PEOPLE OF MI V EDWARD JERMOME JONES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 24, 2000
Plaintiff-Appellee,
v
No. 208833
Wayne Circuit Court
Criminal Division
LC No. 96-007060
EDWARD JEROME JONES,
Defendant-Appellant.
Before: Neff, P.J., and Sawyer and Saad, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317;
MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2). Defendant was sentenced to thirty to sixty years in prison for the murder conviction, to be
served consecutively to his two-year term for the felony-firearm conviction. Defendant now appeals as
of right. We affirm.
This case arises from a shooting that occurred on July 26, 1995, at around 5:00 p.m., at a
Coney Island restaurant in the City of Detroit. Two men, Steven Daniels and defendant, were outside
the restaurant together when Daniels stopped to talk to a friend in the parking lot. Daniels had a friendly
conversation with the woman and he and defendant then walked away. Within a few steps, with no sign
of strife, defendant turned and shot Daniels between nine and eleven times. Defendant walked away
from the scene and Daniels died shortly thereafter. Defendant was arrested on August 19, 1996, and
was identified as the shooter by two witnesses in a corporeal lineup on September 10, 1996, and by
several other witnesses at trial.
Defendant claims on appeal that his sentence was disproportionate to the offense and the
offender. We disagree.
This Court reviews a defendant’s sentence for an abuse of discretion. People v Rice (On
Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999). A court abuses its discretion if the
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sentence violates the principle of proportionality which requires a sentence to be proportionate to the
offense committed and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
Defendant first claims that the trial court’s departure from the guidelines range of eight to
twenty-five years in prison was improper because the seriousness of the crime was already embodied in
the offense variables for second-degree murder. Generally, the proportionality of a sentence is
determined by whether it “reflects the seriousness of the matter” and not whether the sentence departs
from the recommended range. People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995).
Where the sentencing guidelines fail to account for the seriousness of a particular offense, a sentencing
court may lengthen a sentence based on factors already considered by the guidelines. People v
Granderson, 212 Mich App 673, 680; 538 NW2d 471 (1995). However, a deviation from the
guidelines range based on factors already considered by the guidelines should be made with caution.
Milbourn, supra, 435 Mich 660 n 27. Therefore, when deviating from the guidelines “because of the
special characteristics of the offense or the offender, [the court] must specifically explain those
characteristics” warranting the departure. People v Stone, 195 Mich App 600, 608; 491 NW2d 628
(1992).
In this case, the trial judge explained her reasons for departing from the sentencing guidelines for
the offense by citing the number of bullets used to kill Daniels. In addition, in her departure evaluation
form, the judge explained that the increased sentence was also based on the fact that Daniels was
defenseless at the time of attack, that defendant fired additional shots after Daniels fell to the ground,
and that defendant walked away and left Daniels helpless.
The brutality of the offense and the number of wounds inflicted by a defendant can constitute
legitimate factors that are not adequately considered or weighed in the sentencing guidelines. People v
Grady, 204 Mich App 314, 316; 514 NW2d 541 (1994). In this case, the pathologist found nine
direct gunshot wounds on Daniels and two grazing wounds, one of which may have been an exit wound.
Offense variable 3 for homicide, which defendant claims covers this crime, takes into account only
whether the intent to kill was premeditated or not. Michigan Sentencing Guidelines (2d ed, 1988), p
77. Defendant essentially unloaded an entire clip of bullets in shooting Daniels, which evidences an
unusually excessive amount of force that is not contemplated by that variable. Further, defendant stood
only three feet from Daniels when he fired on him, making his use of nine to eleven bullets even more
extreme.
The trial court also noted that Daniels was essentially defenseless when defendant opened fire
on him. The infliction of multiple wounds upon an unarmed victim can be a valid reason for departing
from the sentencing guidelines. People v Shavers, 448 Mich 389, 393; 531 NW2d 165 (1995).
