20241127_C368898_27_368898.Opn.Pdf ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 27, 2024
Plaintiff-Appellee, 10:49 AM
v No. 368898
Saginaw Circuit Court
ALONTE PERTON SMITH, LC No. 17-044002-FC
Defendant-Appellant.
Before: MALDONADO, P.J., and M. J. KELLY and GARRETT, JJ.
PER CURIAM.
Defendant was convicted by a jury of one count of assault with intent to murder (AWIM),
MCL 750.83; two counts of possession of a firearm during the commission of a felony, second
offense (felony-firearm), MCL 750.227b; one count of felon in possession of a firearm (felon-in-
possession), MCL 750.224f; and one count of tampering with an electronic monitoring device,
MCL 771.3f. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to
serve concurrent prison terms of 40 to 50 years for AWIM; 4 to 20 years for felon-in-possession;
and 2 to 15 years for tampering with an electronic monitoring device. Defendant was also
sentenced to serve 5 years’ imprisonment for each felony-firearm conviction, to be served
consecutively to the underlying felonies. Defendant appeals his sentence by right, and we affirm.
I. BACKGROUND
Defendant’s conviction was affirmed in a prior appeal, but the case was remanded for the
trial court to reinstate defendant’s original sentence of 40 to 50 years’ imprisonment for his AWIM
conviction after the trial court erroneously increased defendant’s maximum sentence under the
inapplicable “two-thirds” rule in MCL 769.34(2)(b). People v Smith, 336 Mich App 79; 969
NW2d 548 (2021). In the prior appeal, this Court summarized the underlying crimes as follows:
Defendant shot the wrong person. Defendant and the intended victim were
in rival Saginaw-area gangs, and the intended victim had recently made
homophobic slurs against him in a Facebook Live video. As revenge, defendant
shot the actual victim, a woman whom he mistook for the rival-gang member. . . .
The victim was shot more than 10 times while seated in the front-passenger seat of
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a vehicle in the driveway of her home. Although no eyewitness could identify the
shooter, data from defendant’s GPS tether showed that he was present at the scene
when the shooting occurred. The prosecutor argued that defendant was a member
of a gang and that he shot the victim after mistaking her for . . . a rival-gang member
with whom he had been feuding on Facebook.
After the case was remanded, defendant was sentenced as described, and this appeal followed.
II. DISCUSSION
Defendant argues that the 40-year minimum sentence he was given for his AWIM
conviction was disproportionate to the offense and offender. We disagree.
“Sentencing decisions are reviewed for an abuse of discretion.” People v Boykin, 510 Mich
171, 178; 987 NW2d 58, (2022). A trial court abuses its discretion when it chooses a decision that
“falls outside the range of principled outcomes.” People v Scott, ___ Mich ___, ___; ___ NW3d
___ (2024) (Docket No. 164790); slip op at 17 (quotation marks and citation omitted). “[T]he
relevant question for appellate courts reviewing a sentence for reasonableness is whether the trial
court abused its discretion by violating the principle of proportionality.” People v Dixon-Bey, 321
Mich App 490, 520; 909 NW2d 458 (2017) (quotation marks and citation omitted). “[T]he
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.” People v
Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017) (quotation marks and citation omitted).
Michigan’s sentencing guidelines are now advisory only, but trial courts must still consult
the guidelines and take them into account during sentencing. People v Lockridge, 498 Mich 358,
391; 870 NW2d 502 (2015). Our Supreme Court recently held that within-guidelines sentences
are subject to review for reasonableness; however, a within-guidelines sentence is afforded a
nonbinding “presumption of proportionality . . . through which the defendant bears the burden of
demonstrating that their within-guidelines sentence is unreasonable or disproportionate[.]” People
v Posey, 512 Mich 317, 359; 1 NW3d 101 (2023) (opinion by BOLDEN, J.). “An appropriate
sentence should give consideration to the reformation of the offender, the protection of society,
the discipline of the offender, and the deterrence of others from committing the same offense.”
People v Posey (On Remand), ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No.
345491); slip op at 2 (quotation marks and citation omitted).
In regard to proportionality, the Milbourn Court observed that the Legislature has
determined to visit the stiffest punishment against persons who have demonstrated
an unwillingness to obey the law after prior encounters with the criminal justice
system. 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. [People v Purdle (On Remand), ___ Mich App ___, ___;
___ NW3d ___ (2024) (Docket No. 353821); slip op at 5 (quotation marks and
citations omitted).]
Proportionality is “measured according to the offense and the offender, not according to the
sentence’s relationship to the guidelines.” Posey, 512 Mich at 356.
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Defendant’s minimum sentence of 40 years’ imprisonment for AWIM is within the
recommended guidelines range of 225 to 750 months (18.75 to 62.5 years) and is, therefore,
presumed to be proportionate. Posey, 512 Mich at 317, 359. Defendant argues that his within-
guidelines sentence was disproportionate and unreasonably harsh. However, the trial court’s
decision to impose a sentence in the middle of the recommended guidelines range was support by
the significant number of serious aggravating circumstances in the case. The evidence clearly
showed that, by shooting the victim 11 times, defendant acted with the specific intent to kill his
victim. Had defendant been successful, the evidence would have supported a conviction of first-
degree murder,1 which carries a mandatory sentence of imprisonment for life without the
possibility of parole.2 Evidence also showed that defendant acted with premeditation in response
to a disrespectful Facebook Live video, defendant followed the victim in his car prior to the
shooting, and defendant used the element of surprise to shoot the victim when she was completely
defenseless. Moreover, the shooting was the direct result of defendant’s gang affiliation, and it
was committed while defendant was on parole. Finally, there was evidence that defendant wrapped
his GPS tether in aluminum foil to proactively cover his tracks. Given these facts, the court was
wholly justified in determining that a lower minimum sentence was not warranted.
Defendant suggests that the court “had no real guidance” when it sentenced defendant
because the guidelines range—225 to 750 months—was too broad. However, this critique of the
of the guidelines range does not actually address whether defendant’s sentence was proportionate
to him and his offense. Defendant, citing Department of Correction Statistics, suggests that
defendant’s sentence was unduly harsh because it was longer than the statistical average sentence
for second-degree murder. This argument is unpersuasive for three reasons. First, as discussed,
this offense would have been a first-degree murder had defendant succeeded in killing the victim.
Second, it is unclear why defendant compares his sentence to statistical average sentence for
second-degree murder given that defendant was convicted of AWIM. Third, this average
presumably includes every person convicted of second-degree murder instead of those, like
defendant, who were sentenced as fourth-offense habitual offenders. Defendant cites his family’s
criminal history and his own mental illness as mitigating factors, but these mitigating factors need
to be weighed against the aggravating factors discussed earlier. Finally, defendant raises
arguments regarding the tendency of “adolescent” offenders to “age out” of criminal activity, but
defendant was not notably young when he committed the offense at 24 years old.
1
“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bass, 317 Mich App 241, 265-266; 893 NW2d 140(2016) (quotation marks and citation omitted).
2
MCL 750.316(1).
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In conclusion, the record supported defendant’s sentence, and he has failed to overcome
the presumption that his within-guidelines sentence for AWIM was proportionate.
Affirmed.
/s/ Allie Greenleaf Maldonado
/s/ Michael J. Kelly
/s/ Kristina Robinson Garrett
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