People of Michigan v. Laymar Pierre Agee ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 28, 2017
Plaintiff-Appellee,
v No. 333486
Wayne Circuit Court
LAYMAR PIERRE AGEE, LC No. 13-009057-01-FC
Defendant-Appellant.
Before: METER, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant was convicted following a jury trial of three counts of armed robbery, MCL
750.529, and one count each of assault with intent to do great bodily harm (AWIGBH), MCL
750.84, carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court initially sentenced defendant to 75 years’ to 75 years’ and one
day imprisonment for each of the armed robbery convictions and the AWIGBH conviction, 10 to
15 years’ imprisonment each for the carrying a concealed weapon and felon in possession of a
firearm, and two years’ imprisonment for the felony-firearm conviction. Defendant appealed his
convictions and his sentences and this Court affirmed his convictions, but remanded for a Crosby
hearing after determining that the court scored offense variable (OV) 19 based on facts that were
not submitted to a jury. People v Agee, unpublished opinion per curiam of the Court of Appeals,
issued December 15, 2015 (Docket No. 322687).
On remand, defendant desired to be resentenced. At the resentencing, the trial court
reduced defendant’s original sentencing guidelines of 270 months to 900 months to 135 months
to 450 months (11.25 years to 37.5 years) for the sentencing offense (i.e. armed robbery).
Defendant was sentenced as a habitual offender, fourth offense. MCL 769.12. The trial court
resentenced defendant consistent with the sentencing guidelines to 35 to 45 years’ for each of the
armed robbery convictions, 10 to 20 years’ for the AWIGBH conviction, and 5 to 10 years’ for
both the CCW and felon in possession of a firearm convictions. The court also sentenced
defendant to a consecutive 2 years’ imprisonment for felony-firearm, with credit for 650 days
served. Defendant appeals by right. For the reasons set forth in this opinion, we affirm.
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On appeal, defendant argues that he is entitled to resentencing because the 35-year
minimum sentence was disproportionate in light of People v Lockridge, 498 Mich. 358; 870
NW2d 502 (2015), and People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).
Whether defendant’s sentence is subject to a proportionality review under Lockridge and
Milbourn necessarily involves a question of law; questions of law are reviewed de novo. People
v Daoud, 462 Mich. 621, 629-630; 614 N2d 152 (2000).
In Lockridge, our Supreme Court “applying binding United States Supreme Court
precedent, held that Michigan’s sentencing guidelines scheme violates the Sixth Amendment of
the United States Constitution. To remedy the constitutional violation, we held that the
guidelines would thereafter be merely advisory rather than mandatory.” People v Steanhouse,
500 Mich. 453, 459; ___NW2d___(2017). The Lockridge Court also held that, although the
guidelines were merely advisory, a sentencing court was still required to “determine the
applicable guidelines range and take it into account when imposing a sentence.” Lockridge, 498
Mich. at 365. Furthermore, “departure sentences post-Lockridge would be reviewed for
reasonableness. . . .” Steanhouse, 500 Mich. at 462.
Subsequently, in Steanhouse, 500 Mich. at 459-460, the Court held that when a departure
sentence is reviewed for reasonableness, the procedure set forth in Milbourn, 435 Mich. at 630,
governs an appellate court’s determination of whether a sentence was “reasonable.” Milbourn
“requires sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich. at 460, citing
Milbourn 435 Mich. at 636 (quotation marks omitted).
In this case, the trial court imposed a minimum sentence of 35 years (420 months) for the
sentencing offense. This sentence fell within the sentencing guidelines range of 135 to 450
months. Because defendant’s sentence did not depart from the guidelines, reasonableness review
under Lockridge is not warranted. Instead, a sentence that falls within the guidelines
recommended range is presumptively proportional, and pursuant to MCL 769.34(10), “[w]hen a
trial court does not depart from the recommended minimum sentencing range, the minimum
sentence must be affirmed unless there was an error in scoring or the trial court relied on
inaccurate information.” People v Schrauben, 314 Mich. App. 181, 196; 886 NW2d 173 (2016),
citing MCL 769.34(10). Here, because defendant does not dispute that his sentence was within
the recommended minimum guidelines, and he does not contend that the trial court relied on
inaccurate information or erred in scoring the guidelines, this Court must affirm the sentence. Id.
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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