5.8Appellate Review¹

Both within-guidelines and out-of-guidelines sentences are reviewed for reasonableness. People v Posey, 512 Mich 317, 352 (2023);² People v Lockridge, 498 Mich 358, 392 (2015). A sentence is unreasonable if it violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630, 636 (1990).³ People v Steanhouse (Steanhouse II), 500 Mich 453, 459-460, 473 (2017). The principle of proportionality requires a sentence “to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 460 (quotation marks and citation omitted). Whether a sentence is reasonable is reviewed for an abuse of discretion. Id. at 459-460.⁴ “Resentencing will be required when a sentence is determined to be unreasonable.” Lockridge, 498 Mich at 392.

A.Proportionality Test

A sentence is proportionate when it reflects the seriousness of the circumstances surrounding the offense and the offender’s criminal history. People v Milbourn, 435 Mich 630, 636 (1990).

In Steanhouse I, the Court of Appeals noted that under Milbourn, departures from the advisory judicial guidelines then in effect were appropriate “‘where the guidelines do not adequately account for important factors legitimately considered at sentencing.’” People v Steanhouse (Steanhouse I), 313 Mich App 1, 45 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),⁵ quoting Milbourn, 435 Mich at 657. Accordingly, an out-of-guidelines sentence should be imposed when “‘the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.’” Steanhouse I, 313 Mich App at 45, quoting Milbourn, 435 Mich at 657.

“Factors that may be considered by a trial court under the proportionality standard include, but are not limited to:

•‘the seriousness of the offense;

•factors that were inadequately considered by the guidelines; and

•factors not considered by the guidelines[.]’” People v Walden, 319 Mich App 344, 352 (2017), quoting Steanhouse I, 313 Mich App at 46 (bullets substituted for numerals).

Some examples of factors not considered by the guidelines include “the relationship between the victim and the aggressor, the defendant’s misconduct while in custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation.” Walden, 319 Mich App at 352-353 (quotation marks and citation omitted). See also Steanhouse I, 313 Mich App at 46; People v Houston, 448 Mich 312, 321-324 (1995); Milbourn, 435 Mich at 660-661.⁶

“[A] trial court must explain its reasons for opting to double the authorized sentencing terms under MCL 333.7413(1) in order to facilitate appellate review of that discretionary decision, and . . . appellate review of that decision must consider whether the decision fell within the range of reasonable and principled outcomes.” People v Hines, ___ Mich App ___, ___ (2025). “[T]he existence of previous drug-related convictions is what opens the door to discretionary doubling under MCL 333.7413(1) and will therefore be true in every case involving this issue, [so] that fact alone is an insufficient basis to double the authorized sentence terms.” Hines, ___ Mich App at ___. “Instead, the rationale for doing so would need to be specific to the seriousness of the circumstances surrounding the offense and the offender.” Id. at ___ (quotation marks and citation omitted). In this case, “[defendant] was convicted on each count submitted to the jury: one count of possession with intent to deliver methamphetamine, one count of possession with intent to deliver less than 50 grams of fentanyl, and one count of possession with intent to deliver imitation controlled substances.” Id. at ___. The trial court sentenced defendant “to 114 to 480 months’ imprisonment for the fentanyl conviction.” Id. at ___. Defendant’s “unenhanced statutory maximum sentence was 20 years,” but “[t]he trial court increased it to 40 years.” Id. at ___. Citing People v Norfleet, 317 Mich App 649, 662-666 (2016), defendant argued that he was “entitled to resentencing because the trial court failed to sufficiently articulate its reasons for exercising its discretion under MCL 333.7413(1) or otherwise explain why its chosen sentence was proportionate.” Hines, ___ Mich App at ___. “Norfleet observed that appellate review of sentences imposed by the trial court must ensure that the sentences imposed comply with the principle of proportionality outlined in People v Milbourn, 435 Mich 630 (1990).” Hines, ___ Mich App at ___ (quotation marks omitted). The Hines Court agreed that “the principles outlined in Norfleet apply to discretionary sentencing decisions under MCL 333.7413(1).” Hines, ___ Mich App at ___. However, it noted that “[t]here is no binding authority extending Norfleet’s analysis to the discretionary doubling of the authorized sentence term under MCL 333.7413(1) or directly addressing how exercise of such discretion should be reviewed.” Hines, ___ Mich App at ___. The Michigan Supreme Court implicated the issue in a two-justice concurrence in People v Kuieck, 507 Mich 1002 (2021) (Cavanagh, J., concurring), explaining that “[t]he statute states that an individual convicted of a second or subsequent drug-related offense . . . may [be] imprisoned for a term not more than twice the term otherwise authorized.” Hines, ___ Mich App at ___ (cleaned up). “Therefore, a defendant’s prior drug-related conviction allows, but does not require, a trial judge to double a sentence, leaving the decision to the sentencing judge’s discretion.” Id. at ___ (quotation marks and citation omitted). In this situation, the concurrence continued, “the sentencing court would be required to set out the reasons for its decision to impose a double sentence.” Id. at ___ (quotation marks and citation omitted). “[T]he rationale for doing so would need to be specific to the seriousness of the circumstances, surrounding the offense and the offender.” Id. at ___ (quotation marks omitted and citation omitted). Here, “[t]he trial court’s reasoning did not fall outside the range of reasonable and principled outcomes because it involved the specifics of [defendant’s] offense and personal circumstances.” Id. at ___ (concluding “that the trial court sufficiently articulated its reasoning for doubling [defendant’s] statutory maximum sentence.” Id. at ___.

