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March 9, 2026 Get Citation Alerts Download PDF Add Note

People of Michigan v. Steven Russell Brcic

Michigan Court of Appeals

• Citations: None known

• Docket Number: 362727

• Opinion

• Authorities (34)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.4K)

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Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
March 09, 2026
Plaintiff-Appellee, 9:46 AM

v Nos. 362727; 366230
Cheboygan Circuit Court
STEVEN RUSSELL BRCIC, LC Nos. 22-006325-FH; 20-
006006-FH
Defendant-Appellant.

Before: ACKERMAN, P.J., and YOUNG and KOROBKIN, JJ.

YOUNG, J.

In these consolidated cases, defendant, Steven Russell Brcic, appeals as of right his
convictions and sentences for prisoner in possession of a weapon (PPW), MCL 801.262(2), and
for operating while intoxicated third offense (OWI-3rd), MCL 257.625(1)(a) and (9)(c). In both
cases, we affirm Brcic’s convictions. However, because Brcic’s within-guidelines sentence for
PPW is disproportionate and his OWI-3rd sentence, a sentence nearly four times the maximum
minimum in the guidelines without adequate explanation, is also disproportionate, we vacate his
sentences and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 14, 2020, Officer Noah Morse was responding to a larceny complaint unrelated to
this case at a Walmart in Cheboygan County. A Walmart employee asked Morse to check on
Brcic, who “couldn’t stand up straight and was kind of acting funny” near the bottle return area.
Morse observed Brcic exiting the store and followed him out to “make sure everything was okay.”
Morse found Brcic sitting in the driver’s seat of a Chevrolet Tahoe parked on the side of the
Walmart with his feet hanging outside the door. When Morse approached, he noticed a beer can
in the center console of the Tahoe. Brcic told Morse that he had been drinking earlier in the day,
and at Morse’s request, Brcic poured the contents of the can out onto the ground. Morse asked
Brcic what he was doing in the parking lot, and Brcic replied that he was waiting for his brother
to come give him a ride home. Morse advised Brcic that he was not permitted to drive, but he
could remain in place while waiting for his ride. Brcic agreed, and Morse went back inside
Walmart to investigate the larceny complaint he was originally called to handle.

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After walking back into Walmart and checking the surveillance cameras for the parking
lot, Morse noticed that Brcic and the Tahoe were gone. Morse reviewed the surveillance camera
footage and confirmed that the Tahoe had driven around to the back of the store before exiting the
property. He left Walmart in his patrol car looking for Brcic and radioed his colleagues to “be on
the lookout” for the Tahoe.

Shortly thereafter, Steven Coffey, a witness at trial and a local resident, called 911. Coffey
lived near Columbus Beach and the “green docks,” a common area for locals to swim and hang
out, and he had heard a vehicle crash outside. Officer Walt Chamberlain of the Tuscarora
Township Police Department was dispatched to the scene of the accident and observed a Chevrolet
Tahoe flipped on its side with broken windows lying next to a tree that it appeared to have struck.
No one was inside the Tahoe. Coffey told police that he saw someone emerge from nearby bushes,
cross the street, and head toward the river. As law enforcement was investigating the scene, three
minors approached with information. The minors shared with police, and later testified, that before
the accident, while at the green docks, they noticed a man sitting on a bench. Next, they saw that
same man driving past them in a Tahoe “fast” and “reckless.” The Tahoe swerved toward the
minors and the driver screamed “assholes” out his car window while driving away. Immediately
thereafter, the minors heard a loud crash, and saw the Tahoe flipped on its side next to a
significantly damaged tree. At the scene and again at trial, the minors identified Brcic as the driver
of the Tahoe. An EMT on the scene told Chamberlain that he saw a man matching Brcic’s
description limping across the street toward the river.

Chamberlain went toward the river in pursuit of Brcic. Chamberlain identified himself and
yelled at Brcic to “stop,” but Brcic ignored the command and kept limping toward the river.
Chamberlain got within about ten feet of Brcic when Brcic walked straight into the water, looked
back at Chamberlain, and did a backstroke toward the middle of the river. Chamberlain and other
first responders began to reposition themselves on the other side of the river, where they thought
Brcic was headed. A bystander informed the officers that Brcic was hanging onto the side of her
pontoon boat, which was moored in the river. Chamberlain stood on board the pontoon, identified
himself as “Tuscarora Police,” and asked Brcic to let go of the pontoon and come to shore. Brcic
did not comply. Multiple officers repeatedly commanded Brcic to get out of the water. Brcic let
go of the pontoon and continued swimming backstroke down the river while law enforcement
followed on foot, regularly shouting requests that he get out of the water and telling him that he
would get additional charges for ignoring these commands.

After more than 15 minutes of swimming backstroke down the river, Brcic climbed aboard
a police boat. He was handcuffed, taken to shore, and assessed for injuries. While ashore,
Chamberlain asked Brcic additional questions about whether anyone else was in the Tahoe when
he crashed. Brcic originally told them he was alone, but moments later said that someone he just
met at the bar had been driving. Brcic was transported to a hospital for medical attention. At the
hospital, Brcic was reluctant to let doctors perform any tests or assessments. He eventually
complied and a blood draw was done that showed his blood alcohol content of 0.2266. After being
treated and discharged from the hospital, Brcic was placed under arrest.

Brcic was charged with OWI-3rd, as well as five counts of assaulting, resisting, or
obstructing a police officer, MCL 750.81d; operating with a suspended or revoked license second
or subsequent offense, MCL 257.904(1) and (3)(b); failure to report an accident, MCL 257.622;

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and possession of an open container of alcohol in a vehicle, MCL 257.624a, as a fourth-offense
habitual offender, MCL 769.12.1 Brcic did not post bond and while in jail, an additional blood
draw was done pursuant to a warrant. See People v Brcic, 342 Mich App 271, 273; 994 NW2d
812 (2022).

Brcic filed a motion to suppress the blood-draw evidence that was obtained while in jail,
alleging the warrant was faulty. The trial court granted that motion and entered an additional order
to stay the trial as the prosecution appealed. During the pendency of the interlocutory appeal,
Brcic remained incarcerated in Cheboygan County Jail. Brcic was assigned to cell six, and he did
not have cellmates. While there, Brcic received a single-use, disposable shaving razor from
Corporal Christopher Parsons, in accordance with jail policy.

The jail’s policy on shaving razors was contained within the Inmate Rule Guide and
specified the rules against inmates causing damage to the shaving razors. Lieutenant Brenda
Beckwith, the chief jail administrator, testified, “[p]er the policy, either it’s to be intact when it’s
returned[,] or they can be charged.” Under “ADMINISTRATIVE RULES,” the Inmate Rule
Guide states, “[r]azors are to be returned undamaged . . . . Missing or damaged blades shall be
investigated and appropriate action on inmate/cell shall be taken.” The razors were distributed on
Mondays and Thursdays only, around 7:30 a.m., to inmates who were in the general population,
and collected by 10:00 a.m. Before distributing the razors, Parsons inspected them to make sure
they were not damaged and that there were covers on them.

At 9:57 a.m., Parsons began to collect the razors that he distributed to the inmates. When
Parsons went to cell six to collect Brcic’s razor, he discovered Brcic on a bench in the back of the
cell, injured and bleeding heavily. Parsons called for backup, and another corrections officer, Mari
LaCross, called 911 and notified the sheriff about the situation.

Lieutenant Andrew Lalonde, Lieutenant Josh Ginop, and Deputy Lacy Beaudoin were
dispatched to cell six. When they entered the cell, Brcic was alone, unconscious, and bleeding
from his wrist. The officers lowered Brcic to the floor to assess him. Lalonde then noticed that
the handle portion of the razor that had previously been distributed was stuck to Brcic’s forehead.
Brcic became slightly responsive and started mumbling as the officers rendered first aid while
waiting for medics to arrive. Ultimately, EMS took Brcic to a hospital.

