State v Brynn (OWI 3rd Departure Sentencing)

When a trial court departs from the sentencing guidelines we must evaluate not only whether reasons exist to support departure, but also whether the extent of the departure satisfies the principle of proportionality. As the Milbourn Court noted, the extent of a departure may constitute a violation of the principle of proportionality because "[t]oo frequently reasons are given for a sentence that apply equally to a lesser or greater sentence unless an explanation is offered on the record for the specific sentence given." Milbourn, 435 Mich at 659-660 (quotation marks and citation omitted; emphasis in original). Thus, "[a] sentence cannot be upheld when the connection between the reasons given for departure and the extent of the departure is unclear." People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Accordingly, to aid appellate review, a trial court must explain "why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been." Id. at 311. In this case, the trial court failed to articulate why the minimum sentence of 18 months' imprisonment was more proportionate under the circumstances than a different sentence would have been. Accordingly, we must vacate defendant's departure sentence and remand for resentencing. See Steanhouse, 500 Mich at 476.