PEOPLE OF MI V BRANDON TIRRELL ROBBS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 8, 2009
Plaintiff-Appellee,
v
No. 282124
Wayne Circuit Court
LC No. 07-007148-FH
BRANDON TIRRELL ROBBS,
Defendant-Appellant.
Before: Zahra, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
After a jury trial, defendant Brandon Tirrell Robbs was convicted of attending a dogfight,
MCL 750.49(2)(f). The trial court departed from the sentencing guidelines range of zero to six
months and sentenced defendant to one to four years’ imprisonment. Defendant appeals as of
right. We affirm. This appeal has been decided without oral argument pursuant to
MCR 7.214(E).
Attending a dogfight is a Class H crime against public order subject to the statutory
sentencing guidelines. MCL 777.16b. Defendant’s sentencing guidelines range was zero to six
months. MCL 777.69. When the upper limit of the applicable guidelines range is 18 months or
less, “the court shall impose an intermediate sanction unless the court states on the record a
substantial and compelling reason to sentence the individual to the jurisdiction of the department
of corrections.” MCL 769.34(4)(a). An intermediate sanction is “probation or any sanction,
other than imprisonment in a state prison or state reformatory, that may lawfully be imposed.”
MCL 769.31(b). “An intermediate sanction may include a jail term that does not exceed the
upper limit of the recommended minimum sentence range or 12 months, whichever is less,”
MCL 769.34(4)(a), but it does not include a prison sentence. People v Stauffer, 465 Mich 633,
635; 640 NW2d 869 (2002). Thus, the guidelines permitted no more than a six-month jail
sentence unless the court found a substantial and compelling reason to depart from the
guidelines. People v Muttscheler, 481 Mich 372, 375; 750 NW2d 159 (2008). The court elected
to depart from the guidelines, finding that they did not account for the nature and severity of the
offense or for defendant’s probationary status.
“[T]he Legislature intended ‘substantial and compelling reasons’ to exist only in
exceptional cases.” People v Fields, 448 Mich 58, 68; 528 NW2d 176 (1995). Only objective
factors that are capable of verification may be used to assess whether there are substantial and
compelling reasons to deviate from the minimum sentence range under the guidelines. People v
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Babcock, 469 Mich 247, 256-257; 666 NW2d 231 (2003). Objective and verifiable factors are
“actions or occurrences that are external to the minds of the judge, defendant, and others
involved in making the decision, and must be capable of being confirmed.” People v Abramski,
257 Mich App 71, 74; 665 NW2d 501 (2003). A departure is appropriate “if there are substantial
and compelling reasons that lead the trial court to believe that a sentence within the guidelines
ranges is not proportionate to the seriousness of the defendant’s conduct and to the seriousness of
his criminal history,” such that a departure would result in “a more proportionate criminal
sentence than is available within the guidelines range.” Babcock, supra at 264.
On appeal, we review the existence of a reason for departure for clear error. People v
Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). “The conclusion that a reason is objective
and verifiable is reviewed as a matter of law.” Id. Whether the reasons cited by the court “are
substantial and compelling enough to justify the departure is reviewed for an abuse of discretion,
as is the amount of the departure.” Id. An abuse of discretion occurs “when the minimum
sentence imposed falls outside the range of principled outcomes.” Id.
Defendant’s offense variables (OV) were all scored at zero points and, thus, these
variables did not take into account the injuries incurred by any of the dogs, presumably because
dogs are considered property rather than crime victims.1 At least one dog sustained puncture
wounds and two other dogs were shot when they turned on the police. The guidelines did not
account for the mistreatment of the animals, nor did they adequately account for defendant’s
conduct, which involved turning a blind eye to the suffering of the animals for the sake of
entertainment. Further, although the guidelines accounted for defendant’s youthful trainee status
at the time of the offense, they did not account for the fact that defendant violated his probation
by committing the offense. See People v Schaafsma, 267 Mich App 184, 186; 704 NW2d 115
(2005) (“[T]he offender’s probation violation itself is an objective and verifiable factor worthy of
independent consideration.”). Therefore, the trial court articulated objective and verifiable
factors that warranted the departure from the guidelines.
Affirmed.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
1
Defendant contends that OV 3 (physical injury to victim) was not intended to apply to crimes
against public order and, therefore, the fact that it may not have adequately accounted for the
nature of the offense cannot be a basis for departure. Contrary to what defendant argues,
MCL 777.22(4) clearly states that OV 3 is one of the offense variables to be scored for crimes
against public order.
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