Lalonde and other officers searched cell six for the remaining pieces of the razor. The
officers initially located a few broken pieces of the razor’s orange handle in the cell. Lalonde then
found the blade of the razor, which had been removed from the razor head, in the bottom of the
toilet in cell six. He took the razor blade and razor handle pieces into evidence. Brcic was charged
with PPW as a fourth-offense habitual offender, MCL 769.12.2

A jury convicted Brcic of PPW. The sentencing guidelines recommended a minimum
sentence range between 14 and 58 months, and Brcic was sentenced at the top of that range, to 58

1
These charges are at issue in Docket No. 366230.
2
This is the charge at issue in Docket No. 362727.

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months to 25 years in prison as a fourth-offense habitual offender. In explaining its rationale for
imposing this sentence, the trial court emphasized “the seriousness of the circumstances both of
the offense and the offender” and “consider[ed] [Brcic’s] criminal history.” The trial judge noted
that even though Brcic “did not actually harm anybody other than [him]self,” Brcic’s possession
of the razor created a “serious risk of harm.”

Meanwhile, this Court had granted the prosecution’s application for leave to appeal the
suppression issue in Docket No. 366230 and affirmed the trial court’s order of suppression. Brcic,
342 Mich App at 282. On August 15, 2022, the Michigan Department of Corrections sent a speedy
trial notice (180-day notice) to the prosecution, stating that Brcic’s trial must occur no later than
February 10, 2023. However, the trial court set Brcic’s trial to commence on March 8, 2023. Brcic
filed a motion dismiss, citing his constitutional right to a speedy trial and the 180-day rule. The
trial court attributed the delays in proceedings to the stay that was in place pending a decision on
interlocutory appeal and to the backlog created by the COVID-19 pandemic, noting that “jury trials
were forbidden for a period of time and were unsafe for a period of time.” The trial court denied
the motion.

Brcic’s jury trial began on March 8, 2023, and on March 9, the jury found Brcic guilty of
OWI-3rd and all other charges. For OWI-3rd, the sentencing guidelines recommended a minimum
sentence of between 19 and 76 months, and the trial court sentenced Brcic to 25 to 50 years, with
credit for 755 days served. In explaining the reason for its sentence, the trial court detailed Brcic’s
drunk driving history and opined that the sentences previously imposed for these offenses “have
not kept th[e] community safe from Mr. Brcic.” The court believed the guidelines did not
“adequately account for the danger [Brcic] presents to [his] community,” stating:

Here during the daylight hours at an area of public recreation with pedestrians
nearby defendant was driving recklessly, too fast, swerving his car, nearly striking
some teenagers, and then crashed. Thankfully no one was hurt but that’s not
through any actions of Mr. Brcic. You know, and really, I have to reflect here . . .
I do not believe that the law requires us to wait until Mr. Brcic kills someone Drunk
Driving before we do something about his absolute and utter refusal to stop doing
it.

The trial court also highlighted Brcic’s habitual offender status, explaining:

Also, I’m taking into consideration certain habitual violent offenders have a 25-
year mandatory minimum . . . . I mean Mr. Brcic in my judgement presents just as
much risk of harm to the community as a fourth violent offender does. So, therefore
that’s my reasonings for a departure and the extent thereof by analogy to some of
the habitual statutes.

This consolidated appeal followed.

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II. WE FIND NO MERIT IN BRCIC’S CLAIMS RELATED TO HIS CONVICTIONS

We begin first by addressing Brcic’s legal claims related to the integrity of his convictions,
namely, sufficiency of the evidence and right to a speedy trial. We find neither claim has merit
and affirm his convictions.

A. SUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT BRCIC’S PPW
CONVICTION

Brcic argues insufficient evidence was presented to support his PPW conviction because
he was authorized by the jail staff to possess the shaving razor. We disagree. The PPW statute,
MCL 801.262(2), provides:

Unless authorized by the chief administrator of the jail, a prisoner shall not possess
or have under his or her control any weapon or other item that may be used to injure
a prisoner or other person, or used to assist a prisoner in escaping from jail.

A conviction under this statute requires a showing of two elements: first, that the defendant was a
prisoner in the jail, and second, that the defendant knowingly possessed a weapon or an item that
could be used to injure another person or used to assist an escape from a jail. MCL 801.262(2).

When viewing the evidence in the light most favorable to the prosecution, People v Alter,
255 Mich App 194, 201-202; 659 NW2d 667 (2003), sufficient evidence was presented at trial to
support the jury’s guilty verdict. Brcic was a prisoner in the jail and neither party contests that.
The record reflects Brcic obtained a razor through lawful means under the Inmate Rule Guide. But
the record also reflects that Brcic manipulated the razor such that it only consisted of the blade,
and as a result, was in violation of those same inmate rules. In deconstructing his razor, Brcic was
no longer acting with jail authorization. By possessing a razor blade, Brcic possessed a weapon
or item that could be used to injure another person. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000) (“The standard of review is deferential: a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the jury verdict.”). That he used
the razor blade to injure himself does not negate the direct and indirect evidence that Brcic
knowingly possessed a weapon while in jail. We affirm his PPW conviction.

B. BRCIC’S RIGHT TO A SPEEDY TRIAL WAS NOT VIOLATED

Brcic argues that 31 months of pre-trial incarceration violated both his constitutional and
statutory rights to a speedy trial. We disagree.

1. STANDARD OF REVIEW

“A defendant must make a formal demand on the record to preserve a speedy trial issue for
appeal.” People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999) (quotation marks and
citation omitted). Brcic properly preserved this issue by filing and arguing a motion alleging a
violation of his speedy trial rights. “Whether defendant was denied his right to a speedy trial is an

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issue of constitutional law, which we [] review de novo.” People v Williams, 475 Mich 245, 250;
716 NW2d 208 (2006). The trial court’s factual findings are reviewed for clear error. Id.

1. BRCIC CANNOT SHOW A VIOLATION OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

Both the United States and Michigan Constitutions guarantee Brcic the right to a speedy
trial. US Const, Am VI; Const 1963, art 1, § 16. In Barker v Wingo, 407 US 514, 530; 92 S Ct
2182; 33 L Ed 2d 101 (1972), the United States Supreme Court identified four factors to assist the
Court in determining whether a violation of the right to a speedy trial exists: “(1) length of delay,
(2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the
defendant.” These factors were adopted by the Michigan Supreme Court in addressing speedy
trial arguments. Williams, 475 Mich at 261. No single factor is “either a necessary or sufficient
condition to” a meritorious speedy-trial claim. Barker, 407 US at 533. Rather, courts must
“engage in a difficult and sensitive balancing process.” Id.

The first and third factors favor Brcic, as he was incarcerated for 31 months prior to trial
and invoked his speedy trial rights during that incarceration. People v Wickham, 200 Mich App
106, 109; 503 NW2d 701 (1993). The prosecution thus bears the burden of rebutting the
presumption of prejudice. Id. at 109-110. In balancing the remaining Barker factors, however,
we conclude that the prosecution has rebutted the presumption of prejudice and Brcic was not
deprived of his constitutional right to a speedy trial. Id.

The second Barker factor looks to the reason for the delay. When “assessing the reasons
for the delay, this Court must examine whether each period of delay is attributable to the defendant
or the prosecution.” People v Waclawski, 286 Mich App 634, 666; 780 NW2d 321 (2009). Delays
that are unexplained should be attributed to the prosecution, as well as delays caused by docket
congestion. Id. With respect to the latter category, however, “delays inherent in the court
system . . . are given a neutral tint and are assigned only minimal weight in determining whether a
defendant was denied a speedy trial.” Williams, 475 Mich at 263 (quotation marks and citations
omitted).

The trial court walked through a timeline of each delay on the record to determine which
party contributed to or caused the delays. In doing so, it ultimately attributed a large portion of
the delay to the stay of trial proceedings pending an outcome on interlocutory appeal and COVID-
19 related adjournments, both of which the trial court correctly treated as neutral. See People v
Smith, ___ Mich App __, _; __ NW3d ___ (2024) (Docket No. 362114); slip op at 5. In
balancing the neutral delays against those caused by the parties, the trial court correctly determined
that second Barker factor weighs against Brcic.

