PEOPLE OF MI V KELLY LEE MURPHY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 6, 2007
Plaintiff-Appellee,
v
No. 266834
Berrien Circuit Court
LC No. 04-406941-FH
KELLY LEE MURPHY,
Defendant-Appellant.
Before: Borrello, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
Defendant was sentenced to two years’ probation following his plea of guilty to a charge
of resisting or obstructing a police officer, MCL 750.81d(1). He subsequently violated his order
of probation, and was sentenced to 14 to 24 months in prison. Defendant appeals by delayed
leave granted from his conviction of probation violation and resulting sentence. We affirm.
Defendant was charged with violating Conditions 14 and 25 of his probation order.
Condition 14 precluded him from engaging in any assaultive, abusive, threatening, or
intimidating behavior. Condition 25 required that he enroll in the Kalamazoo Probation
Enhancement Program (KPEP), that he follow all its rules, and that he successfully complete the
program. Within one month of being placed on probation, defendant was expelled from KPEP
for making kissing noises toward a teacher in a GED program, trying to hug her, asking for her
address and telephone number, and trying to give her his address and telephone number.
The prosecution has the burden of proving a charge of probation violation by a
preponderance of the evidence. MCR 6.445(E)(1); People v Pillar, 233 Mich App 267, 270; 590
NW2d 622 (1998).
Defendant first argues that although his behavior toward the teacher was childish,
inappropriate, and disruptive, it was not “assaultive, abusive, threatening or intimidating.”
Further, he asserts that basing a probation violation on dismissal from KPEP placed too much
authority in KPEP personnel, and that the trial court had to determine whether the dismissal was
based on sufficient and proper grounds. Defendant’s citation of Pillar, supra, for this
proposition is inapposite. In Pillar, the evidence showed that the defendant had been arrested
-1-
and charged with a crime, but there were no verified facts in the record indicating a violation of
probation. Pillar, supra at 269-270.1 In contrast, the prosecutor here established that defendant
was expelled from KPEP. Failure to complete the program was a condition of probation. A
violation of Condition 25 was established by sufficient evidence. Reynolds, supra.
Defendant next argues that the trial court did not have substantial and compelling reasons
for departing from the sentencing guidelines. The minimum sentence of 14 months was within
the guidelines range of zero to 17 months. However, since the upper limit of this range was less
than 18 months, substantial and compelling reasons were required to sentence defendant to
prison. MCL 769.31(b); MCL 769.34(4). A violation of probation can constitute a substantial
and compelling reason for departure, People v Hendrick, 472 Mich 555, 557; 697 NW2d 511
(2005), as can a prior record that was given inadequate weight. MCL 769.34(3)(b). Under MCL
777.55(1)(a), defendant was scored 20 points for having seven or more prior misdemeanor
convictions. Defendant had 33 prior misdemeanor convictions. The trial court did not abuse its
discretion in concluding that defendant’s prior record was given inadequate weight. This factor,
plus the quick violation of probation, constituted substantial and compelling reasons for
departure.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
1
As the Pillar Court noted, it is well settled that probation may not be revoked solely on the
basis that the probationer was arrested. Id.
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
