People of Michigan v. Hannah Jalisa Allen ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 19, 2023
Plaintiff-Appellee,
V No. 359283
Berrien Circuit Court
HANNAH JALISA ALLEN, LC No. 2020-003716-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.
PER CURIAM.
Defendant pleaded guilty to making a terrorist threat, MCL 750.543m. The trial court
imposed a sentence of 10 to 20 years’ imprisonment. Defendant appeals by leave granted1 the
judgment of sentence. We affirm.
Pursuant to the guilty plea, defendant admitted that she sent multiple text messages to her
employer’s human resources manager in which she threatened to shoot and kill her coworkers at
the company’s plant. With respect to the scoring of the guidelines, the crime of making a terrorist
threat is a Class B felony. See MCL 777.16bb. Defendant’s total prior-record-variable (PRV)
score was 45 points and her total offense-variable (OV) score was 40 points, which had been 45
points until the trial court reduced the score for OV 16 by five points on defendant’s motion for
resentencing. Defendant’s minimum sentence guidelines range was set at 72 to 120 months’
imprisonment. See MCL 777.63 (Class B grid; OV level IV and PRV level D). The trial court
imposed a minimum sentence at the very top end of the guidelines range, 120 months (ten years).
Defendant first argues that the trial court erred by assessing five points for OV 16, which
concerns property that is “obtained, damaged, lost, or destroyed” during the commission of a
crime. MCL 777.46(1). The assessment was based on business losses valued at between $1,000
and $20,000 that were caused by employees being allowed to remain home during the threats of
1
People v Allen, unpublished order of the Court of Appeals, entered January 25, 2022 (Docket
No. 359283).
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violence. See MCL 777.46(1)(e). We decline to address the scoring of OV 16. Assuming that
the trial court erred by assessing five points for OV 16 rather than zero points as urged by
defendant, resentencing is not required because a reduction in the total OV score by five points
would not alter the appropriate guidelines range considering that defendant would remain at OV
level IV. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring
error does not alter the appropriate guidelines range, resentencing is not required.”); MCL 777.63.
Defendant next argues that her sentence was invalid because it was based on two
misconceptions of law. A sentence is invalid when it is based on a misconception of law. People
v Comer, 500 Mich 278, 292 n 35; 901 NW2d 553 (2017). In this case, defendant first asserts that
her sentence was invalid because the trial court erroneously stated that it was required to impose a
minimum sentence at the top end of the guidelines. At the sentencing hearing, the trial court
discussed the rationale for its sentence. The court remarked, “In th[is] particular case I do believe
the sentencing guideline range does call for a sentence at the maximum and I am going to impose
that.” Defendant maintains that the court’s statement revealed that the court failed to realize or
understand that it retained discretion to impose a minimum sentence anywhere within the
guidelines range, thereby demonstrating a misconception of law. At the hearing on defendant’s
motion for resentencing, the trial court explained as follows:
The second issue is with respect to why I sentenced her at the high end of
the guidelines. I might have been inarticulate when I said that, but I clearly
understood that the sentencing guideline range did not dictate or mandate that I had
to sentence her at the high end. I fully understood that. What I was indicating, as I
said, maybe inarticulately, was that I believed based upon the facts of this case, as
well as her prior record, those are the things that dictated sentencing at the higher
end of the guidelines.
The trial court’s explanation was consistent with its statement at sentencing. The court
made the original statement quoted above in the context of providing its reasoning for the sentence,
emphasizing the seriousness of the crime and defendant’s criminal history. The trial court
presumably would not have explained the reasons for the sentence if it believed that it was legally
obligated to issue a particular minimum sentence at the top end of the guidelines. Additionally,
the trial court began the statement with a reference to this “particular case,” noting that the
guidelines provided a “range” for the minimum sentence. Especially in light of the trial court’s
clarification at the hearing on the motion for resentencing, we find it patently clear that the trial
court was not operating on a misconception of law; it fully appreciated that it had the discretion to
impose a minimum sentence that was not at the top end of the guidelines range.
Defendant also argues that the trial court sentenced defendant under a misconception of
law when it failed to mention “rehabilitation” as one of the goals of sentencing. According to the
transcript of the sentencing hearing, the trial court commented that “the purpose of my sentence is
punishment, protection of the community, deterrent, reparation and restitution.” This Court has
stated that “the factors considered in imposing sentence should be balanced with the following
objectives: (1) reformation of the offender, (2) protection of society, (3) punishment of the
offender, and (4) deterrence of others from committing like offenses.” People v Sabin, 242 Mich
App 656, 661-662; 620 NW2d 19 (2000) (quotation marks and citations omitted). The Court,
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however, further noted that a sentencing court is not required to “expressly mention each goal of
sentencing when imposing sentence.” Id. at 662 (quotation marks and citation omitted).