Finally, the fourth factor looks to the prejudice Brcic suffered. “There are two types of
prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his
defense.” People v Collins, 388 Mich 680, 694; 202 NW2d 769 (1972). Brcic argues that he was
incarcerated for 259 days for which he was not entitled to receive any credit toward his 25-year
minimum sentence. However, that is in part due to Brcic committing an additional offense while

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incarcerated. Brcic also claims prejudice from the delay in his ability to present a defense, 3
specifically, that he was not the person who had been driving on the day of his drunk driving arrest.
That prejudice is not borne out by the record because there was no evidence to corroborate that
anyone other than Brcic was driving the Tahoe. Brcic initially admitted to law enforcement that
he was driving the Tahoe and was its sole occupant, and the three minors’ testimony placed Brcic
in the driver’s seat of the Tahoe at the time of the crash.

On balance of the Barker factors, Brcic was not deprived of his constitutional right to a
speedy trial.

1. BRCIC CANNOT SHOW A VIOLATION OF HIS STATUTORY RIGHT TO A SPEEDY TRIAL

In addition to the constitutional guarantee of a speedy trial, MCR 6.004 provides:

(A) The defendant and the people are entitled to a speedy trial and to a
speedy resolution of all matters before the court. Whenever the defendant’s
constitutional right to a speedy trial is violated, the defendant is entitled to dismissal
of the charge with prejudice.

---

(C) Delay in Felony and Misdemeanor Cases; Recognizance Release. In a
felony case in which the defendant has been incarcerated for a period of 180 days
or more to answer for the same crime or a crime based on the same conduct or
arising from the same criminal episode, or in a misdemeanor case in which the
defendant has been incarcerated for a period of 28 days or more to answer for the
same crime or a crime based on the same conduct or arising from the same criminal
episode, the defendant must be released on personal recognizance, unless the court
finds by clear and convincing evidence that the defendant is likely either to fail to
appear for future proceedings or to present a danger to any other person or the
community.

MCR 6.004(C) specifically dictates the “180-day rule” codified in MCL 780.131 and provides
several exclusions from the computation of the 180-day period, including periods caused by or
“concerning the defendant,” adjournments “requested or consented to by the defendant’s lawyer,”

3
Although not raised by Brcic, this record arguably contains evidence of personal prejudice to
Brcic given his attempt to end his life and his deteriorating mental health during his extensive
pretrial incarceration. As noted by the dissent in People v Bonds, 987 NW2d 874 (Mich, 2023)
(BOLDEN, J., dissenting), personal prejudice tends to be overlooked when applying Barker and
here, it was not addressed in the briefing to this Court or by the trial court. As a result, this case,
at least at present, is not an apt vehicle to provide guidance as to “how courts should weigh personal
prejudice in cases where there is no apparent evidence of trial prejudice.” Id.

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and “other periods of delay that in the court’s judgment are justified by good cause, but not
including delay caused by docket congestion.” MCR 6.004(C)(1), (3) and (6).

“[T]he statutory 180-day period is, by the plain terms of the statute, a fixed period of
consecutive days beginning on the date when the prosecutor receives the required notice from the
DOC.” People v Lown, 488 Mich 242, 247; 794 NW2d 9 (2011). “[T]he rule does not require
that a trial be commenced or completed within 180 days of the date notice was delivered. Rather,
as [our Supreme Court] has held for more than 50 years, it is sufficient that the prosecutor ‘proceed
promptly’ and ‘move [] the case to the point of readiness for trial’ within the 180-day period.” Id.
at 246, quoting People v Hendershot, 357 Mich 300, 304; 98 NW2d 568 (1959) (alteration in
original). “[A] prosecutor must proceed promptly and take action in good faith in order to satisfy
the rule.” Lown, 488 Mich at 246. “[G]ood faith is an implicit component of proper action by the
prosecutor, who may not satisfy the rule simply by taking preliminary steps toward trial but then
delaying inexcusably.” Id.

The record supports the prosecution acted in good faith. The prosecution did not file an
excessive number of pretrial motions or any obviously frivolous motions to delay Brcic’s trial.
The prosecution did not request an excessive number of adjournments after receiving the 180-day
notice. Therefore, Brcic’s statutory right to a speedy trial was not violated.

C. BRCIC’S STANDARD 4 CLAIMS FAIL

Brcic also filed a supplemental appellate brief in propria persona, otherwise known as a
Standard 4 brief,4 alleging violations of his Fourth and Fifth Amendment rights, lack of
jurisdiction, ineffective assistance of counsel, and insufficient evidence. The Standard 4 brief
lacks legal support or analysis and each claim raised fails on its merits.

Brcic argues his Fifth Amendment rights were violated by way of an unconstitutional
“show up” identification. Generally, a “show up” involves the police providing a single image or
individual to an eyewitness for identification purposes. Here, the opposite happened. The minors
pointed out a single individual to the police. Additionally, Brcic claims the minors’ identification
of him is unreliable because they admitted they did not see who was driving because the vehicle
came from behind. This claim is not supported by the record. The minors who testified at trial
stated that they saw Brcic as he drove past and identified the person in the water as “the same
person that swerved at us.”

Brcic also argues that during interactions with officers, he was never read his Miranda5
rights. This is true. Once Brcic was handcuffed and brought ashore, he was largely questioned
about the extent of his injuries by a paramedic. However, there is an exchange where Chamberlain
and another officer questioned Brcic about who else was in the vehicle and where Brcic met that
person. To some extent, these could be categorized as questions to assess whether there was
ongoing emergency, an exception to the Miranda requirement, People v Attebury, 463 Mich 662,

4
See Administrative Order No. 2004-6, 471 Mich c, cii (2004).
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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670; 624 NW2d 912 (2001). But asking where Brcic met someone may fall outside that exception
because it has little to do with the immediate need to protect public safety. Still, even if we assume
it was a custodial interrogation and that some or all of these statements could have been suppressed,
their admission seemed to be trial strategy by defense counsel. The defense was the first to use
Brcic’s statement at trial—that Brcic initially said to police there was a different driver—and
defense counsel revisited that statement in closing. Brcic does not claim ineffective assistance of
counsel in this regard6 and in fact, Brcic argues in his Standard 4 brief that he wanted his attorney
to do more to emphasize that there was another driver. As a result, Brcic’s claim that the admission
of his statements to police violated his Fifth Amendment rights lacks merit.

Brcic next argues that after leaving the hospital, Cheboygan officers placed him under
arrest without officers from the Michigan State Police or Emmett County Sheriff present.
Therefore, he claims, Cheboygan officers were acting outside their jurisdiction such that his arrest
violated the Fourth Amendment. Brcic also argues that Officer Stacks searched his truck without
a warrant or permission and that there was no probable cause to arrest him. Brcic is incorrect. As
to the search of his truck, it is not clear from the record that a warrantless search of his vehicle
took place and what, if any, evidence was used at trial from the alleged warrantless search. We
decline to address this issue further and we also take no issue with his arrest. Brcic was arrested
in the course of committing ongoing violations of the law—public intoxication and resisting and
obstructing are the most apparent from the body camera footage played at trial. As to the out-of-
jurisdiction claims, even if one or more of the arresting officers was acting outside his jurisdiction,
the police testified to this being a joint operation with permission of all parties. This is permissible
under MCL 764.2a.

Finally, Brcic argues that he was never given “advice of rights” by medical staff after
objecting to treatment. Beyond this blanket assertion, Brcic fails to state any violation of law for
which he is entitled to recovery. Further, the medical records he attaches to his Standard 4 brief
note that Brcic gave permission for a blood draw and other relevant testing, and trial testimony
confirmed the same. Brcic is not entitled to relief on any of these claims.

III. BRCIC’S SENTENCES FOR PPW AND OWI-3RD ARE DISPROPORTIONATE7

Brcic argues that he has overcome the presumption of proportionality for his within-
guidelines sentence for PPW and that the trial court failed to adequately consider mitigating

6
Brcic does claim he received ineffective assistance of counsel because his attorney never objected
when requested in part because his attorney was working at the prosecutor’s office when Brcic
was arrested, creating a conflict of interest. The opposite scenario, a defense counsel going to
work for the prosecution, creates a presumption of prejudice. People v Davenport, 483 Mich 906;
762 NW2d 163 (2008). This scenario does not, at least not without more information. Further, it
appears from Brcic’s pleading that the conflict, if any, was waived as it was relayed to him by his
counsel and representation continued. See generally MRPC 1.9, 1.10. This argument fails.
7
Brcic also contends that his sentences are unconstitutional, but because he fails to adequately
develop these claims, we consider them abandoned. Twp of Grayling v Berry, 329 Mich App 133,

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factors. He further argues that his 25-year minimum sentence for OWI-3rd is disproportionate and
that the reasons cited by the trial judge at sentencing for the departure were insufficient to justify
that departure. We agree.

