People of Michigan v. Dennis Robert Shepler

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 27, 2018
Plaintiff-Appellee,
v No. 323979
Macomb Circuit Court
DENNIS ROBERT SHEPLER, LC No. 2014-001628-FC
Defendant-Appellant.
ON REMAND
Before: SAWYER, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
In our original opinion in this matter, we affirmed defendant’s convictions for armed
robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL 750.157a, but remanded
the matter to the trial court to revisit his sentence of 250 months to 30 years in light of this
Court’s opinion in People v Steanhouse, 313 Mich. App. 1; 880 NW2d 297 (2015). Defendant
sought leave to appeal to the Supreme Court. After reversing our decision in Steanhouse, the
Supreme Court, in lieu of granting leave, reversed our decision to remand the sentencing issue to
the trial court and remanded the matter to us “for plenary review of whether the defendant’s
sentence was disproportionate under the standard set forth in People v Milbourn, 435 Mich. 630,
636 (1990).” People v Shepler, ___ Mich ___; ___ NW2d ___ ( Docket No. 153216, issued
11/29/2017).
Under Milbourn, a proportionate sentence “must take into account both the nature of the
offense and the background of the offender.” Dixon-Bey, ___ Mich App ___, ___; ___ NW2d
___ (Docket No. 331499, September 26, 2017), slip op at 16, quoting Milbourn, 435 Mich. at
651. Here, and as the trial court explained, defendant’s criminal record is “beyond atrocious.”
Defendant’s PSIR indicates a fairly remarkable history of criminal activity, the majority of which
involves crimes involving theft. Defendant also seems completely unaffected by punishment.
He has committed crimes soon after being released from jail or prison, while on probation, and
while on parole. He has escaped from prison, and absconded from parole numerous times. In
one instance, he removed a GPS bracelet without authorization to avoid detection. He has not
complied with other conditions of parole, such as complying with substance abuse treatment and
mental health treatment. He has not taken prescribed medications, nor has he made any
payments toward fees owed. The instant offenses, which again involved a plan to commit a
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theft, were committed three weeks after defendant was released from the Detroit Reentry Center,
following a sanction imposed against defendant for absconding from parole.
As the trial court explained, while the sentencing guidelines do account generally for past
criminal behavior, the guidelines do not account for the fact that defendant’s history shows that
the seriousness of the offenses he has committed is escalating. Nor do the guidelines take into
account all of defendant’s prior criminal history. As the prosecutor explained, defendant’s PRV
score would have remained the same even if defendant had 10 fewer felony convictions. Thus,
these 10 felony convictions were essentially left unaccounted for by the guidelines. And because
defendant’s PRV score exceeded the minimum required to place him in the most serious PRV
level under the applicable sentencing grid, even those criminal acts that were fully accounted for
by the individual PRVs were ultimately not fully reflected in the recommended sentencing
guidelines range.1 Thus, the factors relied on by the trial court are clearly those that may warrant
a departure: factors that are either not accounted for by the guidelines, or those that are given
inadequate weight. Dixon-Bey, ___ Mich App at ___; slip op at 19.
Further, in Milbourn, our Supreme Court explicitly sanctioned departure sentences based
on the fact that a defendant has an “extensive criminal record[]” because the guidelines do not
take such extensive criminal records into account. Milbourn, 435 Mich. at 657. And in People v
Smith, 482 Mich. 292; 754 NW2d 284 (2008), our Supreme Court explained that where a
defendant’s total OV score far exceeds the maximum score contemplated by a particular grid, a
proportionate sentence may well depart from the guidelines because “the Legislature did not
contemplate a defendant with such a high OV score . . . .” Smith, 482 Mich. at 308-309. The
same could be said of defendant’s PRV score in this matter.
Affirmed.
/s/ David H. Sawyer
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
1
While these specific reasons were not fully articulated by the trial court, the trial court did
reference the prosecutor’s sentencing memorandum, and the court seemed to be expressing its
agreement with the prosecutor’s position. Thus, we conclude that the trial court did, in fact,
articulate these reasons as supporting its sentencing departure.
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