“Under the principle of proportionality, [defendant] was entitled to be sentenced in a manner that duly accounted for the individualized circumstances of the offender and offense.” People v Eads, ___ Mich App ___, ___ (2025). “[A]s [Miller v Alabama, 567 US 460 (2012)] and its progeny have now made clear, such circumstances include mitigating considerations related to [a defendant’s] youth. Eads, ___ Mich App at ___.⁷ In this case, defendant “was found guilty of second-degree murder and possession of a firearm during the commission of a felony (felony-firearm) for crimes he committed as a juvenile. Id. at ___ (citations omitted). “The trial court sentenced [defendant] as an adult and, departing upward from the guidelines, imposed consecutive terms of 50 to 75 years’ imprisonment for second-degree murder and two years’ imprisonment for felony-firearm.” Id. at ___. Defendant, “despite his juvenile status and all that has now been recognized to come with it, received a sentence for second-degree murder that would require him to outlive his life expectancy before even becoming eligible for parole and would deny him a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at ___. After Miller and the enactment of MCL 769.25a, a defendant convicted of first-degree murder as a juvenile was entitled “to resentencing such that he or she, by default, could not receive a term-of-years sentence with a minimum higher than 40 years or a maximum higher than 60 years.” Eads, ___ Mich App at ___. In Eads, defendant received “a minimum sentence 10 years higher and a maximum sentence 15 years higher than [MCL 769.25a(4)(c)’s] upper limits—for committing a lesser offense as a juvenile.” Eads, ___ Mich App at ___. “[I]ronically, [defendant] fared worse than he would have if the jury had convicted him of [first-degree murder].” Id. at ___. The trial court “openly acknowledged that [defendant’s] background and the circumstances of the murder demonstrated that [defendant] was immature and impulsive, lacked discipline and self-restraint, and had been negatively influenced by gang members from a young age.” Id. at ___. “Such observations reflect the very characteristics of youth that a sentencing court must consider as potentially mitigating the sentencing offense.” Id. at ___ (quotation marks omitted). Here, the trial court “dismissed the very notion that such characteristics might have a mitigating effect and instead considered them as aggravating factors in support of a significant departure sentence—an approach plainly contrary to Miller and its progeny.” Id. at ___. Accordingly, defendant’s term-of-years sentence is “disproportionate given the sentencing court’s failure to consider [defendant’s] youth and its attendant characteristics as mitigating factors.” Id. at ___.

The proportionality of a defendant’s sentence is considered separately and not in reference to any consecutive or concurrent mandatory sentence; accordingly, where a defendant is sentenced to multiple consecutive terms of imprisonment, the proportionality of the sentence is not determined by the cumulative effect of the defendant’s sentences. People v Miles, 454 Mich 90, 94-95 (1997).

A trial court is not required to consider a codefendant’s sentence when imposing sentence on another codefendant; that is, each individual convicted of a crime, when more than one individual participated in the same crime, is not entitled to receive a sentence similar to the sentences received by other participants. People v Colon, 250 Mich App 59, 64 (2002).

See also the Michigan Judicial Institute’s the Articulation of Reasons for Out-of-Guidelines Sentence sample form.

B.Presumptions

There is no presumption of unreasonableness for sentences outside the guidelines range. People v Steanhouse (Steanhouse II), 500 Mich 453, 474-475 (2017) (while “the guidelines remain a highly relevant consideration in a trial court’s exercise of sentencing discretion, . . . the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range”) (quotation marks and citations omitted). However, within-guidelines sentences are subject to a nonbinding rebuttable presumption of proportionality that the defendant bears the burden of rebutting. People v Posey, 512 Mich 317, 360 (2023) (Justice Welch agreed with this remedy). See also People v McFarlane, 325 Mich App 507, 538 (2018) (rejecting defendant’s argument that his sentence was “not proportionate and amounted to cruel and unusual punishment,” and holding that when a sentence is presumptively proportionate, the defendant has the burden to rebut the presumption by showing “that there was something unusual about the circumstances of [the] case that made the sentence disproportionate”); People v Purdle, ___ Mich App ___, ___ (2024) (rejecting defendant’s argument that his race and age at the time of sentencing rendered his within-guidelines sentence disproportionate and holding “[t]he seriousness of his offense is not lessened by [defendant’s] age and race when he was sentenced”).

