PEOPLE OF MI V PAUL CHESTER GAGNIER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 2009
Plaintiff-Appellee,
v
No. 281867
Oakland Circuit Court
LC No. 2007-212601-FC
SHELLY KAY LAIDLAW,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 281868
Oakland Circuit Court
LC No. 2007-212596-FC
PAUL CHESTER GAGNIER,
Defendant-Appellant.
Before: Murray, P.J., and Gleicher and M.J. Kelly, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I concur with the majority’s resolution of all issues, except whether the trial court’s
departures from the sentencing guidelines qualify as proportionate. Because the trial court failed
to articulate any basis for the extent of the departures, independent of the reasons invoked in
support of the departures, I believe that the trial court should resentence both defendants.
A defendant’s “appropriate sentence range is determined by reference to the principle of
proportionality; it is a function of the seriousness of the crime and of the defendant’s criminal
history.” People v Babcock, 469 Mich 247, 264; 666 NW2d 231 (2003). “The ‘principle of
proportionality … defines the standard against which the allegedly substantial and compelling
reasons in support of departure are to be assessed.’” People v Smith, 482 Mich 292, 304; 754
NW2d 284 (2008), quoting Babcock, supra at 262. In Smith, our Supreme Court emphasized
that “the very purpose of the sentencing guidelines is to facilitate proportionate sentences.” Id. at
305. And when a trial court departs from the sentence calculated under the sentencing
guidelines, “the trial court must explain why the sentence imposed is more proportionate than a
sentence within the guidelines recommendation would have been.” Id. at 304. This Court may
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not uphold a sentence when “the connection between the reasons given for departure and the
extent of the departure is unclear.” Id.
With regard to defendant Shelly Laidlaw, the trial court failed to offer an explanation for
its decision to impose a minimum sentence more than double that calculated under the
guidelines.1 According to the sentencing guidelines, Laidlaw’s minimum sentence range fell
between 7 and 46 months. The trial court sentenced Laidlaw to a term of imprisonment between
96 and 240 months. The 96-month minimum sentence range well exceeds the upper limits of the
sentencing grid for Class E felonies like third-degree fleeing or eluding a police officer, MCL
750.479a(3). Consequently, Laidlaw’s sentence constitutes a substantial departure from the
recommended minimum sentence range, and enters a sentencing realm that the Legislature
reserved for the most egregious Class E offenses and the most hardened criminals. Babcock,
supra at 263.
Because the trial court offered no explanation how the extent of the departure was
proportionate to the nature of the offense and Laidlaw’s background, I believe that the court
should resentence Laidlaw. Her crime and her extensive history of convictions, primarily
misdemeanors, support an upward departure. But just as this Court may not substitute its own
reasons for a sentence departure, Babcock, supra at 258-261, Smith counsels that appellate courts
must refrain from justifying the extent of a departure when the sentencing court has failed to do
so. Id. at 318. An appellate court simply cannot substitute its own judgment regarding the extent
of a departure for that of the trial court. Id. at 304.
The trial court sentenced defendant Paul Gagnier to a term of 20 to 40 years’
imprisonment (240 to 480 months), despite that application of the guidelines yielded a minimum
sentence range between 43 and 172 months, after enhancement for Gagnier’s status as a fourth
habitual offender. As in Laidlaw’s case, the trial court entirely neglected to articulate any
rationale for the extent of the sentence departure it imposed. Although I agree that substantial
and compelling reasons existed for an upward departure of Gagnier’s sentence, I respectfully
disagree with the majority’s innovative mathematical effort to create proportionality in the face
of a record lacking this justification. The majority suggests that an appellate court may
manufacture proportionality by imagining that the trial court scored additional points for an
offender’s prior record or offense variables. In my view, this method of blatantly bypassing the
rules set forth in Smith serves to nullify the Legislature’s determination of proportionate
sentences. Our Legislature
has subscribed to [the] principle of proportionality in establishing the statutory
sentencing guidelines. Under the guidelines, offense and prior record variables
1
The majority opines that Laidlaw “has not challenged the degree of the trial court’s departure . .
. .” Ante at 2 n 2. I respectfully disagree. Laidlaw’s brief on appeal asserts that her prior
convictions “did not warrant a sentence that was more than twice the top level of the guidelines.”
The prosecutor interpreted Laidlaw’s appeal as stating a proportionality claim, and briefed this
issue. In my view, this Court should address proportionality both because the issue has been
preserved, and because the extent of the sentence departure raises serious concerns about its
proportionality.
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are scored to determine the appropriate sentence range. … Therefore, the
appropriate sentence range is determined by reference to the principle of
proportionality; it is a function of the seriousness of the crime and of the
defendant’s criminal history. [Babcock, supra at 263-264.]
In my view, neither this Court nor a trial court has the authority to refashion the legislative point
system to justify a sentence falling well outside the statutorily prescribed range.
I would remand for resentencing so that the trial court may articulate on the record why
the particular degrees of departure selected in both defendants’ cases are warranted.
/s/ Elizabeth L. Gleicher
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