Sentencing; Upward departure; Reasonableness; People v. Lockridge; People v. Steanhouse; Proportionality; People v. Walden; People v. Hendrick; People v. Horn

Holding that under the circumstances, an upward departure of 12 months from the guidelines was not an abuse of discretion, the court affirmed. Defendant pled guilty to domestic violence, third offense, and felonious assault. He was originally sentenced to concurrent sentences of 5 years’ probation and 10 months in jail. Shortly after being released from jail, he was charged with violation of his probation and he pled guilty. The trial court revoked probation and sentenced him to a minimum sentence of 35 months, which was 12 months more than the high end of the guidelines range. It “based its departure on factors not contemplated by the guidelines, and [it] adequately explained why the imposed sentence was proportionate to the offense and offender.” Its reasons for deviating from the guidelines, including his multiple prior domestic violence assaults against his ex-girlfriend (K), were not contemplated by the guidelines. The court “acknowledged that the ‘relationship between the victim and the aggressor’ is not a factor not taken into account by the guidelines.” The trial court scored 10 points for OV 10. “But this OV does not contemplate multiple domestic relationship offenses against the same individual, as noted by the trial court at sentencing. The trial court assessed five points each for OV 1 and OV 2, which contemplate the aggravated use of a weapon and the lethal potential of a weapon possessed or used, respectively.” Neither contemplate multiple violent offenses toward an individual. The trial court also relied on his ‘“material’ probation violation, another factor that is not contemplated by the sentencing guidelines. A trial court may take a probation violation into consideration when resentencing a defendant.” The violation here “was especially concerning because it involved defendant contacting [K] shortly after he was released from jail.” Also, the trial court warned him that a violation of his probation would result in imprisonment. In addition to his repeated victimization of K “and his probation violation, the trial court considered defendant’s criminal record, which included three juvenile offenses and 15 adult misdemeanors, including several alcohol related offenses, disorderly conduct, and malicious destruction of property.” While his “history was taken into consideration by the scoring of the prior record variables, a sentencing court may consider a defendant’s repeated failure at rehabilitation.” The court held that the trial court reasonably held that the imposed sentence was proportional to the circumstances of the offense and the offender. That was, it considered that the case involved re-victimization of K, that the probation violation also pertained to K, and that defendant had a long criminal record not fully reflected in the guidelines.