Sentencing; Plea bargain; Proportionality of an upward departure sentence; People v Dixon-Bey; Consideration of the nature of a plea bargain & the charges that were dismissed; People v Coulter (After Remand); Scoring of OV 10; “Predatory conduct”; MCL 777.40(1)(a); Scoring of OV 13 (continuing patterns of criminal behavior); MCL 777.43(1); Mitigating factors; People v Bailey; Presentence investigation report (PSIR)

The court held that the trial court “provided adequate justification to explain why the upward departure was proportionate to the offense and the offender.” Defendant pled no contest to CSC III in exchange for the dismissal of CSC I and II charges that arose out of his repeated sexual abuse of a young victim. The trial court sentenced him to 60 months to 15 years. On appeal, the court rejected his argument that his sentence was disproportionate. “The trial court properly relied on [his] plea agreement and the nature of the charges that were dismissed.” He received “an enormously beneficial plea agreement.” By pleading “no contest to a less severe charge than” CSC I, he “avoided a potential 25-year mandatory minimum sentence and mandatory lifetime electronic monitoring. The sentence imposed was” 1/5 as severe as the mandatory minimum, and 1/2 “of the amount of time that the plea agreement indicated would be the maximum amount of incarceration on the low end of [his] indeterminate sentence range.” Further, applying “the proportionality factor that considers the seriousness of defendant’s offense,” the court found his “pattern of penetrating the victim, a child under the age of 13 at the time of the assaults, when she was asleep established the seriousness of the offense and the gravity of” his behavior. “The record overwhelmingly supports the trial court’s determination to impose the upward departure.” The court also rejected his claim that the trial court erred by basing its decision to depart on his predatory conduct because the guidelines already accounted for it under OV 10. It noted “the ‘predatory conduct’ contemplated by OV 10 was not the predatory conduct the trial court considered in support of its decision to impose an upward departure.” The court next rejected his contention that the trial court erred by basing its decision to depart upward on the amount of times he committed the offense because the guidelines already accounted for the number of offenses committed under OV 13. The “trial court relied on the fact that the guidelines did not account for the number of offenses committed as calculated under the plea agreement.” As to his argument about mitigating factors, the court agreed with the trial court that these factors, “given the seriousness of defendant’s conduct toward the victim, did not outweigh the aggravating factors supporting the minimum sentence” imposed. Finally, the court rejected his claim that the trial court improperly speculated on the effect of his abuse on the victim. The trial court could reasonably infer from the PSIR, “and drawing upon its experience with similar cases, that a victim under 13 years old who was subjected to sexual abuse for several consecutive months . . . would suffer negative emotional or psychological effects.” Affirmed.