People of Michigan v. Allan Wayne Shank

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
November 17, 2015
Plaintiff-Appellee, 9:10 a.m.
v No. 321534
Presque Isle Circuit Court
ALLAN WAYNE SHANK, LC No. 12-092763-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.
BORRELLO, J.
Defendant, Allan Wayne Shank, appeals by delayed leave granted1 his sentence
following his guilty pleas 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 him as a fourth-offense habitual offender.2 MCL 769.12. The trial court sentenced
Shank to serve 12 to 25 years’ imprisonment for his felon in possession and a consecutive term
of two years’ imprisonment for his felony-firearm conviction. In consideration of our recent
ruling in People v Steanhouse, ___Mich App ___; ___ NW2d ___ (2015), we remand the matter
to the trial court for resentencing.
I. FACTS
Police officers received disturbing information that Jerry Hilliard, a prison inmate, had
sent an eight year old child a gift and card through Shank, who had been in prison with Hilliard
and who has previous convictions of accosting minors for immoral purposes. During the
investigation, officers discovered that Hilliard had requested that Shank take a photograph of the
child posing in only a necklace. While executing a warrant, officers found a Winchester pump
.22 caliber rifle in Shank’s hall closet. Officers also found evidence that Shank had sent Hilliard
a photograph of what appeared to be a pregnant seven year old child and discovered in Shank’s
1
People v Shank, unpublished order of the Court of Appeals, entered June 12, 2014 (Docket No.
321534).
2
This status increased Shank’s possible maximum term of imprisonment to life imprisonment.
MCL 769.12(1)(b); MCL 750.227b(1).
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photo album a photograph of a 5-year-old girl exposing her vaginal area, which Shank denied
belonged to him.
Shank pleaded guilty to felon in possession and felony-firearm, and the prosecution
dropped a charge of possession of child sexually abusive material. The sentencing guidelines
recommended a minimum sentence of 7 to 46 months’ imprisonment for Shanks’ felon in
possession conviction. The trial court decided to depart upward, instead sentencing Shank to 12
to 25 years’ imprisonment. It gave several reasons for its departure, including that Shank did not
have much rehabilitative potential since he had been frequently incarcerated for reoffending,
violated probation, parole, and received misconduct citations in prison. The trial court also
relied on the concerning nature of Shank’s noncriminal behavior. The trial court explained that
Shank was “assisting his prison mates in making contact with young children outside the prison
system. He’s starting to groom children in spite of having served these long sentences . . . .
There’s been just no rehabilitation at all.”
II. STANDARDS OF REVIEW
This Court, in Steanhouse, considered the impact of People v Lockridge, ___ Mich ___;
___ NW2d ___ (2015) on departure sentences following our Supreme Courts’ opinion in
Lockridge. Steanhouse holds that pursuant to Lockridge, this Court must review a defendant’s
sentence for reasonableness. Lockridge, ___ Mich at ___; slip op at 2, 29, citing United States v
Booker, 543 U.S. 220, 264; 125 S. Ct. 738; 160 L. Ed. 2d 621 (2005). Hence, when the trial court
departs from the applicable sentencing guidelines range, this Court will review that sentence for
reasonableness. People v Lockridge, ___ Mich ___; ___; slip op at 29. However, as stated in
Steanhouse, “The appropriate procedure for considering the reasonableness of a departure
sentence is not set forth in Lockridge.” Steanhouse, ___ Mich App at ___; slip op at 35. After
discussion of the approaches Michigan Appellate courts should employ when determining the
reasonableness of a sentence, this Court adopted the standard set forth by our Supreme Court in
People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).
III. PRINCIPLE OF PROPORTIONALITY.
Under Milbourn, “a given sentence [could] be said to constitute an abuse of discretion if
that sentence violate[d] the principle of proportionality, which require[d] sentences imposed by
the trial court to be proportionate to the seriousness of the circumstances surrounding the offense
and the offender.” Milbourn, 435 Mich. at 636; Steanhouse, ___ Mich App at ___; slip op at 37.
As such, trial courts were required to impose a sentence that took “into account the nature of the
offense and the background of the offender.” Milbourn at 651. As stated in Milbourn:
Where there is a departure from the sentencing guidelines, an appellate
court’s first inquiry should be whether the case involves circumstances that are
not adequately embodied within the variables used to score the guidelines. A
departure from the recommended rang in the absence of factors not adequately
reflected in the guidelines should alert the appellate court to the possibility that
the trial court has violated the principle of proportionality and thus abused its
sentencing discretion. Even where some departure appears to be appropriate, the
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extent of the departure (rather than the fact of the departure itself) may embody a
violation of the principle of proportionality. Milbourn, at 659-660.
As set forth in Steanhouse, “factors previously considered by Michigan courts under the
proportionality standard included, among others, (1) the seriousness of the offense, (2) factors
not considered by the guidelines . . . (3) factors that were inadequately considered by the
guidelines in a particular case. Steanhouse, at ___ slip op at 38. (Internal citations omitted).
In this case, the trial court did not have the benefit of our Supreme Court’s decision in
Lockridge or this Court’s decision in Steanhouse. Because of this fact, the trial court’s sentence
departure centered on the then existing substantial and compelling reason standard which was
overturned by Lockridge, ___ Mich at ___; slip op at 29. Accordingly, in accordance with this
Court’s decision in Steanhouse, we remand this matter to the trial court for a Crosby3 hearing.
“The purpose of a Crosby remand is to determine what effect Lockridge would have on the
defendant’s sentence, so that it may be determined whether any prejudice resulted from the
error.” People v Stokes, ___ Mich App ___ ; ___ NW2d ___; (2015) slip op at 11. Also,
pursuant to Stokes, defendant is provided with an opportunity to avoid resentencing by promptly
notifying the trial judge that resentencing will not be sought. Stokes, ___ Mich App at ___; slip
op at 11-12, quoting Lockridge, ___ Mich at ___; slip op at 35.
Accordingly, we remand the matter to the trial court to follow the Crosby procedure
outlined in Lockridge. Because defendant may be sentenced to a more severe sentence,
defendant “may elect to forgo resentencing by providing the trial court with prompt notice of his
intention to do so. If notification is not received in a timely manner,” the trial court shall
continue with the Crosby remand as explained in Lockridge and Stenhouse. See generally,
Stokes, ___ Mich App at ___; slip op at 12.
We remand the matter for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Joel P. Hoekstra
3
397 F 3d 103 (CA 2 2005).
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