D People of Michigan v. Archie Noah Proffitt ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 16, 2023
Plaintiff-Appellee,
v No. 361027
Jackson Circuit Court
ARCHIE NOAH PROFFITT, LC No. 20-003205-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and BOONSTRA and CAMERON, JJ.
GLEICHER, C.J. (dissenting)
Defendant Archie Noah Proffitt pleaded guilty to one count of possession of less than 25
grams of fentanyl, MCL 333.7403(2)(a)(v). His minimum guideline sentencing range was scored
at 0 to 11 months’ incarceration. The trial court more than doubled the top of this range, imposing
a minimum sentence of two years’ imprisonment. I agree that the trial court identified at least one
ground for an upward departure. But because the trial court entirely neglected to justify the extent
of the departure sentence it imposed, I respectfully disagree with my colleagues’ conclusion that
the sentence imposed was proportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1(1990).
When assessing the proportionality of a departure sentence, the advisory sentencing
guidelines provide the “ ‘best “barometer” of where on the continuum from the least to the most
threatening circumstances a given case falls.’ ” People v Dixon-Bey, 321 Mich App 490, 530; 909
NW2d 458 (2017), quoting Milbourn, 435 Mich at 656. A sentencing court may depart from the
guidelines, however, when it determines that “the recommended range under the guidelines is
disproportionate, in either direction, to the seriousness of the crime.” Milbourn, 435 Mich at 657,
For example, a trial court may depart from the guidelines when the guidelines “do not adequately
account for important factors legitimately considered at sentencing.” Id.In addition to identifying reasons for departing from a guidelines sentence, a court must
also justify the extent of the departure. The court must explain “why the sentence imposed is more
proportionate to the offense and the offender than a different sentence would have been.” Dixon-
Bey, 321 Mich App at 525 (quotation marks and citation omitted). In so determining, the
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sentencing court “must explain how the extent of the departure is proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” People v Steanhouse (On
Remand), 322 Mich App 233, 239; 911 NW2d 253 (2017) (Steanhouse III), vacated in part 504
Mich 969 (2019).1 See also Milbourn, 435 Mich at 659-660 (“Even where some departure appears
to be appropriate, the extent of the departure (rather than the fact of the departure itself) may
embody a violation of the principle of proportionality.”).
Here, the sentencing court made no effort to explain why a minimum sentence more than
double the upper guidelines limit was more proportionate than a sentence exceeding the guidelines
by a different amount would have been. Proffitt’s prior record variable (PRV) score was 30 and
his offense variable (OV) score was zero, placing placing him in the D-1 section of the applicable
grid. Even were his PRV level increased by 20 points to reflect the maximum score under PRV 6,
which considers an offender’s relationship with the criminal justice system and accounts for
criminal conduct on probation or while awaiting sentencing,2 the top of the sentencing range would
be 17 months. The court’s reasons for departure did not shed light on why a 24-month sentence
was more proportionate than a 17-month sentence, or any other sentence rooted in the
proportionality principles reflected in the guidelines. I would remand for that articulation.
/s/ Elizabeth L. Gleicher
1
In Steanhouse III, this Court found that only one of the trial court’s reasons for departing from
the sentencing guidelines was valid and that the trial court had not adequately explained the extent
of its departure. People v Steanhouse, 322 Mich App 233, 242-243; 911 NW2d 253 (2017). On
appeal from this Court’s opinion in Steanhouse III, the Supreme Court did not take issue with this
Court’s proposition that a sentencing court must explain the extent of its departure. Our Supreme
Court vacated only that part of our opinion that remanded for resentencing. It found that, “[r]ather
than remanding only for resentencing, the Court of Appeals should have remanded for the trial
court to either resentence or to further articulate its reasons for departure.” People v Steanhouse,
504 Mich 969; 933 NW2d 276 (2019) (Steanhouse IV).
2
The highest score under PRV 6 is 20 points.
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