People of Michigan v. Harold Gene Hampshire ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 17, 2016
Plaintiff-Appellee,
v No. 325155
Barry Circuit Court
HAROLD GENE HAMPSHIRE, LC No. 14-000738-FH
Defendant-Appellant.
Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
Defendant, Harold Gene Hampshire, appeals by leave granted1 his sentence for his
conviction of second-degree criminal sexual conduct, MCL 750.520c(2)(b), which resulted from
his no-contest plea to a charge that he molested a nine-year-old girl. The sentencing guidelines
recommended a sentence of 0 to 17 months’ imprisonment, but the trial court sentenced
Hampshire to serve 84 to 180 months’ imprisonment on the basis of his extensive criminal
history, which included indecent exposure convictions. The trial court reasoned that the
sentencing guidelines did not account for his history because those convictions occurred 10 years
prior to the previous offense. See MCL 777.50. We remand for further proceedings.
Defendant’s appeal, filed before the Michigan Supreme Court decided People v
Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), contends that his sentence is invalid because
the trial court did not articulate substantial and compelling reasons to depart from the sentencing
guidelines. In Lockridge, the Court struck the requirement that a sentencing court must justify a
departure by articulating substantial and compelling reasons. Id. at 392. Accordingly, the
majority of defendant’s argument on appeal is no longer relevant.
However, defendant also contends that his sentence was disproportionate. In People v
Steanhouse, ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 21-24, this Court held
that the reasonableness of a sentence is determined by using the “principle of proportionality”
standard set forth in People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). The Steanhouse
1
People v Hampshire, unpublished order of the Court of Appeals, entered February 4, 2015
(Docket No. 325155).
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Court adopted the Crosby2 remand procedure for cases in which the trial court departed from the
sentencing guidelines because “the trial court was unaware of and not expressly bound by [the]
reasonableness standard rooted in the Milbourn principle of proportionality at the time of
sentencing.” Id. Thus, the Steanhouse Court remanded the case to the trial court to follow the
procedure explained in Lockridge:
[O]n a Crosby remand, a trial court should first allow a defendant an opportunity
to inform the court that he or she will not seek resentencing. If notification is not
received in a timely manner, the court (1) should obtain the views of counsel in
some form, (2) may but is not required to hold a hearing on the matter, and (3)
need not have the defendant present when it decides whether to resentence the
defendant, but (4) must have the defendant present, as required by [MCR 6.425],
if it decides to resentence the defendant. Further, in determining whether the
court would have imposed a materially different sentence but for the
unconstitutional constraint, the court should consider only the circumstances
existing at the time of the original sentence. [Lockridge, 498 Mich. at 398
(quotation marks and citations omitted).]3
In this case, the trial court departed upward from the sentencing guidelines when
sentencing defendant, and Lockridge was not yet decided. Accordingly, the trial court did not
have the benefit of Lockridge when it sentenced defendant, and it has not explained the
proportionality of its sentence on the record. Accordingly, we must remand for further
proceedings.
We affirm defendant’s conviction, but we remand for the trial court to determine whether
it would have imposed a materially different sentence under the procedure described in
Lockridge and Steanhouse. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Jane E. Markey
/s/ Christopher M. Murray
2
United States v Crosby, 397 F3d 103 (CA 2, 2005).
3
Judge O’CONNELL notes that he disagrees with this standard for the reasons stated in his dissent
in People v Shank, ___ Mich App ___; ___ NW2d ___ (2015).
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