A. APPELLATE REVIEW OF SENTENCES, GENERALLY

“Sentencing decisions are reviewed for an abuse of discretion.” People v Boykin, 510 Mich
171, 182; 987 NW2d 58 (2022). “An abuse-of-discretion standard recognizes that there may be
more than one principled outcome[,] and the trial court may not deviate from that principled range
of outcomes.” Id. A trial court abuses its discretion by violating the “principle of proportionality,”
which requires that a sentence be proportionate to the seriousness of the offense and the
circumstances of the offender. People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327
(2017); see generally People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).

This review, a “reasonableness” review, applies to both sentences within and outside the
guidelines. Steanhouse, 500 Mich at 473-477. The sentencing guidelines are only advisory;
however, those guidelines “remain a highly relevant consideration in a trial court’s exercise of
sentencing discretion.” People v Lockridge, 498 Mich 358, 391; 870 NW2d 502 (2015). There
are also four “basic sentencing considerations” for the trial court: reformation of the offender,
protection of society, discipline of the offender, and deterrence of others from committing the same
offense. Boykin, 510 Mich at 188.

A within-guidelines sentence carries a rebuttable presumption of proportionality. People
v Posey, 512 Mich 317, 360; 1 NW3d 101 (2023) (opinion by BOLDEN, J.).8 “[T]he defendant
bears the burden of demonstrating that their within-guidelines sentence is unreasonable or
disproportionate.” Id. at 359. “A defendant may overcome the presumptive proportionality of a
within-guidelines sentence by ‘present[ing] unusual circumstances that would render the
presumptively proportionate sentence disproportionate.’ ” People v Ventour, 349 Mich App 417,
430; 27 NW3d 660 (2023), citing People v Bowling, 299 Mich App 552, 558; 830 NW2d 800
(2013) (quotation marks and citation omitted).

For sentences that depart from the guidelines, by contrast, there is no presumption of
proportionality. We review “whether a departure sentence is more proportionate than a sentence

154-155; 942 NW2d 63 (2019). And under the doctrine of constitutional avoidance, because we
grant relief applying a proportionality analysis, we would decline to address the constitutional
claims regardless. Dep’t of Health and Human Services v Genesee Circuit Judge, 318 Mich App
395, 407; 899 NW2d 57 (2016).
8
Justice BOLDEN’s plurality opinion, joined by Justice BERNSTEIN, is not binding on its own, but
in concurring opinions, Justices CAVANAGH and WELCH agreed that within-guidelines sentences
carry a rebuttable presumption of proportionality. See Posey, 512 Mich at 361 (CAVANAGH, J.,
concurring); id. at 390, 411-414 (WELCH, J., concurring). Our Court, therefore, treats the
principles announced in Justice BOLDEN’s lead opinion as controlling. See People v Posey (On
Remand), 349 Mich App 199, 203; 27 NW3d 137 (2023); People v Purdle, ___ Mich App __,
_; __ NW3d ___ (2024) (Docket No. 353821); slip op at 3-4.

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within the guidelines range,” including “(1) whether the guidelines accurately reflect the
seriousness of the crime; (2) factors not considered by the guidelines; and (3) factors considered
by the guidelines but given inadequate weight.” People v Dixon-Bey, 321 Mich App 490, 525;
909 NW2d 458 (2017) (citations omitted). And “[e]ven 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.” Milbourn, 435 Mich at 660.

B. BRCIC’S WITHIN-GUIDELINES SENTENCE FOR PPW IS DISPROPORTIONATE

For Brcic’s PPW offense under MCL 801.262(2), the sentencing guidelines recommended
a minimum sentence range of 14 to 58 months. The trial court sentenced Brcic to 58 months to 25
years as a fourth-offense habitual offender. Although this sentence was within (at the top of) the
guidelines, we find that Brcic has overcome the presumption of proportionality and has thus
demonstrated that this within-guidelines sentence is unreasonable.

To start, it is worth revisiting Milbourn. There, the Michigan Supreme Court highlighted
two general principles of proportionate sentencing: (1) the most serious crimes get the most severe
punishments and (2) “offenders with prior criminal records are likewise subject to harsher
punishment than those with no prior convictions.” Milbourn, 435 Mich at 650. In applying the
principle of proportionality, the Court looked first to the facts of the case and observed that the
burglary offense at issue was atypical in a way that was mitigating: “Milbourn broke into an
apartment in which he himself had resided for the apparent purpose of making an emotional and
destructive statement . . . . The . . . accompanying . . . acts . . . were visited against property rather
than persons.” Id. at 667-668.

By comparison, this Court also considered the circumstances of the offense in Posey, where
on remand, the within-guidelines sentence was affirmed. Posey “set off a gunfight in a public
space outside a supermarket,” behavior placing him at the more extreme end of the broad range of
criminal conduct that assault with intent to murder encompasses. People v Posey (On Remand),
349 Mich App 199, 205; 27 NW3d 137 (2023).

The facts underlying Brcic’s PPW are more like the circumstances in Milbourn than in
Posey, albeit involving a different crime. As the trial court stated:

Here I think it is, you know, certainly relevant that you did not actually harm
anybody other than yourself. When the officers did respond into the cell, the razor
was in the toilet which indicates to me that there wasn’t a present intention, at that
time at least, for you to use that on anybody else. You had discarded it.

Just as the facts in Milbourn “[did] not constitute a typical burglary,” Milbourn, 435 Mich at 667,
the trial court’s observations here highlight the fact that Brcic’s offense conduct did not constitute
a typical PPW. Indeed, not only does the evidence show, as the trial court recognized, that Brcic
had no intent to harm anyone other than himself, but the record also demonstrates that Brcic
initially obtained the razor lawfully and had no cellmates at the time of his offense whom he could
have harmed or who would have had access to the razor. Put simply, Brcic lacked intent and
opportunity to harm another. In the “broad range of criminal conduct” encompassed by the PPW

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statute, Brcic’s behavior is at the least extreme end. Milbourn, 435 Mich at 668. The trial court
seemed to acknowledge as much:

You know, if I were sentencing somebody for this exact crime today without that
criminal history, what sentence to pick would be very, very difficult. It might even
call for a downward departure; I don’t know. I don’t know. I go back and forth
on that to be honest. [Emphasis added.]

It was Brcic’s criminal history that changed the trial court’s course. The trial court said
that the circumstances of the offense and Brcic’s criminal history “point in different directions.”
At sentencing, Brcic was 44 years old with seven felonies and eleven misdemeanors spanning from
1992 to 2022. As a result of this criminal history, Brcic was assessed points for all prior record
variables (PRVs), other than PRV 1 and 7, which were scored zero points. Further, the trial court
had already assessed offense variable(OV) points for OV 19, which was scored 25 points because
“[t]he offender by his or her conduct threatened the security of a penal institution or court.” MCL
777.49. This increased Brcic’s guidelines on the PPW sentencing grid.

