People of Michigan v. Allan Wayne Shank ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 9, 2018
Plaintiff-Appellee,
v No. 321534
Presque Isle Circuit Court
ALLAN WAYNE SHANK, LC No. 12-092763-FC
Defendant-Appellant.
ON REMAND
Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.
PER CURIAM.
This case returns to us on remand from our Supreme Court “for plenary review of the
defendant’s sentencing claims, including that his sentence was disproportionate under the
standard set forth in People v Milbourn, 435 Mich. 630, 636 [; 461 NW2d 1] (1990).” People v
Shank, ___ Mich ___; 902 NW2d 602 (2017). We affirm the trial court’s upward departure
sentence.
Defendant, Allan Wayne Shank, pleaded guilty to 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 sentenced Shank as a fourth-offense habitual offender, MCL 769.12, to
consecutive sentences of 12 to 25 years’ imprisonment for the felon in possession conviction,
which was an upward departure from the minimum guidelines range of 7 to 46 months, and two
years’ imprisonment for the felony-firearm conviction.
We review the reasonableness of a trial court’s sentencing decision using the abuse of
discretion standard. People v Steanhouse, 500 Mich. 453, 471; 902 NW2d 327 (2017). We apply
the principle of proportionality to determine whether the sentence was reasonable. Id. The trial
court should identify the factors warranting a departure and justifying the extent of the departure.
Milbourn, 435 Mich. at 659-660. Factors relevant to the proportionality of a departure sentence
“include (1) whether the guidelines accurately reflect the seriousness of the crime, (2) factors not
considered by the guidelines, and (3) factors considered by the guidelines but given inadequate
weight.” People v Dixon-Bey, ___ Mich App ___; ___ NW2d ___ (2017) (Docket No. 331499);
slip op at 18-19 (citations omitted). Other factors include “the defendant’s misconduct while in
custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation.”
Id. at 19 n 9 (quotation marks and citation omitted).
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We conclude that the trial court’s upward departure sentence did not violate the principle
of proportionality. Shank facilitated communication between an imprisoned sex offender and an
eight-year-old girl in an attempt to obtain a picture of the girl wearing only a necklace. Police
found pictures of naked young girls in Shank’s home. In addition, Shank previously facilitated
communication between another young girl and an inmate serving a sentence for molesting a
child that led to an additional conviction for the inmate for first-degree child abuse. Shank
admitted to a 20-year history of pedophilia and sexual exploitation of children. Shank violated
probation and parole and continued to harm young children even after spending several years in
prison. These factors support the trial court’s conclusion that Shank was not rehabilitated and
continued to pose a danger to young children. The trial court noted that these factors went
beyond those considered in scoring the offense variables. Consequently, the trial court did not
abuse its discretion when it imposed the upward departure sentence.
Shank argues that the trial court improperly considered the sexual misconduct underlying
the charge that the prosecution dismissed as part of the plea deal. We disagree. This case is
distinguishable from People v McGraw, 484 Mich. 120, 133-134; 771 NW2d 655 (2009), because
the trial court in this case considered Shank’s history for the purpose of imposing an upward
departure, not for the purpose of assessing an offense-specific variable. The trial court did not
abuse its discretion when it evaluated the full context of Shank’s conduct surrounding the
convictions because a departure sentence reflects considerations beyond those accounted for by
the offense variables.
We affirm.
/s/ Stephen L. Borrello
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
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