Sentencing; Reasonableness of an upward departure from the guidelines; People v Lydic; Relevant factors; People v Dixon-Bey; Rehabilitation potential; People v Copeland; Blood alcohol content (BAC)

Holding that the trial court did not abuse its discretion in imposing an upward departure minimum sentence of 40 months or inadequately consider defendant’s rehabilitation potential, the court affirmed his sentence. He pled no-contest to OWI causing serious injury and failure to use due care when passing a stationary vehicle causing injury to emergency personnel after his vehicle struck two police vehicles and a deputy (P). His guidelines range was 7 to 23 months. In sentencing him to 40 to 60 months for OWI-injury, the trial court “imposed the statutory maximum for that offense. [It] articulated various considerations in imposing this sentence such as defendant’s prior OWI convictions and exhibition of remorse, but” it was clear from its discussion “that the drivers of the departure and its extent were the seriousness of defendant’s offense and the recklessness [he] exhibited in committing that offense, as well as the severity of” P’s injuries. As to the first two factors, the video from another deputy’s bodycam showed “the flashing lights on the police vehicles made apparent their location on the roadway, but defendant (driving with a BAC almost twice the legal limit) began to slow his vehicle only about two seconds before the incident, and then proceeded closely enough to the conspicuous police vehicles such that he could strike them and [P]. The trial court did not clearly err in finding that defendant indeed acted extremely recklessly, without regard to the people or property he encountered. Given this evidence, according greater weight to [his] recklessness and the severity of his offense was not an abuse of discretion.” Also, P sustained “significant injuries to his leg, face, body, and head, and the trial court characterized” them as being such that he might not be able to return to his profession. While his injuries were accounted for to some degree by OVs 3 and 4, the court could not “quarrel with the trial court’s determination that these scores inadequately accounted for the severity and circumstances of defendant’s offense.” P’s extensive injuries required “surgeries and significant physical therapy, [he] was disabled completely from walking for a period of time and at sentencing was using a cane, and was under monitoring for possible additional neurological injuries caused by trauma to his head.”