OF THE STATE OF MICHIGAN v. DAMETRIUS BENJAMIN POSEY (2023)

Defendant, Dametrius Posey, was convicted of multiple offenses, including, in pertinent part, two counts of assault with intent to commit murder (AWIM), MCL 750.83, and he was sentenced as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 22 to 40 years for the AWIM convictions. The 22-year minimum sentence was well within the minimum sentence guidelines range of 14 years and 3 months to 35 years and 7 months’ imprisonment. We previously affirmed defendant's convictions and sentences. People v Posey, 334 Mich App 338, 344-345; 964 NW2d 862 (2020). Our Supreme Court affirmed in part, vacated in part, reversed in part, and remanded the case to us for a reasonableness review of defendant's within-guidelines AWIM sentences. People v Posey, ___ Mich ___, ___; ___ NW2d ___ (2023) (Docket No. 162373) (lead opinion by Bolden, J., joined by Bernstein, J.); slip op at 3-5, (Cavanagh, J., concurring in part and concurring in the judgment); slip op at 2, and (Welch, J., concurring in part, dissenting in part, and concurring in the judgment); slip op at 1. We affirm defendant's sentences.

The first sentence of MCL 769.34(10) provides that “[i]f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence.” We previously held, in part, that “[b]ecause MCL 769.34(10) precludes appellate review of [defendant's] AWIM sentences and he does not raise a viable constitutional challenge to the sentences, we affirm those sentences.” Posey, 334 Mich App at 359. Supreme Court Justices Bolden, Bernstein, Cavanagh, and Welch agreed that the opening sentence of MCL 769.34(10) is unconstitutional, although Justice Welch offered a different constitutional analysis. Posey, ___ Mich at ___ (Bolden, J.); slip op at 29-30, (Cavanagh, J.); slip op at 1, and (Welch, J.); slip op at 2. Furthermore, the latter three Justices agreed with Justice Bolden’s pronouncements in her lead opinion that “within-guidelines sentences are to be reviewed for reasonableness,” that reasonableness review requires a determination whether a sentence was proportionate, that there is a nonbinding presumption of proportionality, meaning that a within-guidelines sentence is not binding on the Court of Appeals,² that “the defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate,” and that “a within-guidelines sentence may indeed be disproportionate or unreasonable.” Id. at ___ (Bolden, J.); slip op at 36, (Cavanagh, J.); slip op at 1, and (Welch, J.); slip op at 2. The Supreme Court remanded this case to us “for a reasonableness review of defendant's sentence.” Id. at ___; slip op at 5.³

In People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), the Michigan Supreme Court observed:

[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the “principle of proportionality” set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.”

“An appropriate sentence should give consideration to the reformation of the offender, the protection of society, the discipline of the offender, and the deterrence of others from committing the same offense.” People v Boykin, 510 Mich 171, 183; 987 NW2d 58 (2022). With respect to sentencing and the guidelines, the key test is not whether a sentence departs from or adheres to the guidelines range. Steanhouse, 500 Mich at 472. The key test is whether the sentence is proportionate to the seriousness of the matter. Id. In regard to proportionality, the Milbourn Court “observed that the Legislature has determined to visit the stiffest punishment against persons who have demonstrated an unwillingness to obey the law after prior encounters with the criminal justice system.” Milbourn, 435 Mich at 668. “The premise of our system of criminal justice is that, everything else being equal, the more egregious the offense, and the more recidivist the criminal, the greater the punishment.” People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003).

