People of Michigan v. Kesia Dionna Malone ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
November 8, 2019 Bridget M. McCormack,
Chief Justice
159279 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 159279
COA: 333852
Kent CC: 15-011206-FH
KESIA DIONNA MALONE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 17, 2019
judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
VACATE the sentence of the Kent Circuit Court, and REMAND this case to the trial
court for resentencing. The trial court did not justify its sentence with appropriate
reasons. Sentencing courts must consult the applicable guidelines range and take it into
account when imposing a sentence and justify the sentence imposed, see People v
Lockridge, 498 Mich. 358, 392 (2015), but nothing in the record suggests the trial court
considered the defendant’s applicable range.
We do not retain jurisdiction.
MARKMAN, J., (dissenting).
I respectfully dissent from this Court’s order peremptorily reversing the judgment
of the Court of Appeals and remanding Kesia Dionna Malone’s case for resentencing.
The trial court, in support of imposing a sentence tied to the statutory maximum for first-
degree retail fraud, cited Malone’s criminal history and the fact that she was serving two
probation sentences when she committed her instant offense. Malone’s criminal record--
21 convictions, 11 of which are for various degrees of retail fraud-- speaks for itself.
That shortly before her instant offense Malone received lenient sentences on a pair of
convictions for first-degree retail fraud as a fourth-offense habitual offender and that she
was on probation at the time of her instant offense also speaks for itself. Additionally,
although not relied upon by the trial court, the then 35-year-old Malone involved a 16-
year-old in her theft of over a thousand dollars’ worth of alcohol. Considering Malone’s
offense history and the facts of her instant offense, Malone fits exactly the profile of an
offender the Legislature likely envisioned in setting the maximum term of imprisonment
for the offense of first-degree retail fraud. Although the trial court should have expressly
2
laid out and assessed defendant’s guidelines minimum sentence range, defendant failed to
object, thus subjecting the error to “plain error” review. People v Carines, 460 Mich. 750,
763-764 (1999). And because of defendant’s record of extreme recidivism and the need
to better protect the public by her incapacitation, defendant simply cannot satisfy the
prejudice prong of plain-error review, and I would not expend further judicial resources
by remanding this case for resentencing. But although I dissent from this Court’s order, I
do encourage the trial court on remand to engage in a more focused and specific
explanation of its sentence.
ZAHRA, J., joins the statement of MARKMAN, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 8, 2019
a1105
Clerk