Above guidelines sentencing; Proportionality; Articulation of the reason for the departure; Consideration of defendant’s pregnancy; Distinguishing People v Hughes (Unpub)

The court agreed in part that defendant-Luna’s above guidelines sentences of 3 to 10 years “violated the principle of proportionality.” Thus, it vacated and remanded for resentencing for the trial court to articulate the rationale for the extent of any departure. Luna pled guilty to possession of meth in two separate cases. She “was initially sentenced to probation for both offenses. One year into her three-year probationary term, Luna was unsuccessfully discharged from mental health court, thereby violating her probation.” The trial court “nearly doubled the top end of the guidelines range for her” meth offenses in imposing the 3 to 10-year sentence. At sentencing, it summarized Officer B’s “report of Luna’s probation violation.” The court requested the report, but it was not available for it to review. The trial court determined that her violations of the terms of her probation warranted a prison sentence. But the court noted that “Luna’s maximum minimum sentence under the guidelines was 17 months which itself would have guaranteed a minimum sentence in prison. In addressing the reasons to depart from the guidelines, the trial court emphasized ‘a term of incarceration was in order’ and that ‘there is no way that she can remain on probation.’ But, again, a sentence within the guidelines would have achieved those disciplinary goals.” The court declined “to sua sponte fill in the gaps” in the trial court’s rationale “because doing so would be contrary to our highly deferential standard of review and to our own jurisprudence.” Luna argued “that her pregnancy should have been considered a mitigating factor, but it was instead treated as aggravating by the trial court.” However, the court found that it appeared the trial court did not treat it as such. This case differed from “Hughes. Here, after issuing a sentence and on its own initiative, the trial court concluded the sentencing hearing with the statement, ‘Let’s hope to God that whatever baby you’re going to have in prison is taken away so that that baby has a chance.’” This did “not appear to have been the rationale for the departure sentence, so it” did not affect the disposition of the appeal. But the court acknowledged “that the comment was inappropriate. Judges should refrain from expressing personal views on a defendant’s parenting when, as was the case here, such a statement is not relevant to the issues before [it], and particularly after a sentence has been imposed.”