Imposition of a consecutive rather than concurrent sentence; People v Norfleet (Norfleet I & II); People v Johnson

The court found that the record showed “that the trial court articulated with particularity its rationale for imposing consecutive sentences and that its decision to depart from the heavy presumption in favor of concurrent sentences was within the range of reasonable and principled outcomes.” Thus, it held that the trial court did not abuse its discretion. Defendant was convicted of second-degree arson and third-degree killing or torture of an animal. He was sentenced as a fourth-offense habitual offender to 156 to 360 months for the former and a consecutive term of 46 to 180 months for the latter. On appeal, he challenged the trial court’s imposition of consecutive, rather than concurrent, sentences. Defendant contended “that the trial court abused its discretion by considering elements of the offense ‘already contemplated by the offense statute,’ i.e., the intent to kill or torture the dog, in its rationale for the imposition of consecutive sentences.” He argued “by analogy that, because a trial court cannot ‘base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range’ under MCL 769.34(3)(b) in a sentencing guideline departure analysis, likewise here the trial court should not have been able to contemplate the elements of the offense in its rationale for consecutive sentencing.” The court was not persuaded for several reasons. “First, defendant’s analogy breaks down when one compares the statutes in play.” Second, he failed “to cite any authority that prevents trial courts from considering facts related to an element of the offense in justifying the imposition of consecutive sentences.” Third, it was “clear that the trial court did not base its decision to impose consecutive sentencing solely on an element of the offense. Rather, [it] expressly stated that it was a combination of disturbing facts[.]” The court found that the “trial court’s explanation, which gave ‘particularized reasons” as required by Norfleet I, . . . goes well beyond merely relying on an element of the offense.” The record reflected “that the dog’s death was not merely incidental to the arson; defendant stated his intent to kill [E’s] dog and burn down his house, and when confronted by neighbors said ‘F*** the dog. The crackhead stole my car, so I lit it on fire.’” Thus, sentencing him “to terms of incarceration beyond what would have been imposed for the arson conviction alone is consistent with the goal of discouraging those who commit arson from committing additional crimes such as the one carried out here.” Finally, the court disagreed with his “assertion that the trial court’s explanation did not include particularized reasons specific to the defendant.” Affirmed.