In People v Posey (On Remand), ___ Mich App ___, ___ (2023), the Court conducted a reasonableness review of the defendant’s within-guidelines sentence. The Court summarized the legal framework governing such a review, stating “reasonableness review requires a determination whether a sentence was proportionate,” and that under the presumption of proportionality, “a within-guidelines sentence is not binding on the Court of Appeals,” and “the defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate[.]” Id. at ___ (quotation marks and citations omitted). The Court concluded the defendant’s sentence was reasonable, and rejected the defendant’s argument that the sentence was “inherently unreasonable because the trial court did not deviate from those sentences after the guidelines range had been lowered by the court.”⁸ Id. at ___. The Court explained “[t]here is no supporting legal authority for the proposition that if a guidelines range is lowered, a trial court is mandated to also lower the minimum sentence on resentencing to render the sentence reasonable.” Id. at ___. Further, because the defendant bears the burden to demonstrate that the sentences were unreasonable and disproportionate, the trial court was not required to further explain its reasoning where it already noted “that defendant had committed the same crime for which he was on parole and . . . had used a firearm.” Id. at ___ (noting “[t]his was a powerful reason for imposing a minimum sentence of 22 years’ imprisonment given the patently serious nature of the [assault with intent to commit murder] offenses,” and that “there is nothing in [the Supreme Court’s decision in] Posey suggesting that a sentencing court needs to expressly explain why a within-guidelines sentence is reasonable and proportionate”).

The defendant failed “to present any unusual circumstances sufficient to overcome the presumption of proportionality” for his within-guidelines 22-year sentence where he received a harsher sentence than his codefendants. People v Ventour, ___ Mich App ___, ___ (2023). The defendants’ codefendants both pleaded guilty and received a 21-year sentence and a 16-year sentence; the Court noted that while “a sentencing court cannot base its sentence on a defendant’s decision to exercise his constitutional right to a jury trial,” a sentence “is not necessarily unconstitutional where it is higher following a trial than had he taken a plea.” Id. at ___ (cleaned up). The Court concluded that there was no sentencing error where the trial court explained its imposition of a sentence near the top of the guidelines range and its “reasons for the different sentences.” Id. at ___. The trial court noted the codefendants’ sentences, and explained that the evidence demonstrated that defendant was “the conductor of everything that happened that day.” Id. at ___ (cleaned up). The Court concluded that the sentencing court’s “conduct at sentencing demonstrates that it thoroughly considered the circumstances of the offense and the applicable guidelines range to determine an appropriate penalty,” and “[t]he record does not support defendant’s claim that the trial court imposed a harsher sentence to punish him for exercising his right to a jury trial, or that his sentence is disproportionate or unreasonable because it is longer than the sentences received by the codefendants.” Id. at ___.

Defendant’s contention that “his minimum sentence [was] the equivalent of a death sentence when considered in light of the life expectancy of African American men, both in general and in Michigan’s prisons” did not establish that defendant’s sentence was disproportionate. People v Purdle, ___ Mich App ___, ___ (2024). “‘[T]he defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate.’” Id. at ___ (quoting Posey (On Remand), ___ Mich App at ___). The defendant received a within-guidelines sentence of 680 to 960 months’ incarceration for a second-degree murder conviction. Purdle, ___ Mich App at ___. The Court noted that “[t]he seriousness of his offense [was] not lessened by [defendant’s] age and race when he was sentenced for murdering [the victim].” Id. at ___. The Court further explained that the defendant’s criminal history demonstrated “‘an unwillingness to obey the law after prior encounters with the criminal justice system’ and that in light of his recidivism a greater punishment [was] reasonable.” Id. at ___ (quoting People v Milbourn, 435 Mich 630, 668 (1990).

C.Additional Appellate Considerations for Out-of-Guidelines Sentences

“‘Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality.’” People v Steanhouse (Steanhouse I), 313 Mich App 1, 45-46 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),⁹ quoting People v Milbourn, 435 Mich 630, 659-660 (1990).

“[R]eliance solely on a trial court’s familiarity with the facts of a case and its experience in sentencing cannot ‘effectively combat unjustified disparity’ in sentencing because it construes sentencing review ‘so narrowly as to avoid dealing with disparity altogether[.]’” People v Dixon-Bey, 321 Mich App 490, 530 (2017), quoting Milbourn, 435 Mich at 647.