Further, this Court has held that the surprise nature of an attack can be a factor that has not been
adequately considered by the guidelines offense variables. People v Castillo, 230 Mich App 442,
448-449; 584 NW2d 606 (1998). Here, Daniels had a jovial conversation with friends and was shot
by defendant a few steps later, without argument or confrontation. The sudden and severe nature of
defendant’s attack on Daniels, who had no opportunity to defend himself or to flee, places this offense
in a category more severe than those contemplated by the guidelines variables.
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In addition, testimony revealed that defendant paused after shooting Daniels several times and
then he fired two or more shots while Daniels lay helpless on the ground. While the jury did not find that
this amounted to premeditation or deliberation to warrant a first-degree murder conviction, the trial
court was entitled to take this evidence into account when determining defendant’s sentence. People v
Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1998). Evidence that defendant fired after
Daniels was obviously incapacitated was also not adequately reflected in the guidelines variables and
was properly considered by the trial court.
The seriousness of defendant’s offense is further evidenced by his behavior after he shot
Daniels. The fact that defendant simply walked away, essentially leaving Daniels for dead, is another
factor not adequately reflected in the variables that raises this crime to a level beyond the guidelines
range. Given the extreme amount of force used on a surprised and defenseless victim, and defendant’s
continued barrage upon Daniels after at least some momentary reflection, there was no abuse of
discretion in the trial court’s sentence; the sentence was proportionate to the seriousness of this offense
and the egregiousness of the crime was not sufficiently addressed by the sentencing guidelines.
Defendant also contends that his sentence was disproportionate to the offender because he had
no history of violence and because the trial court improperly took his personal history into account
without considering his chances for rehabilitation. In addition to being proportionate to the seriousness
of the crime, a sentence must also be proportionate to the defendant's prior record. Milbourn, supra,
435 Mich 636. A trial court may legitimately consider a defendant’s prior criminal behavior, including
juvenile records, in imposing an appropriate sentence. People v Ross, 145 Mich App 483, 495; 378
NW2d 517 (1985). Specifically, the trial court cited defendant’s prior crimes involving drugs and
firearms, his involvement in the criminal justice system since a young age, and his escape from a
detention facility in deviating from the guidelines.
Defendant’s prior criminal contacts did not fit into the prior record variables in the sentencing
guidelines. However, defendant’s presentence report reveals a significant history of criminal behavior
from an early age. At fifteen, defendant was charged with a violation of the controlled substances act
and he was convicted of possession with intent to deliver cocaine. Defendant later escaped from the
Phoenix Detention Center in 1992, after curfew and school attendance violations. In addition, a warrant
was issued in 1996 for defendant’s arrest in New York for eight counts of drug possession. Several
criminal violations were also reported by the Youth Bureau regarding defendant’s history of felonious
assault and possession of a stolen motor vehicle. This prior criminal conduct for a twenty-one-year-old
defendant was extensive.
A trial court is also authorized to consider a defendant's social and personal history in imposing
an appropriate sentence. Ross, supra, 145 Mich App 495. Defendant’s presentence report indicates
he had substance abuse problems and that he had some prior involvement with guns. Moreover, the
report indicates that defendant himself was shot several times in 1993. In addition, the trial court found
no evidence of any effort by defendant to follow standards of responsible behavior in his choice to quit
school after the ninth grade in favor of a life of crime. And, the trial judge specifically addressed
defendant’s age when she stated that he was not too young to understand how to comport with societal
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norms. Finally, defendant’s personal history shows little or no interest in bettering himself through
further education or employment.
The above factors regarding defendant’s criminal and personal history were properly
considered by the trial court and it was not an abuse of discretion for the court to conclude that
defendant’s pattern of behavior suggested little possibility for rehabilitation. People v Stammer, 179
Mich App 432, 437; 446 NW2d 312 (1989). The court’s deviation from the sentencing guidelines
range, based upon the seriousness and severity of this offense and this offender, did not violate the
principle of proportionality and was not an abuse of discretion.
Affirmed.
/s/ Janet T. Neff
/s/ David H. Sawyer
/s/ Henry W. Saad
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