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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 6, 2023
Plaintiff-Appellee,
v No. 362017
Barry Circuit Court
ANDREA LYNN PODBEVSEK, LC No. 2021-000698-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and RICK and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by leave granted1 her guilty plea convictions of operating while
intoxicated causing serious injury (OWI), MCL 257.625(5)(a), and driving while license
suspended causing serious injury (DWLS), MCL 257.904(5). The trial court sentenced defendant
as a second-offense habitual offender, MCL 769.10, to concurrent sentences of 60 to 90 months’
imprisonment for each conviction. We reverse and remand for resentencing.
I. FACTUAL BACKGROUND
On June 18, 2021, defendant got into a car accident after taking too much of her prescribed
medication, alprazolam, a generic form of Xanax. Alprazolam is a medication used to manage
anxiety symptoms. An eyewitness filmed the incident. The video shows defendant weaving into
oncoming traffic and hitting another car head on. The driver of the other vehicle was seriously
injured. The driver’s grandchildren, who were in the backseat at the time, sustained minor bruises.
A police officer who responded to the scene stated that he “smelled the odor of intoxicants”
when he talked to defendant. The officer also reported to have observed that defendant had watery,
bloodshot eyes and dilated pupils. Defendant was slurring her speech and was unable to walk
1
People v Podbevsek, unpublished order of the Court of Appeals, entered September 15, 2022
(Docket No. 362017).
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without stumbling. Defendant failed multiple sobriety tests, and was asked to submit to a
preliminary breath test (PBT). Several PBTs were administered, and each time, the machine
registered a .15 and then dropped to a .000. Defendant was taken to the hospital and had her blood
drawn to test for intoxicants. The test results showed she had 246 ng/mL of alprazolam in her
system.2 The test did not reveal any evidence that defendant had ingested alcohol or other
intoxicants. Defendant was charged with one count of OWI and one count of DWLS. She pleaded
no contest to both charges.
Defendant’s recommended minimum sentencing guidelines range was 5 to 28 months. The
prosecutor requested that defendant be sentenced to 60 to 90 months’ imprisonment instead.
Defendant has a lengthy history of driving-related accidents, including an incident in which she
hit a man on a bicycle with her car and fled the scene. For this she was convicted of failure to stop
at the scene of an accident causing serious injury, MCL 257.617. She also has a number of prior
misdemeanor DWLS convictions. The prosecutor explained that the sentencing guidelines did not
account for defendant’s long history of driving-related crimes. The prosecutor contended that
defendant would likely continue to drive regardless of whether she had a license, as evidenced by
her criminal record, and thus recommended that she be incarcerated.
The trial court agreed with the prosecution and sentenced defendant to concurrent terms of
60 to 90 months’ imprisonment for each conviction. The trial court explained the rationale for the
departure, stating:
I’m going to note a couple things for the record. First of all, because there’ll
likely be an appeal on this case. Everything the Prosecutor said, all of the basis for
his request for a prison sentence and then above the guidelines prison sentence, I’m
adopting into my arguments here; my basis for a prison sentence.
* * *
This Defendant has absolutely no regard whatsoever for rules. Putting her on
probation—she’s been there before and hasn’t learned. Taking away her license
absolutely doesn’t work. She has 8 or 10 driving with license suspended’s [sic].
That won’t prevent her from driving, at all. Her accidents—and it is—her sentence
should be almost no different than if there were four dead people because they
aren’t dead because of anything she did, they aren’t dead because she tried to help
or save them, they’re just dead by the grace of God—they’re not dead by the grace
of God.
2
According to the Food and Drug Administration (FDA), blood plasma levels of alprazolam “are
proportionate to the dose given; over the dose range of 0.5 to 3.0 mg, peak levels of 8.0 to 37
ng/mL were observed[,]” suggesting that at 246 ng/mL, the amount of alprazolam in defendant’s
system at the time of the accident was well outside the normal range. Food and Drug
Administration, Xanax Alprazolam Tablets, USP Fact Sheet, available at
.
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The first person, a few years ago, she ran over on a bike obviously had to
know she did it, and she just leaves the scene. Doesn’t even call 911 anonymously
to say would you please help the person in the ditch that I might have just killed.
Put her on probation and it doesn’t—it doesn’t work. She gets—she’s got
help, she’s gotten counseling and now she—she crashes into a grandpa with his six-
and seven-year-old and the grandpa is hurt bad, multiple broken bones, has to have
surgery, almost dies as a result of that. And is still—still injured.
The four objectives, first of all I have a right to go above the guidelines,
they’re not mandatory, they’re advisory. I have the absolute right to go above them.
The four objectives of sentencing are rehabilitation. We’ve tried that for years; it
has not worked.
Incapacitation, yes, she needs to be incapacitated, taken off the streets so
she does not kill someone. Deterrence, yes, we have to have prison occasionally to
send a message to this person and others in the community that this is absolutely
not acceptable. Absolutely not, and if you do it, you’re gonna [sic] go to prison.
That’s what deterrent is.
And punishment, yeah this is serious. This is really really serious. There
has to be a punishment and jail is not appropriate in this case. It is not significant
enough.
The sentence needs to be proportionate to the crime viewed against the
backdrop of the Defendant’s criminal history. That’s what the Court says. Clearly
proportionate. This clearly could be more than a 60 to 90—90 month sentence, but
it’s not because of the grace of God because four people are still alive here in this
case; 60 to 90 months, in many ways, is a gift here.
Defendant subsequently applied for leave to appeal to this Court, which was granted.
