Sentencing; Scoring of OV 19; MCL 777.49(c); People v Steele; People v Smith; Departure sentence; Reasonableness & proportionality; People v Steanhouse; Relevant factors; People v Dixon-Bey

The court held that the trial court did not err in scoring 10 points for OV 19, and that defendant's upward departure sentence was reasonable and proportionate. He pled no contest to embezzlement of $100,000 or more. He was resentenced to 60 to 240 months. As to the OV 19 score, “after the sentencing offense of embezzlement was completed and before resentencing, defendant’s wife engaged in a series of actions designed to intimidate the family members and employees of” the corporation from whom he had embezzled. She used “social media, robocalls, and podcasts to convey that her family was victimized and further alleged that [the corporation] engaged in criminal activity, violated federal law, and essentially engaged in a conspiracy with the prosecution and the court. In jail phone calls with defendant, she shared her plans and played the robocalls for him. [He] generally responded affirmatively to” her actions and encouraged her to continue. The court noted that he “learned that the robocalls were harassing his former coworkers. Yet, he did not seek to stop this conduct for the benefit of his former coworkers or for his own resentencing. The harassing conduct that [he] did not try to stop, but rather encouraged, caused the [] corporation to be publicly maligned. It occurred to such an extent that the corporation” changed its position from not seeking his incarceration to supporting “a lengthy term of imprisonment.” Given the extensive “calls and the trial court’s finding that defendant’s role was one of encouragement and, in essence, delight,” the court could not find that the trial court clearly erred as to OV 19. It also concluded that the trial court adequately explained why the 60-month minimum “was more proportionate than a different sentence within the guidelines range.” It specifically “noted that the guidelines ‘underscored’ white-collar crime, that [they] did not consider a corporation to be a victim, and that the exploitation of the corporation and the effect on its costs to consumers were not factored into the guidelines.” It further noted “that the duration of the embezzlement (nearly six years) and the amount taken (nearly $565,000) was not adequately considered.” Under the circumstances, the court could not conclude that the trial court abused its discretion. Affirmed.