Sentencing; Proportionality challenge to departure sentences; People v Dixon-Bey; People v Boykin; People v Smith; Acquitted conduct; People v Beck; Consecutive sentencing; MCL 750.110a(8); People v Norfleet (Norfleet I & II)

Finding that defendant failed to show the trial court violated the principle of proportionality or considered his acquitted conduct, the court held that the trial court did not abuse its discretion in imposing departure sentences. Further, it concluded “the trial court gave ample reasons” for imposing consecutive sentences and it was clear that the decision to do so was based only on consideration of the conduct for which he was convicted. Thus, there was also no abuse of discretion in imposing consecutive sentences. He was convicted of first-degree home invasion and conspiracy to commit first-degree home invasion. He was acquitted of first-degree felony murder, assault with intent to rob while armed, armed robbery, and felony-firearm. Departing upward from the guidelines range, the trial court imposed consecutive sentences of 140 to 240 months for each conviction. The court previously affirmed defendant’s convictions but remanded as to sentencing in light of Beck. On remand, the trial court again “departed from the guidelines range, imposing consecutive sentences of 85 to 240 months” for each conviction. In this appeal, he argued that those sentences, a departure from the guidelines recommended minimum range of 36 to 60 months, were “disproportionate and were based in part on the trial court’s improper consideration of acquitted conduct.” The court disagreed. It was unpersuaded that the departure sentences were “disproportionate to the seriousness of the offenses of which defendant was convicted and defendant’s background, or that the sentences were improperly based on acquitted conduct. The trial court’s comments at resentencing made it very clear that it was considering only defendant’s actions in committing a home invasion in the middle of the night of a home occupied by elderly residents, who were asleep, after previously participating in a similar offense against another victim earlier that night, and [it] repeatedly stated that it was not holding defendant accountable for” one victim’s murder. The court held that the trial “court did not clearly err in identifying factors not adequately accounted for in the” guidelines scoring. Further, consecutive sentences were authorized here by MCL 750.110a(8), and the trial court gave “particularized reasons for imposing” them. Affirmed.