In this case, we hold that the trial court did not abuse its discretion by imposing a 22-year minimum sentence for each of the two AWIM convictions. Defendant committed the crimes after he had been released from prison and while he was on parole for, in part, an earlier unrelated AWIM conviction. Thus, after previously assaulting a person with an actual intent to kill, which, had he been successful, would have made the killing murder, People v Brown, 267 Mich App 141, 147-148, 703 NW2d 230 (2005), defendant again acted with an intent to kill, directing his conduct at the two victims in this case. Moreover, defendant's actions set off a gunfight in a public space outside a supermarket. Defendant is fortunate that he is not sitting in a prison cell serving a life sentence for first-degree murder. We find that the 22-year concurrent minimum sentences for the AWIM convictions serve to (1) protect society from a patently dangerous individual, (2) appropriately discipline defendant for his egregious conduct, and (3) deter others from engaging in similar criminal behavior.

Contrary to defendant's argument, the trial court did consider defendant's rehabilitative potential, astutely concluding that while defendant may have made some attitudinal improvements during his previous prison stint, “it doesn't change the fact that these offenses were committed while he was on parole after having previously served time for a similar offense[.]” On contemplation of the factor concerning reformation of the offender, we deem the fashioned sentences legally sound.

Further, we reject defendant's contention that the 22-year minimum sentences were inherently unreasonable because the trial court did not deviate from those sentences after the guidelines range had been lowered by the court. At defendant's original sentencing, the guidelines range was calculated at 18 years and 9 months to 46 years and 10 months’ imprisonment for the AWIM convictions. And he was sentenced to 22 to 40 years in prison for those convictions. Subsequently, the trial court rescored the guidelines pursuant to an order entered by this Court in People v Posey, unpublished order of the Court of Appeals, entered July 5, 2019 (Docket No. 345491). The trial court then lowered the minimum sentence guidelines range to 14 years and 3 months to 35 years and 7 months’ imprisonment. The trial court, however, imposed the same 22-to-40-year prison terms.

There 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. The guidelines are advisory only. People v Lockridge, 498 Mich 358, 399; 870 NW2d 502 (2015). And, in this case, the trial court determined that a 22-year minimum sentence, which fell within the lower half of the guidelines range, was reasonable regardless of the change in the guidelines range. This reasonable and principled determination did not constitute an abuse of discretion. See People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018). Indeed, given the nature of the offenses and defendant's criminal history, a minimum sentence toward the top end of the guidelines range would not have offended the rule of proportionality. Defendant fails to articulate an argument that overcomes the presumption that the sentences were proportional.

The dissent recognizes but fails to apply defendant's burden to demonstrate that the sentences were unreasonable and disproportionate, instead faulting the trial court for not adequately explaining why it was sentencing defendant to a minimum prison term of 22 years. We respectfully disagree with the dissent that it was necessary for the trial court to provide further elaboration for its sentencing decision. We note that the trial court at the original sentencing hearing emphasized that defendant had committed the same crime for which he was on parole and that he had used a firearm. The court essentially repeated these facts at the subsequent sentencing hearing. This was a powerful reason for imposing a minimum sentence of 22 years’ imprisonment given the patently serious nature of the AWIM offenses. There was no requirement or need for the trial court to expand on the discussion. Moreover, there is nothing in Posey suggesting that a sentencing court needs to expressly explain why a within-guidelines sentence is reasonable and proportionate.

In sum, we once again hold that defendant's sentences were reasonable because they were “proportionate to the seriousness of the circumstances surrounding the offense[s] and the offender.” Posey, 334 Mich App at 358. Reversal is unwarranted.

We affirm.

Jane E. Markey

Mark T. Boonstra

FOOTNOTES

2.   Our dissenting colleague appears to believe that Posey discarded the presumption of proportionality with respect to within-guidelines sentences, noting that “[u]ntil Posey was issued, all within-guidelines sentences were presumed to be reasonable.” But, although the presumption is now nonbinding on this Court under Posey, a presumption of reasonableness, i.e., proportionality, nevertheless continues to exist pursuant to Posey.

3.   We note that as part of our prior extensive analysis, we concluded that “the AWIM sentences were not disproportionate” and “that the 22-year minimum sentence was proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Posey, 334 Mich App at 358. Nevertheless, we will again address the issue as we have been so directed by our Supreme Court.

Markey, J.