O People of Michigan v. Maurice Deshaun McNeely ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 15, 2024
Plaintiff-Appellee,
v No. 352830
Wayne Circuit Court
MAURICE DESHAUN MCNEELY, LC No. 19-006172-01-FC
Defendant-Appellant.
ON REMAND
Before: CAVANAGH, P.J., and SERVITTO and M. J. KELLY, JJ.
PER CURIAM.
Defendant was convicted of second-degree murder, MCL 750.317, felon in possession of
a firearm, MCL 750.224f(1), and two counts of possession of a firearm during the commission of
a felony, second offense, MCL 750.227b, arising from a fatal shooting that occurred in 2019. The
trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent
prison terms of 65 to 100 years for the murder conviction, and 2 to 10 years for the felon-in-
possession conviction, to be served consecutive to two five-year terms of imprisonment for the
felony-firearm convictions. Defendant raised several issues on appeal, challenging the
effectiveness of his counsel and his sentence. We affirmed. People v McNeely, unpublished per
curiam opinion of the Court of Appeals, issued December 16, 2021 (Docket No. 352830).
Defendant sought leave to appeal from the Michigan Supreme Court in January 2022, and
the matter was held in abeyance. People v McNeely, 974 NW2d 197 (2022). Ultimately, in
November 2023, in lieu of granting leave to appeal, the Supreme Court vacated our judgment “to
the extent that it was inconsistent with” its recent decision in People v Posey, 512 Mich 317; ___
NW3d ___ (2023), but denied leave to appeal in “all other respects.” People v McNeely, 997
NW2d 186 (2023). It appears that the relevant issue addressed in both this case and in Posey
pertained to a sentencing issue; particularly, whether a within-guidelines sentence may be
reviewed for reasonableness. In this case, defendant had argued that his 65-year (780 months)
minimum sentence was disproportionate and unreasonable. This Court held that because the trial
-1-
court rendered a sentence within the applicable guidelines range, which was 315 to 787 months,
“his sentence may not be reviewed for reasonableness.” McNeely, unpub op at 11-12.
In Posey, however, the Michigan Supreme Court held that regardless of the sentencing
regime in place at the time of sentencing, i.e., judicial sentencing guidelines or legislative
sentencing guidelines, the Supreme Court “has consistently required sentencing decisions to be
based on the principle of proportionality” meaning that “appellate courts must review all sentences
for reasonableness, which requires the reviewing court to consider whether the sentence is
proportionate to the seriousness of the matter.” Posey, 512 Mich at ___; slip op at 29. The Posey
Court held that the proportionality test to be applied is outlined in People v Milbourn, 435 Mich
630, 636; 461 NW2d 1 (1990). Id. at 32-33. The Posey Court concluded that “the portion of MCL
769.34(10) that requires appellate affirmation of within-guidelines sentences that are based on
accurate information without scoring errors is unconstitutional,” and therefore, severed. Id. at 29-
30, 37. However, the Posey Court held, “the defendant bears the burden of demonstrating that
their within-guidelines sentence is unreasonable or disproportionate . . . .” Posey, 512 Mich ___;
slip op at 36. In other words, a within-guidelines sentence is presumed to be proportionate, but
the defendant may overcome that presumption; thus, a within-guidelines sentence is not insulated
from appellate review. Id. Accordingly, in Posey, because this Court had affirmed the defendant’s
within-guidelines sentence on the ground that review was precluded by MCL 769.34(10), the
Supreme Court reversed that part of this Court’s opinion addressing sentencing and remanded for
review of the within-guidelines sentence for reasonableness, applying a “nonbinding rebuttable
presumption of proportionality.” Id. at 37. On remand of this case, we apparently are to do the
same because we, too, affirmed defendant’s sentence on the ground that review of his within-
guidelines sentence was precluded by MCL 769.34(10). McNeely, unpub op at 11-12.
As discussed above, the proportionality test to be applied in appellate review of sentences
for reasonableness requires that sentences “be proportionate to the seriousness of the
circumstances surrounding the offense and the offender,” as stated in Milbourn, 435 Mich at 636.
