Sentencing; Upward departure; Proportionality

Concluding that the trial court failed to adequately justify the significant upward departure from the sentencing guidelines, the court affirmed defendant’s convictions, vacated his sentences for the assault convictions, and remanded to the trial court for resentencing. He pled no contest to AWIM and felony-firearm for shooting his two-year old son and attempting to shoot the child’s mother. He was sentenced to 35 to 55 years for each assault conviction, to be served concurrently and 2 years “for each felony-firearm conviction, to be served concurrently, but consecutively to the sentence for the assault convictions.” Defendant contended “that his minimum sentence of 35 years for the assault convictions, at nearly double the high end of the minimum sentencing guidelines range of 225 months, was an unreasonable and disproportionate upward departure, which the trial court failed to adequately justify.” The sentencing guidelines for his “assault convictions indicated a minimum sentence range of 135 to 225 months.” The trial court then sentenced him to 35 years to life for the assault convictions. “Shortly after stating the sentence, the trial court returned to the record to alter defendant’s maximum sentence to 55 years instead of life. The minimum sentence of 35 years (420 months) is an upward departure of 195 months from the maximum minimum range of the guidelines of 225 months.” The court held that although “the trial court accurately observed that defendant committed a horrendous crime, the trial court did not adequately justify its significant departure from the sentencing guidelines; . . . the trial court was required to explain ‘why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been.’” The court found that the “trial court’s justification of its departure sentence amounted to nothing more than a recitation of the facts surrounding the shooting and its aftermath, which standing alone is not sufficient to justify the substantial departure from the sentencing guidelines. The trial court failed to justify the departure sentence in sufficient detail to facilitate appellate review, which requires that [it] reference the guidelines and explain why they are inadequate to capture the seriousness of this offense.” The court determined that this “failure adequately to support its departure from the sentencing guidelines [was] an abuse of its discretion necessitating resentencing." It retained jurisdiction.