We agree with the trial court that the circumstances of the offense and the circumstances
of the offender “point in different directions.” However, Brcic’s criminal history is reflected in
the prior record variable scoring and notably, despite his poor history, some of those prior record
variables remain scored at zero. The negative circumstances of the offense are also accounted for
in the guidelines—with the court scoring OV-19 at 25 points. Put differently, a presumptively
proportionate minimum sentence as high as 58 months considers most if not all of the negative
circumstances of the offender. What is not reflected in the guidelines is that Brcic lawfully
obtained the razor, did not have a cellmate, used the razor against himself alone with the intent of
ending his life, and disposed of the razor in his toilet before his injuries immobilized him. Taken
individually each enumerated circumstance could be uncommon or rare when sentencing a
prisoner for possession of a weapon. Taken together, they“ ‘present unusual circumstances
that . . . render [a] presumptively proportionate sentence disproportionate.’ ” Ventour, 349 Mich
App at 430, quoting Bowling, 299 Mich App at 558. This is particularly true where Brcic’s actions
taken against himself have an explanation, and a mitigating one at that. The trial court heard Brcic
detail the depth of his mental illness during his allocution:

I’ve talked to officers saying that I need help. I’ve wrote many medical kites saying
I need help. Somebody help me. In fact, on the day moments, minutes before this
incident, I called my attorney begging for help. Send me to the hospital. I need to
go to the mental hospital; somethings wrong. Minutes, just seconds before this
happened. And I also didn’t—don’t have the ability to call that 811 number that
has just come for mental illnesses that (inaudible) address by public or anybody. I
don’t have that ability. I wish I would have. I called the emergency lines on the
phone begging for help. I didn’t receive any. I didn’t get no help. I asked multiple
times to talk to the mental health. They might come once a week, maybe even once
every two, three months; they’re not on a set schedule.

Brcic’s presentence investigation report (PSIR) likewise evidences his psychiatric history. And it
is clear from the record and the circumstances of the offense that substance abuse and mental health
remain ongoing issues for Brcic.

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The prosecution discourages this Court from considering that this was a case of self-
mutilation brought about by suicidal intent, noting that “the PPW statute does not require that the
defendant intend to harm others or attempt escape with the weapon to be guilty.” In making this
assertion, however, the prosecution seems to conflate Brcic’s conviction with his sentence. We
agree that there was sufficient evidence to support the jury’s verdict. That Brcic attempted to take
his own life in part due to serious mental illness and without the opportunity or intent to physically
harm another individual are the circumstances of the offense. We must consider the circumstances
of the offense and the offender to assess whether a sentence is reasonable. Posey, 512 Mich at 356
(stating that “proportionality must be measured according to the offense and the offender, not
according to the sentence’s relationship to the guidelines”). And while the sentencing court need
not expressly consider mitigating evidence, People v Bailey, 330 Mich App 41, 63; 944 NW2d
380 (2019), it is also true that Brcic’s sentencing was one where there were circumstances of the
offense or the offender, available on the record and included within documents the sentencing
court must consider,9 that are only mitigating. See People v Bennett, 335 Mich App 409, 436; 966
NW2d 768 (2021) (GLEICHER, J., concurring) (“Mental illness is universally recognized by courts
and legislatures as a mitigating factor in sentencing considerations. Judicial recognition that
mental illness is mitigating rather than aggravating is abundant.”).

As the trial court itself acknowledged, the circumstances of the offense did not call for a
harsh sentence and perhaps even justified a downward departure. As stated, we agree with the
trial court that Brcic’s criminal history points in the other direction. But Brcic’s criminal history
is not so substantial as to justify a minimum sentence of 58 months, a sentence at the top of the
guidelines range, for the particular offense conduct and circumstances presented in this case.

We therefore conclude that the trial court abused its discretion by applying the law in a
manner unsupported by the facts as found and imposing a sentence that is not proportionate to the
unusual circumstances of the offense and the circumstances of the offender. Ventour, 349 Mich
App at 430. There is no “single correct outcome” for the trial court on remand. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003), and we do not limit the trial court’s discretion in
sentencing Brcic on remand any further than to say a minimum of nearly five years in prison is
disproportionate given the circumstances of Brcic’s offense and of Brcic as an offender. For these
reasons, Brcic is entitled to resentencing on his PPW conviction.

C. BRCIC’S 25-YEAR MINIMUM SENTENCE FOR OWI-3RD IS DISPROPORTIONATE

For the OWI-3rd conviction, the trial court sentenced Brcic to 25 to 50 years10—an
approximately fourfold upward departure from the upper end of the minimum sentencing
guidelines recommended range of 19 to 76 months. We agree with Brcic that the sentence imposed
is disproportionate.

9
People v Amos, 42 Mich App 629, 632-633; 202 NW2d 486 (1972) (holding that a sentencing
court must review the contents of PSIR before imposing sentence).
10
Brcic received jail credit for 755 days served.

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“Because the guidelines embody the principle of proportionality and the trial courts must
consult them when sentencing, it follows that they continue to serve as a ‘useful tool’ or
‘guideposts’ for effectively combating disparity in sentencing.” Dixon-Bey, 321 Mich App at 524 -
525. As stated, “relevant factors for determining whether a departure sentence is more
proportionate than a sentence within the guidelines range . . . include (1) whether the guidelines
accurately reflect the seriousness of the crime; (2) factors not considered by the guidelines; and
(3) factors considered by the guidelines but given inadequate weight.” Id. at 525.

The trial court’s serious doubts about Brcic’s ability to reform are supported by the record
and arguably either were not considered or were not given inadequate weight in the guidelines.
When we review his prior criminal history, we see Brcic has been charged with and convicted of
several drunk driving offenses, has completed Safe and Sober programming without long-term
success, and has violated terms of probation or parole by consuming alcohol, committing domestic
violence, or driving without a license. When he committed the instant offense, he had been paroled
for only a matter of months. And there were some particularly dangerous circumstances with this
offense, as observed by the trial court:

Here during the daylight hours at an area of public recreation with pedestrians
nearby defendant was driving recklessly, too fast, swerving his car, nearly striking
some teenagers, and then crashed. Thankfully no one was hurt but that’s not
through any actions of Mr. Brcic.

Now, some of this is reflected in the guidelines. The trial court had already scored OV 9,
in which Brcic was given 10 points for placing “2 to 9 victims . . . in danger of injury or loss of
life.” MCL 777.39(1)(c). PRV 2 and PRV 5 were scored for prior felony and misdemeanor
convictions. Brcic was also given the highest score for PRV 3 for prior felony convictions. He
had a PRV total of 75, the lowest possible point total for a PRV Level VI for a Class E offense.
Nevertheless, the trial court correctly observed that the guidelines do not fully capture that Brcic
is repeatedly engaging in the same type of criminal behavior and the future risk to the community
this pattern of criminality may create. Here, Brcic is a repeat offender of (generally) one type of
offense—he repeatedly drives drunk, endangering himself and his community.

Simply put, this case is not Dixon-Bey, where there was “nothing in defendant’s
background” or “the nature of defendant’s offense . . . provid[ing] reasonable grounds for a
departure.” Dixon-Bey, 321 Mich App at 526 (emphasis added). Aspects of Brcic’s criminal
record and crime here could support a departure.11 However, “[e]ven where some departure
appears to be appropriate, the extent of it may constitute a violation of the principle of
proportionality.” People v Cramer, 201 Mich App 590, 597; 507 NW2d 447 (1993). We conclude
that is the case here, as the trial court failed to justify the departure, and we cannot identify anything
about this offense or offender that would make a 25-year minimum sentence reasonable.

11
“[S]pecific characteristics of an offense and an offender that strongly presage future criminal
acts” may justify an out-of-guidelines sentence, especially “if they are not already adequately
contemplated by the guidelines.” People v Horn, 279 Mich App 31, 45; 755 NW2d 212 (2008).

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The trial court’s own explanation for a 25-year minimum sentence analogized Brcic to a
fourth-offense violent offender, MCL 769.12(1)(a):

Also, I’m taking into consideration certain habitual violent offenders have a 25-
year mandatory minimum . . . . I mean Mr. Brcic in my judgement presents just as
much risk of harm to the community as a fourth violent offender does. So, therefore
that’s my reasonings for a departure and the extent thereof by analogy to some of
the habitual statutes.

The analogy drawn by the trial court falls short. Although facts establishing that a
defendant poses a risk to community safety in the future can, in appropriate cases, justify some
departure from the guidelines, Michigan law also recognizes an important difference between
conduct that carries a risk of harm and the actual commission of violence. Yet the trial court
imposed a 25-year minimum sentence for Brcic’s OWI-3rd offense, implicitly equating the
seriousness of Brcic’s high-risk but nonviolent habitual conduct to the seriousness of conduct
committed by habitual violent offenders.