The Milbourn Court explained:
When the legislative scheme for criminal sentencing is viewed across the
spectrum of crimes from misdemeanor traffic violations to cold-blooded murders,
two aspects are immediately clear. First, the Legislature has endeavored to provide
the most severe punishments for those who commit the most serious crimes. The
crime of murder, for example, is punishable by a longer term than is the lesser
included crime of assault. Second, offenders with prior criminal records are
likewise subject to harsher punishment than those with no prior convictions, as
reflected in the general and specific habitual offender provisions of the penal
statutes. These two elements combine to form what might be called the “principle
of proportionality.” [Id. at 650.]
In People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003), our Supreme Court stated the
principle more simply: “The premise of our system of criminal justice is that, everything else being
equal, the more egregious the offense, and the more recidivist the criminal, the greater the
punishment.” More recently, in People v Boykin, 510 Mich 171, 183; 987 NW2d 58 (2022), our
Supreme Court again explained that “[a]n appropriate sentence should give consideration to the
reformation of the offender, the protection of society, the discipline of the offender, and the
-2-
deterrence of others from committing the same offense.” But, that Court cautioned, “these are not
the only relevant sentencing criteria and trial courts are not required to consider each of these
factors when imposing a sentence.” Id. at 183-184. In other words, there is no specific formula
to follow when fashioning an appropriate sentence but the sentence must “be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich
at 636; see also People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017).
In this case, we had set forth the facts underlying defendant’s convictions as follows:
Defendant’s convictions arise from the fatal shooting of Martis James at a
street party in Detroit late on July 4, 2019. At trial, the prosecutor argued that, after
arriving at the party, defendant got into a car with friends. At one point, the victim
and another man were involved in a confrontation that ended soon after it started.
Afterward, defendant left the car, approached the victim, and made a comment to
him. The victim responded by remarking that he did not know defendant. At that
point, defendant pulled a gun from his pocket, shot the victim once in the chest, and
then fled the scene. Defendant was later arrested in West Virginia. [McNeely,
unpub op at 1.]
During sentencing, the trial court noted that these crimes were committed while defendant was on
parole, after having been recently released from prison on previous convictions of assault with
intent to murder and felony firearm arising from defendant having shot someone else. The court
noted that the victim in this case, Martis James, was shot for no apparent reason and, in fact,
defendant did not even know the man. This was purely an act of senseless violence. The record
showed that this fatal shooting occurred in front of multiple people—who also could have been
injured, including members of the victim’s family. The trial court noted that defendant had an
extensive criminal record and a history of violence which necessitated that the community be
protected from defendant and that a severe punishment was warranted.
Defendant argues on appeal that his sentence was disproportionate and unreasonable
because his 65-year minimum sentence is essentially a death sentence. Defendant claims that this
sentence is not proportionate to his circumstances and the circumstances of the offense, but
provides no explanation in that regard. We reject his argument and conclude that the trial court
did not abuse its discretion in rendering this sentence. Defendant had an extensive, violent criminal
history. He had already spent about 11 years in prison for shooting someone else—with the intent
to murder—and had been paroled only about six months before he shot and killed the victim in
this case for no apparent reason. Defendant shot the victim at a public gathering in the vicinity of
numerous other innocent people without regard for the potential catastrophic consequences. This
was a cold-blooded murder—a most egregious offense in the spectrum of crimes and warranting
the most severe punishment. See Milbourn, 435 Mich at 650. Previous attempts at reformation
clearly were unsuccessful, establishing that defendant has a low potential for rehabilitation. See
Babcock, 469 Mich at 263. Defendant has proven with his long and violent criminal history that
he is a danger to the community and to society in general. See Boykin, 510 Mich at 183. In
challenging his 65-year minimum sentence, defendant bore the burden of demonstrating that his
within-guidelines sentence is unreasonable or disproportionate,” Posey, 512 Mich ___; slip op at
36, and defendant has wholly failed to carry his burden. Therefore, we conclude that defendant’s
-3-
65-year minimum sentence is “proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Milbourn, 435 Mich at 636.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Michael J. Kelly
-4-