II. ANALYSIS
Defendant argues that the trial court erred by imposing an unreasonable and
disproportionate upward departure from her minimum sentencing guidelines range. We agree.
“A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge,
498 Mich 358, 392;
870 NW2d 502
(2015). “The standard of review when determining whether a departure sentence was reasonable
is abuse of discretion.” People v Warner,
339 Mich App 125, 153;
981 NW2d 733 (2021). “A
trial court abuses its discretion when it applies a minimum sentence that violates the principle of
proportionality, which occurs when the trial court ‘fail[s] to provide adequate reasons for the extent
of the departure sentence imposed . . . .’ ” Id. at 153-154, quoting People v Steanhouse,
500 Mich
453, 476;
902 NW2d 327 (2017). Consequently, the “key test is whether the sentence is
proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.” Steanhouse, 500 Mich at 472 (quotation marks and citation
omitted). Additionally, this Court has expressed that relevant factors for determining whether a
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departure sentence is more proportionate than a sentence within the guidelines range continue to
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,
321 Mich App 490, 525;
909 NW2d 458 (2017) (quotation marks
and citations omitted).]
In determining an appropriate sentence, the sentencing court may also consider a defendant’s
misconduct while in custody, expressions of remorse, and potential for rehabilitation. People v
Barnes,
332 Mich App 494, 505;
957 NW2d 62 (2020) (citation omitted).
The sentencing guidelines are advisory, not mandatory. Lockridge,
498 Mich at 399.
However, “although the guidelines can no longer be mandatory, they remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion.”
Id. at 391. “[T]rial courts ‘must
consult those Guidelines and take them into account when sentencing.’ ”
Id., quoting United States
v Booker,
543 US 220, 264;
125 S Ct 738;
160 L Ed 2d 621 (2005). A sentencing court may depart
from the sentencing guidelines without a substantial and compelling reason to do so, but must still
“justify the sentence imposed in order to facilitate appellate review.” Lockridge,
498 Mich at 391-
392.
In this case, defendant’s minimum sentencing guidelines range was 5 to 28 months. The
trial court departed upward and sentenced defendant to 60 to 90 months’ imprisonment. It appears
that the trial court based its sentence on the fact that a worse set of circumstances, namely the death
of four people, could have happened. This is, however, not what happened. Furthermore, the trial
court noted that “[d]efendant has absolutely no regard whatsoever for rules,” and that less
restrictive punitive measures—probation, suspending defendant’s license, and the like—had failed
to curb defendant’s reckless driving. The trial court contemplated the four traditional objectives
of sentencing: rehabilitation, incapacitation, deterrence, and punishment. But the Court failed to
explain why the sentencing guidelines, which take these factors into account, failed to offer a
proportionate sentence. See People v Daniel,
462 Mich 1, 7 n 8;
609 NW2d 557 (2000). Moreover,
the trial court decided that the sentence imposed was proportionate to the crime viewed against the
backdrop of defendant’s criminal history, a consideration accounted for in more than one of the
prior record variables.
Further, at no point did the trial court explain why it chose to sentence defendant to a
specific 60- to 90-month term of imprisonment rather than a lesser term of imprisonment, nor did
it explain why the offense variables (OVs) and prior record variables (PRVs) failed to adequately
capture the seriousness of the offense or the background of the offender. The trial court’s decision
to impose an upward departure sentence was clearly influenced by its concern about a hypothetical
outcome rather than the facts of the case. The court’s rationale was also strongly influenced by
defendant’s failure to benefit from past punishments that had been designed to rehabilitate instead
of punish her. But the trial court failed to explain how or why the guidelines inadequately
accounted for defendant’s failure to benefit from rehabilitative programming, or how her behavior
was somehow more egregious than that of any other repeat OWI offender. Accordingly, we
conclude that resentencing is appropriate.
Furthermore, we are concerned that the trial court may have been misled by certain
statements contained in the pre-sentence report. Under “Agent’s Description of the Offense”, there
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is a notation that a police officer on the scene of the tragic accident giving rise to this conviction
claimed to have “smelled the odor of intoxicants” on defendant when he spoke with her. This
report was refuted by objective evidence. Blood testing definitively determined that the only
intoxicant in defendant’s system when the accident occurred was Xanax, an odorless prescription
medication. “A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco,
474 Mich 82, 88,
711 NW2d 44 (2006). Since a question exists
as to whether the officer’s recollection of events may have confused or tainted the trial court’s
perception of defendant’s behavior in this case, we again reiterate that resentencing is proper in
this case.
Ultimately, the trial court failed to articulate appropriate reasons for departing from the
guidelines, and utterly failed to justify the extent of the departure sentence it imposed.3 The court’s
discussion focused almost solely on what defendant might do in the future if sentenced to a less
punitive term, as well as its disappointment over defendant’s failure to benefit from past
rehabilitative measures. At no point did the court explain why it believed that defendant’s crimes
were not adequately accounted for by the scoring of the guidelines. Because the court failed to
address the reasons underlying the extent of the departure sentence it imposed, we conclude that it
abused its discretion by sentencing defendant to 60 to 90 months’ imprisonment. Defendant is
entitled to resentencing.
Reversed and remanded for resentencing. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michelle M. Rick
/s/ Allie Greenleaf Maldonado
3
Defendant’s prior record variable (PRV) score was 17 and her offense variable (OV) score was
45, placing her in the C-IV section of the applicable grid. Even if both her PRV and OV scores
were maxed out, her minimum range would be 24 to 47 months—far below the sentence imposed.
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