In so doing, the trial court may have supplied “adequate reasons to support a departure, but
failed to justify the extent of this departure.” People v Smith, 482 Mich 292, 295; 754 NW2d 284
(2008). Here, “the extent of the departure (rather than the fact of the departure itself) []embod[ies]
a violation of the principle of proportionality,” Milbourn, 435 Mich at 660, “and therefore
constituted an abuse of discretion,” id. at 667. Brcic is entitled to resentencing on his OWI-3rd
conviction. Id. at 669-670; People v Mason, ___ Mich App __, __ NW3d ____ (2024) (Docket
No. 367687); slip op at 5.

D. JUDICIAL BIAS

Brcic claims the statements made at sentencing in both cases point to the trial judge’s
inability to treat Brcic fairly on remand and to maintain the appearance of justice. As such, he
asks that both cases be remanded to a different judge for resentencing. We find no evidence of
bias sufficient to justify remanding to a different judge for resentencing.

1. STANDARD OF REVIEW

To preserve the issue of judicial bias, a party should raise the issue to the trial court. MCR
2.003(D); In re Contempt of Henry, 282 Mich App 656, 679; 765 NW2d 44 (2009). Brcic did not
raise this issue below; thus, it is unpreserved. Id. Unpreserved claims of judicial bias are reviewed
for plain error. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011). This requires
the defendant to show that the plain error affected the outcome of the proceedings. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Reversal is warranted only if the error
resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or

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public reputation of the judicial proceedings. Id. The defendant bears the burden of persuasion
regarding whether the error was prejudicial. Id. at 763.

1. BRCIC CANNOT ESTABLISH JUDICIAL BIAS BY THE TRIAL COURT

Brcic asserts that “[a]t both sentencings, the trial court made clear its personal disdain for
Mr. Brcic.” But, the only reference that Brcic points to as his basis for arguing bias in Docket No.
362727 is the judge’s statement that “I’m, not sentencing anybody today; I’m sentencing you, Mr.
Brcic.” In Docket No. 366230, Brcic claims the imposition of a 25-year minimum sentence and
the judge’s “personal contempt for Mr. Brcic and his prior record” indicate bias, without stating
any evidence of such. Because Brcic fails to articulate any evidence of bias beyond these blanket
assertions, he has abandoned the issue and is not entitled to relief. People v Kelly, 231 Mich App
627, 640-641; 588 NW2d 480 (1998) (“An appellant may not merely announce his position and
leave it to the Court to discover and rationalize the basis for his claims, nor may he give only
cursory treatment with little or no citation of supporting authority.”). However, even if this issue
were properly briefed, Brcic cannot demonstrate bias sufficient to warrant relief on this issue.

In determining whether a different judge should resentence a defendant, this Court
considers:

(1) whether the original judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previously-expressed views
or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and (3)
whether reassignment would entail waste and duplication out of proportion to any
gain in preserving the appearance of fairness. [People v Hill, 221 Mich App 391,
398; 561 NW2d 862 (1997) (quotations omitted).]

There is some indication in the record that the sentencing judge has strong negative views
about Brcic such that the judge will “have substantial difficulty putting out of his mind” on remand.
Id. For example, in Docket No. 362727, the trial court stated, “I’m not sentencing anybody today;
I’m sentencing you, Mr. Brcic[,]” and imposed a top-of-the-guidelines sentence when previously
stating the facts may have supported a downward departure.

In Docket No. 366230, the trial court compares Brcic’s history to habitual violent
offenders:

Also, I’m taking into consideration certain habitual violent offenders have a 25-
year mandatory minimum. Here Mr. Brcic has prior violent offenses including
violent felonies such as an adult sexual assault, a juvenile arson, misdemeanor
assaultive crimes, as well as the extraordinary Drunk Driving history endanger (sic)
I’ve outlined. I mean Mr. Brcic in my judgement presents just as much risk of harm
to the community as a fourth violent offender does. So, therefore that’s my
reasonings for a departure and the extent thereof by analogy to some of the habitual
statutes.

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In making these statements, the trial court does not misapply the law, as it makes clear that Brcic
is not actually a violent fourth offender. But it does seemingly state firmly held beliefs on Brcic:
“in my judgement [, Brcic] presents just as much risk of harm to the community as a fourth violent
offender does” to justify a drastic upward departure. This statement calls into question whether
the judge would “reasonably be expected upon remand to have substantial difficulty in putting out
of his or her mind previously-expressed views or findings determined to be erroneous or based on
evidence that must be rejected[.]” Hill, 221 Mich App at 398. These conclusions about Brcic,
however, are tied in part to fact; Brcic does have a concerning criminal history consisting of
repeatedly driving while intoxicated. Additionally, the conclusory statements about Brcic as a
person were mostly isolated incidents. Compare People v Walker, 504 Mich 267, 286; 934 NW2d
727 (2019) (granting defendant’s request for a new judge where the judge engaged in name-calling
over six times and repeatedly admonished defendant). These incidents are not sufficient to meet
the first or second Hill prongs.

Additionally, reassignment would result in waste and duplication out of proportion to any
gain in preserving the appearance of fairness given Brcic’s speedy trial claim and the fact that this
appeal involves two consolidated but distinct cases. Hill, 221 Mich App at 398. Thus, this claim
fails.

IV. CONCLUSION

We affirm Brcic’s convictions for PPW and OWI-3rd but we vacate the sentences issued
for these convictions and remand for resentencing. We do not retain jurisdiction.

/s/ Adrienne N. Young
/s/ Daniel S. Korobkin

-17-

In Part Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
March 09, 2026
Plaintiff-Appellee, 9:46 AM

v No. 362727; 366230
Cheboygan Circuit Court
STEVEN RUSSELL BRCIC, LC Nos. 2022-006325-FH; 2020-
006006-FH
Defendant-Appellant.

Before: ACKERMAN, P.J., and YOUNG and KOROBKIN, JJ.

ACKERMAN, P.J. (concurring in part and dissenting in part).

In People v Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990), our Supreme Court
observed that “even a sentence within the sentencing guidelines could be an abuse of discretion in
unusual circumstances.” The “unusual circumstances” standard has been repeated often in the
decades since, but no case has ever found it satisfied.1 That is, until today. For the first time, this
Court sets aside a within-guidelines sentence as substantively unreasonable. It also vacates an
upward departure that the sentencing judge thoughtfully tailored to a defendant with an
extraordinary and deeply troubling criminal history. The combined effect is not error correction
but a narrowing of trial court sentencing authority that leaves neither adherence to the guidelines
nor principled departure from them secure from appellate revision.

While I concur with the majority’s decision to affirm defendant’s convictions, I dissent
from the decision to vacate defendant’s sentences and remand for resentencing. Over more than
three decades, defendant has amassed 14 felony and 12 misdemeanor convictions, repeatedly
violated probation and parole, and demonstrated a persistent and dangerous pattern of alcohol-
related offending, culminating in this, his fifth conviction for third-offense operating while
intoxicated (OWI-3rd). On this occasion, he paired reckless drunk driving through a public
recreation area with five counts of resisting and obstructing a police officer, and he then

1
Indeed, Milbourn itself merely cited another opinion noting, hypothetically, that a within-
guidelines sentence could constitute an abuse of discretion. See Milbourn, 435 Mich at 661, citing
People v Broden, 428 Mich 343, 354 n 18; 408 NW2d 789 (1987).

-1-
compounded that conduct by possessing a weapon in jail while awaiting trial. Confronted with
that record, the trial court imposed an upward-departure sentence for OWI-3rd grounded in the
demonstrated need for incapacitation, as well as a within-guidelines sentence for prisoner in
possession of a weapon (PPW).

In second-guessing the sentences imposed, today’s decision departs from settled standards
of appellate review in a manner that will reverberate through sentencing jurisprudence in
innumerable future cases, leaving trial courts and future panels of this Court to grapple with
whether its rationale can be distinguished. The decision treats a within-guidelines sentence as
subject to substantive recalibration based on mitigating factors the law does not require sentencing
courts to consider, and it identifies “unusual circumstances” sufficient to overcome the
presumption of proportionality in conduct that represents the most ordinary application of the PPW
statute. At the same time, it invalidates an upward departure not because it lacks record support,
but because the trial court considered defendant’s conduct comparably serious to repeat violent
offenders—an analogy that I believe was wholly reasonable. The majority’s approach dilutes
abuse-of-discretion review, drains the concept of “unusual circumstances” of its limiting force,
and invites appellate micromanagement of sentencing decisions committed by law to the trial
court. Because the sentences imposed were lawful, reasoned, and proportionate to both the
offenses and the offender, I respectfully dissent.

