Sentencing; Departure sentence; Reasonableness & proportionality; People v Lydic; Presumption of a nonjail nonprobation sentence; MCL 769.5(3) & (4); People v Mason; Principle that driving while license suspended (DWLS) is not a serious misdemeanor for purposes of MCL 769.5(3); Acquitted conduct; People v Beck

Holding that the trial court failed to address how defendant’s departure sentence was proportionate to her conduct (i.e., driving without a license), the court vacated her sentence and remanded for resentencing. She was convicted of DWLS, second offense, after she failed to produce a valid driver’s license during a traffic stop. The jury found her not guilty of a separate CCW charge. The trial court sentenced her to 93 days in jail, noting she appeared to be “brainwashed” by the “sovereign citizen movement” and referencing the CCW charge. On appeal, the court agreed with defendant that the trial court abused its discretion by departing from the “presumption of a nonjail, nonprobationary sentence for a nonserious misdemeanor conviction” because it did not provide reasonable grounds for the departure sentence. “DWLS is not a serious misdemeanor for purposes of MCL 769.5(3). So, there was a rebuttable presumption that the trial court sentence [her] ‘with a fine, community service, or other nonjail or nonprobation sentence.’” Because it “departed from the presumptive sentence set forth in MCL 769.5(3) when it imposed a sentence of 93 days in jail, it was required to explain on the record ‘why the sentence imposed [was] more proportionate to the offense and the offender than a different sentence . . . would have been.’” The trial court’s statements arguably provided “an explanation for why [it] believed the departure sentence was more proportionate to [defendant] than the presumptive sentence would have been. But, the trial court failed to weigh the seriousness of the offense itself.” Because it “failed to consider the proportionality of the sentence relative to the offense itself, [it] did not adequately justify the departure sentence imposed.” The court also agreed with defendant that, given the repeated references to her CCW charge and its “limited explanation for imposing the departure sentence, it appears that the trial court relied, at least in part, on acquitted conduct when imposing the departure sentence.” But she failed to show that this error affected her substantial rights, and thus, could not meet her burden of showing that the “error prejudiced her by affecting the outcome of sentencing.”