Sentencing; Proportionality; Considerations in imposing a departure sentence; People v Dixon-Bey; Mitigating factors; People v Bailey; Effect of the score for PRV 7; Consideration of the number of people threatened by defendant’s messages; OV 9; People v Carrigan

The court held that the trial court did not abuse its discretion in exceeding the guidelines by 19 months in sentencing defendant-Murray, concluding that the “sentence was proportionate to the seriousness of the circumstances surrounding the offense and the offender.” He was convicted of attempted false report of terrorism, use of a computer to commit a crime, and possession of meth. He was sentenced to 30 months to 5 years for the attempt offense, 30 months to 10 years for one of the using a computer to commit a crime counts, 30 months to 7 years for a second count of that offense, and 2 to 10 years for meth possession. He first argued that “the trial court did not adequately consider mitigating factors, including his lack of criminal history, strong employment history, and letters of support indicating his good character. However,” the court noted that “the trial court expressly considered [his] mitigating factors, but did not find—and was not required to find—that they weighed in favor of a lesser sentence.” He next contended that it erred in “considering dismissed conduct when fashioning his sentence. The trial court considered the ‘disturbing’ child-sexually abusive material found in Murray’s apartment[.]” Because he “was not charged with or acquitted of possession of child-sexually abusive materials, such evidence amounted to uncharged conduct that the trial court had discretion to consider when fashioning a proportional sentence.” He also claimed that it “erred by using facts already considered by the” guidelines to justify the departure sentences, citing his PRV 7 score. But the trial “court was free to determine that the guidelines, as scored, were given inadequate weight and did not accurately reflect the seriousness of the crime.” It determined “that the guidelines did not consider, or insufficiently considered, the serious nature of Murray’s offenses. As [it] noted, [he] communicated ‘very sexually graphic, aggressive and violent statements of [his] intentions and strong desire to sexually assault children.’” Finally, the court held that “the trial court did not abuse its discretion by considering the number of students and teachers who were threatened, as a ‘factor[] not considered by the guidelines’ . . . .” Among other things, under “Carrigan, OV 9 could not account for the number of students and teachers at the elementary school who were threatened when Murray stated he would ‘shoot up’ an elementary school with an automatic rifle.”