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CRIMINAL LAW 12: Trial court departed upwards from the sentencing guidelines.

In this case, defendant was found to be in possession of marijuana while confined at the County Jail. Another inmate told a corrections officer that defendant had offered her marijuana. The other inmate also overhead defendant’s phone call with a bond agent, where defendant asked the agent to get her out of jail because she had marijuana in her pocket.

Sentencing Guidelines

On appeal, defendant’s sole argument is that the trial court abused its discretion by departing upwards from the sentencing guidelines range of 0 to 17 months and sentencing defendant to serve 30 to 60 months’ imprisonment.

A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.  The relevant question for appellate courts reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the principle of proportionality.

Factors that may be considered by a trial court under the proportionality standard include, but are not limited to: (1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as 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.

Factors in Support of Sentencing Departure

The trial court in this case articulated several factors in support of its imposition of a departure sentence.

First, the court noted that defendant had other charges that were dismissed by the prosecutor as part of a plea bargain when defendant pleaded guilty to the current charge. In this case, the trial court noted that felony charges of furnishing contraband to a prisoner and absconding bond had been dismissed pursuant to the plea agreement.

Second, the trial court noted that the grid under which defendant was sentenced, accounts for a total of only 16 offense variable (OV) points, whereas defendant’s total OV score in this case was 26 points.

The trial court properly explained why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been.  The court concluded that the sentence imposed was proportionate to the seriousness of the circumstances surrounding the offense and the offender.

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