I. FACTS

The facts here are critical.

A police officer first encountered defendant Steven Brcic sitting in a parked Chevrolet
Tahoe in the Cheboygan Walmart parking lot with an open container of beer in the center console.
The officer warned defendant not to drive. Had defendant followed that directive, he could have
avoided any criminal consequences altogether. Within minutes, however, defendant ignored that
warning and drove off. About an hour and a half later, defendant was observed driving recklessly
through a public recreation area in Indian River, a significant distance away from the Walmart.
He swerved toward a group of teenagers, yelled at them from his vehicle, and ultimately crashed.
He then jumped into Indian River and, defying repeated police commands to come to shore and
submit to arrest, backstroked down the river away from the officers. Only after he was taken into
custody was his blood alcohol content measured at 0.2266, nearly three times the legal limit.

Defendant’s dangerously drunken drive did not occur in isolation. Rather, its backdrop
was more than 30 years of criminal conduct, including seven felony and nine misdemeanor prior
convictions.2 That record includes an extraordinary and persistent pattern of alcohol-related
offenses: a 1995 OWI; a 1997 operating under the influence of liquor (OUIL); a 1997 drunk and
disorderly; a 1998 attempted OUIL; a 1999 OUIL third offense; a 2005 OWI third offense; a 2011
OWI third offense; a 2015 attempted drunk and disorderly; a 2016 OWI third offense; a 2019
attempted drunk and disorderly conviction; and the present offenses. Defendant also accumulated

2
This total does not include an additional misdemeanor offense committed when defendant was a
juvenile.

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multiple violent convictions, including sexual assault and assaultive misdemeanors, repeatedly
violated probation and parole, and was also adjudicated for juvenile arson.

While awaiting trial in the Cheboygan County Jail, defendant violated the jail’s razor-
distribution policy by manipulating a razor into a weapon, which he used to attempt suicide.
Although the attempt was ultimately unsuccessful, it required the involvement of as many as eight
officers and necessitated the entry of emergency medical responders into the facility to transport
defendant to a hospital. Juries later found defendant guilty of another three misdemeanors and
seven felonies, including five counts of resisting and obstructing a police officer and the OWI-3rd
and PPW convictions at issue in this appeal.

Against this record, the trial court imposed (1) a within-guidelines minimum sentence of
58 months for defendant’s PPW conviction and (2) an upward-departure sentence of 25 to 50 years
for OWI-3rd. Although the majority upholds defendant’s convictions, it sets aside both sentences
as disproportionate. I disagree with granting defendant any relief.

II. SENTENCING GENERALLY

For over 40 years, a series of Michigan appellate decisions has steadily chipped away at
the sentencing scheme enacted by our Legislature. When the Legislature entrusted sentencing to
broad judicial discretion, appellate decisions curtailed that in the name of consistency. When the
Legislature later adopted laws to promote consistency, courts held that those laws
unconstitutionally constrained judicial discretion. The consistent through line has been appellate
courts derogating from legislative policy choices.

“Michigan initially had a purely indeterminate sentencing system, in which the judge
possessed unfettered judgment to sentence a defendant anywhere between no jail time and
imprisonment in the amount of the statutory maximum.” People v Lockridge, 498 Mich 358, 415
n 8; 870 NW2d 502 (2015) (MARKMAN, J., dissenting). Consistent with that scheme, in Cummins
v People, 42 Mich 142, 144; 3 NW 305 (1879), the Supreme Court held that for any sentence
authorized by statute, appellate courts “ha[ve] no supervising control over the punishment that
shall be inflicted.” Over time, however, the Supreme Court “came to disfavor the sentencing
disparities that resulted from this type of unrestricted judgment.” Lockridge, 498 Mich at 415 n 8.
Cummins was overruled in favor of abuse-of-discretion review on appeal. People v Coles, 417
Mich 523, 550-551; 339 NW2d 440 (1983).3 Later still, the Supreme Court “enacted judicial
sentencing guidelines in 1984 by administrative order.” Lockridge, 498 Mich at 415 n 8.

That arrangement was further refined when the Legislature adopted the statutory
sentencing guidelines in 1998. See 1998 PA 317. Under that framework, every felony is assigned
a classification level (A through H).4 The guidelines include “offense variables” (OVs) and “prior
record variables” (PRVs), with instructions directing the sentencing judge to assess points based

3
Coles was later partially overruled by Milbourn, 435 Mich at 635-636, which rejected Coles’
“shock the conscience” standard in favor of the “principle of proportionality.”
4
As well as a special “M2” classification for second-degree murder. MCL 777.16p.

-3-
on facts—found by the judge—regarding both the sentencing offense and the defendant’s criminal
history. Each classification level contains a sentencing grid divided into cells that recommend a
range of minimum sentences. As enacted, the statute required sentencing judges to impose a
minimum sentence within the applicable range absent a “substantial and compelling reason” to
depart, whether upward or downward. See MCL 769.34(3) (as adopted).

By constraining judicial discretion, this system promoted greater consistency in criminal
sentencing. But it also depended heavily on judge-found facts. Many offense variables concerned
considerations not intrinsic to the offense of conviction—for example, whether a “vulnerable
victim” was “exploited,” MCL 777.40. Because those facts increased the minimum sentence the
defendant faced but were not found by a jury, the Supreme Court held that the mandatory
guidelines violated the constitutional right to trial by jury. Lockridge, 498 Mich at 373-374
(majority opinion).

Having reached that conclusion, the Court was required to fashion a remedy. The
defendant in Lockridge urged the Court “to require juries to find the facts used to score all the OVs
that are not admitted or stipulated by the defendant or necessarily found by the jury’s verdict.” Id.
at 389. The Court rejected that approach because of “the profound disruptive effect it would have
in every case,” effectively “turn[ing] sentencing proceedings into mini-trials.” Id. Instead, the
Court rendered the guidelines “advisory only.” Id. at 391. It did so in part because this remedy
“requires the least judicial rewriting of the statute.” Id.

As a result, the guidelines “remain a highly relevant consideration in a trial court’s exercise
of sentencing discretion.” Id. A sentencing court is freely allowed to “exercise its discretion to
depart from th[e] guidelines range without articulating substantial and compelling reasons for
doing so,” and such departures will “be reviewed by an appellate court for reasonableness.” Id.
at 391-92.

[T]he proper inquiry when reviewing a sentence for reasonableness is whether the
trial court abused its discretion by violating the “principle of proportionality” set
forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “which
requires sentences imposed by the trial court to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” [People v
Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017).]

The Supreme Court adopted this remedy to preserve as much of the Legislature’s
sentencing framework—and the consistency it sought to impose—as possible. Although out-of-
guidelines sentences are now reviewed solely for reasonableness, “[w]ith regard to a within-
guidelines sentence, there is a nonbinding presumption of proportionality,” which the defendant
bears the burden of rebutting. People v Purdle (On Remand), ___ Mich App __, _; __ NW3d
___ (2024) (Docket No. 353821); slip op at 5 (cleaned up). This framework gives continuing force
to the Legislature’s sentencing policy while curing the constitutional defect identified in
Lockridge.

-4-
III. OWI

I begin with the sentence that will almost certainly control the amount of time defendant
serves in prison. The majority concludes that the trial court abused its discretion and violated the
principle of proportionality by upwardly departing from the recommended minimum sentence
range of 19 to 76 months and imposing a 25-year minimum sentence for defendant’s OWI-3rd
conviction. I disagree.

Defendant has demonstrated a persistent inability to conform his conduct to what the law
requires. To some extent, the sentencing guidelines recognize this reality; there is a reason his
total PRV score was 75 points. But while the variables generally account for some number of
defendant’s prior convictions, they lose sight of just how extensive his criminal history is and give
no meaningful consideration to his highly specific and repeated propensity to drive while
intoxicated and the special risks that presents to the community.