Defendant argues that the trial court’s omission of “reformation” from its recitation of the
purposes for sentencing indicated that it was acting on the basis of a local sentencing policy. But
at the hearing on the motion for resentencing, the trial court explained its apparent failure to
mention rehabilitation:
[W]ith respect to the . . . basis for the sentence, the purpose of my
sentencing, in checking in the video I did not say reparations. I said reformation
and the transcriptionist typed it wrong, so it’s just an error. Reformation is a proper
purpose of sentencing. It encompasses rehabilitation and that’s what I always say,
and so there was just a simple error in the transcription[.]
The trial court therefore, on the record, included reformation of the offender, or, synonymously,
rehabilitation, when listing the purposes of sentencing. Further, defendant offers no reason to
doubt the court’s explanation of a transcription error. In sum, we conclude that defendant has not
demonstrated that the trial court sentenced her under a misconception of law; the sentence was
valid.
Finally, defendant argues that the sentence imposed by the trial court was disproportionate
to the circumstances surrounding the offense and the offender and that even though the sentence
fell within the guidelines range—rendering the sentence presumptively proportionate—unusual
circumstances existed that overcame the presumption. The unusual circumstances, according to
defendant, consisted of two similar Michigan convictions that were punished without jail time as
revealed in newspaper articles, along with the court’s own previous encounter with violence in the
courthouse that purportedly left it oversensitive to threats of violence. MCL 769.34(10) provides
as follows:
If 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. A party shall not raise on appeal an
issue challenging the scoring of the sentencing guidelines or challenging the
accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines sentence range unless the party has raised the issue at
sentencing, in a proper motion for resentencing, or in a proper motion to remand
filed in the court of appeals.
“When 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);
see also People v Posey, 334 Mich App 338, 356; 964 NW2d 862 (2020). In this case, we have
disposed of the alleged scoring error and there is no claim of reliance on inaccurate information.
Accordingly, the 10-year minimum sentence would generally not be subject to appellate review.
In Posey, 334 Mich App at 357-358, this Court explained:
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MCL 769.34(10) does not and cannot preclude constitutional appellate
challenges to a sentence, e.g., an argument that a sentence constitutes cruel and
unusual punishment. See People v Powell, 278 Mich App 318, 323; 750 NW2d 607(2008) (stating that MCL 769.34[10]’s limitation on review does not apply to
claims of constitutional error); see also People v Conley, 270 Mich App 301, 316;
715 NW2d 377 (2006) (“It is axiomatic that a statutory provision, such as MCL
769.34[10], cannot authorize action in violation of the federal or state
constitutions.”).
We note that grossly disproportionate sentences may constitute cruel and
unusual punishment. People v Bullock, 440 Mich 15, 32; 485 NW2d 866 (1992).
However, there is a distinction between “proportionality” as it relates to the
constitutional protection against cruel and unusual punishment, and
“proportionality” as it relates to reasonableness review of a sentence, which is not
constitutional in nature. Id. at 34 n 17 (“Because the similarity in terminology may
create confusion, we note that the constitutional concept of ‘proportionality’ under
Const 1963, art 1, § 16 [cruel or unusual punishment prohibition] is distinct from
the nonconstitutional ‘principle of proportionality’ discussed in Milbourn,[2]
although the concepts share common roots.”). A sentence within the guidelines
range is presumptively proportionate, and a proportionate sentence is not cruel or
unusual punishment. Powell, 278 Mich App at 318. A defendant can only overcome
that presumption by presenting unusual circumstances that would render a
presumptively proportionate sentence disproportionate. People v Bowling, 299
Mich App 552, 558; 830 NW2d 800 (2013). [Ellipses omitted; alteration in
original.]
In this case, defendant has not framed her argument in constitutional terms. There is no
assertion that the 10-year minimum sentence constituted cruel or unusual punishment.
Accordingly, MCL 769.34(10) dictates that we affirm the sentence. Moreover, even upon
substantive consideration, we conclude that defendant’s arguments about the trial court’s
purported trauma from courtroom violence and about the two other court cases in Michigan, aside
from being evidentially flawed, simply do not establish unusual circumstances attendant to this
particular case. The 10-year minimum sentence was proportionate and not cruel or unusual.
We affirm.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ James Robert Redford
2
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990) (The “principle of proportionality .
. . requires sentences imposed by the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.”).
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