Appellate courts may take the extent of a departure into account when determining reasonableness, and they must “use the sentencing guidelines as an aid when doing so assists in determining whether a sentence is proportionate.” Dixon-Bey, 321 Mich App at 531.

D.Record on Appeal

When appealing a sentence under MCL 769.34, the appeal record must include:

•an entire record of the sentencing proceedings, MCL 769.34(8)(a);

•the defendant’s presentence investigation report (PSIR), MCL 769.34(8)(b); MCR 7.212(C)(7);¹⁰ and

•any other reports or documents the sentencing court used in imposing sentence, MCL 769.34(8)(c).

See also People v Callon, 256 Mich App 312, 332 (2003) (noting the defendant failed to perfect his sentencing appeal by failing to file a copy of the PSIR and any other reports or documents relied on by the sentencing court as required by MCL 769.34).

E.Review of Guidelines Scoring

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438, 438 n 18 (2013) (citing People v Osantowski, 481 Mich 103, 111 (2008), and noting that, contrary to several Court of Appeals decisions, “[t]he ‘any evidence’ standard does not govern review of a circuit court’s factual findings for the purposes of assessing points under the sentencing guidelines”) (additional citations omitted). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438, citing People v Babcock, 469 Mich 247, 253 (2003).¹¹

“[T]he ‘right result—wrong reason’ doctrine . . . [cannot] be employed to allow impermissible appellate fact-finding” in reviewing the propriety of an OV score; “[a] trial court determines the sentencing variables by reference to the record, not [the Court of Appeals].” People v Thompson, 314 Mich App 703, 712 n 5 (2016) (where “the trial court assessed 50 points for OV 7 solely on the basis of sadistic behavior, . . . [i]t would not be appropriate for [the Court of Appeals] to consider whether” the score would nevertheless have been appropriate on the alternative basis that the “defendant’s conduct was designed to substantially increase the victim’s fear and anxiety”) (quotation marks and citations omitted). See also People v Gloster, 499 Mich 199, 209-210 (2016) (holding that the trial court erred as a matter of law in scoring OV 10 solely on the basis of the conduct of the defendant’s co-offenders, and that the Court of Appeals additionally “erred by concluding that the trial court’s scoring of OV 10 was supported by defendant’s own conduct”; “[b]ecause the trial court did not itself find that defendant’s own conduct was predatory in nature, the Court of Appeals failed to review the trial court’s findings for clear error as required by [Hardy, 494 Mich at 438]”) (emphasis added).

F.Unpreserved Sentencing Issues

Unpreserved sentencing errors are reviewed for plain error affecting substantial rights. People v Lockridge, 498 Mich 358, 392 (2015). “To establish entitlement to relief under plain-error review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial rights.” Id. at 392-393. For claims of constitutional error in the scoring of the guidelines under Lockridge, see Section 5.9.

G.Waiver

“A defendant waives appellate review of proportionality when he has agreed to a sentence provided in the plea agreement.” People v Guichelaar, ___ Mich App ___, ___ (2023). This is true even when a defendant does not agree to a specific sentence and instead enters “into an understanding a voluntary plea to be sentenced to a minimum term” within a specified range. Id. at ___. Further, when the sentencing agreement is “not contingent on its relationship to the sentencing guidelines” the defendant effectively agrees “to the proportionality and reasonableness of sentences within his sentencing range even if they [fall] outside of the guidelines calculated at sentencing.” Id. at ___.

H.Sentence Must Be Authorized By Law or Rule

“[T]he trial court imposed a sentence unauthorized by law and violated the prohibition against cruel or unusual punishment when it ordered as a condition of [defendant’s] sentence that he have no contact with individuals outside prison except for legal counsel. People v Lafey, ___ Mich App ___, ___ (2024) (citation omitted). “When a trial court imposes a no-contact order as a condition of sentence, it must be authorized to do so either by statute or inherent authority.” Id. at ___. “‘A judge of a court having jurisdiction may pronounce judgment against and pass sentence upon a person convicted of an offense in that court.’” Id. at ___, quoting MCL 769.1(1). However, “‘[t]he sentence shall not exceed the sentence prescribed by law.’” Lafey, ___ Mich App at ___, quoting MCL 769.1(1). While “there is some support for the proposition that courts have the inherent authority to impose a limited no-contact order as a condition of sentence . . . ,” there is “no support for the proposition that they have inherent authority to broadly prohibit contact with all individuals outside of prison . . . as an additional punitive measure.” Lafey, ___ Mich App at ___.