Consider that under MCL 257.625(9)(c), enhanced penalties apply to individuals convicted
of drunk driving “after 2 or more prior convictions” for the same offense, which is commonly
referred to as OWI-3rd. The present conviction is not merely defendant’s fifth felony conviction;
not merely his fifth drunk-driving conviction; it is his fifth OWI-3rd conviction.5 Admittedly, the
Legislature has not created a special OWI-7th category, and the sentencing guidelines accordingly
provide direction only for OWI-3rd convictions. But because OWI-3rd is classified as a Class E
felony, MCL 777.12f, all of defendant’s prior OWI-3rd convictions are subsumed, along with his
other three prior felony convictions, within the 30 points assigned under PRV 2 for “low-severity
felony convictions,” a score that caps at “4 or more prior” such convictions. MCL 777.52(1)(a),
(2)(a). In a similar fashion, defendant was assessed 10 points under OV 9 for placing “2 to 9
victims . . . in danger of physical injury or death,” MCL 777.39(1)(c), but defendant’s inebriated
excursion from Cheboygan to Indian River likely exposed far more than nine people to grave risk.

These circumstances illustrate precisely why departures are permitted. As our caselaw
recognizes, “relevant factors for determining whether a departure sentence is more proportionate
than a sentence within the guidelines range . . . include” both “factors not considered by the
guidelines” and “factors considered by the guidelines but given inadequate weight.” People v
Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017). It would be unreasonable to require
the Legislature to enact a punishment specifically tailored to a criminal history as unusually
extensive as that of defendant. Nor would adding more points along the axes of the Class E grid
adequately capture the severity of the problem. As the trial court observed at sentencing, “I do not
believe that the law requires us to wait until Mr. Brcic kills someone [d]runk [d]riving before we
do something about his absolute and utter refusal to stop doing it.”

The majority does not seriously dispute these observations. It acknowledges that “the trial
court correctly observed that the guidelines do not fully capture that Brcic is repeatedly engaging
in the same type of criminal behavior and the future risk to the community this pattern of

5
Nor does this account for defendant’s 1998 offense, which was pleaded down to attempted OUIL
but would otherwise have constituted a sixth OWI-3rd conviction.

-5-
criminality may create.” Its disagreement instead concerns the extent of the departure—from 76
months at the top of the guidelines to the 300 months to which defendant was sentenced.6 But its
rationale is wanting.

The trial court’s principal explanation for the extent of its departure was the analogy it
drew to fourth-offense violent offenders. Under MCL 769.12(1)(a), such offenders must be
sentenced to at least 25 years in prison,7 and the trial court concluded that defendant “presents just
as much risk of harm to the community as a fourth violent offender does.” The majority faults the
trial court for “implicitly equating the seriousness of Brcic’s high-risk but nonviolent habitual
conduct to the seriousness of conduct committed by habitual violent offenders.” From these
objections, the majority concludes that it “cannot identify anything about this offense or offender
that would make a 25-year minimum sentence reasonable.”

That reasoning has far-reaching consequences. If “implicitly equating the seriousness of
Brcic’s high-risk but nonviolent habitual conduct to the seriousness of conduct committed by
habitual violent offenders” is impermissible, then the mere existence of a 25-year minimum for
some violent offenses in MCL 769.12(1)(a) functions as a de facto ceiling on minimum sentences
for any nonviolent offense.

The majority concedes that the guidelines did not adequately account for defendant’s
criminal history. Some adjustment was therefore warranted. Yet the majority forbids the trial
court from making this adjustment because defendant’s conduct is less “serious” than the conduct
addressed in MCL 769.12(1)(a). The implication of today’s holding is that defendant’s fifth OWI-
3rd (and seventh OWI overall) is somehow categorically less serious than a fourth violent felony.
Would an eighth OWI overall suffice? A tenth? Or will future courts take as the lesson that no
number of prior convictions for this “nonviolent” conduct can ever be treated as comparable to a
fourth violent offense? If repeated nonviolent conduct presents a comparable degree of danger to
the community as violent behavior, we should not forbid trial courts from drawing this kind of
proportionality-based comparison simply because the Legislature has prescribed a similar term for
a different category of repeat offenders.

Indeed, that approach conflicts with proportionality review itself. The principle of
proportionality “requires sentences imposed by the trial court to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” Milbourn, 435 Mich at 636
(emphasis added). Here, the trial court determined that the guidelines inadequately captured the
offender-specific circumstances reflected in defendant’s record and adjusted the sentence

6
The majority’s reasoning on this point is internally inconsistent within the span of a single
sentence. It first asserts that “the trial court failed to justify the departure,” implying that a more
robust explanation could support the imposed prison term. But the very next words are “and we
cannot identify anything about this offense or offender that would make a 25-year minimum
sentence reasonable,” suggesting that no explanation could suffice.
7
It is worth noting that a minimum sentence under MCL 769.12(1)(a) can be considerably longer
than 25 years. The statute only provides that qualifying habitual offenders be sentenced to “not
less than 25 years.”

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accordingly. The majority faults that adjustment based on the sentence’s similarity to one
prescribed for violent offenders in MCL 769.12(1)(a), because defendant’s conduct is less
“serious.” But this ignores the touchstone of proportionality review: the circumstances of the
offense and the offender. Moreover, if “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,” Steanhouse, 500 Mich at 475 (citation omitted), then proportionality review cannot turn
on whether a sentence happens to align with statutory penalties prescribed for other offenses.

The essence of the Lockridge remedy is that departure sentences are no longer examined
under a jeweler’s loupe. They are instead reviewed for abuse of discretion, which occurs only
when the trial court violates the principle of proportionality. The trial court did not do so here.
Defendant is a chronic recidivist who refuses to stop exposing his community to the risk of both
criminal behavior in general and drunk driving in particular. Vacating this sentence not only
undermines the balance Lockridge struck but risks reviving the appellate micromanagement that
decision sought to avoid. If sentencing courts may not analogize to the Legislature’s judgments
about risk and punishment as relevant reference points, their sentencing decisions will be
increasingly vulnerable to appellate second-guessing. Because trial courts will inevitably seek to
avoid getting reversed on appeal, the net result will be an unwarranted constraint on judicial
discretion.

IV. PPW

I also disagree with the majority’s decision to vacate defendant’s PPW sentence. Under
our precedents, a within-guidelines sentence is presumed proportionate, and the defendant bears
the burden of overcoming that presumption. To do so, he must “present unusual circumstances
that would render the presumptively proportionate sentence disproportionate.” People v Ventour,
349 Mich App 417, 430; 27 NW3d 660 (2023) (cleaned up). In this context, we have explained
that “ ‘[u]nusual’ means ‘uncommon, not usual, rare.’ ” Id. (citation omitted). In light of that
definition, it is unsurprising that we have never held a within-guidelines sentence to be
disproportionate on the basis of an “unusual circumstance.” This case provides no sound reason
to break that ground.

Defendant was convicted of possessing “any weapon or other item that may be used to
injure a prisoner or other person.” MCL 801.262(2). While awaiting trial, defendant violated the
jail’s razor-distribution policy by manipulating a razor into a weapon, which he then used in a
suicide attempt. The object he possessed plainly qualifies as an item that “may be used to injure a
prisoner,” as defendant in fact used it to injure himself. Defendant’s possession of this implement
in the jail is not “unusual” as that term is defined in Ventour. It is, if anything, a garden-variety
violation. This within-guidelines sentence should be affirmed without difficulty.

In an effort to avoid Ventour’s definition of “unusual”—and Lockridge’s effort to preserve
the sentencing guidelines to the greatest extent possible—the majority focuses on the
circumstances of defendant’s offense, reasoning that defendant’s “behavior is at the least extreme
end” of the conduct “encompassed by the PPW statute.” It observes that defendant “had no intent
to harm anyone other than himself,” “initially obtained the razor lawfully,” and “had no cellmates
at the time of his offense whom he could have harmed or who would have had access to the razor.”
The majority concludes that “individually each enumerated circumstance could be uncommon or

-7-
rare when sentencing a prisoner for possession of a weapon,” and “[t]aken together” they are
“unusual” under Ventour. This transforms our sentencing jurisprudence, for several reasons.

First, the majority’s reasoning rests on factual premises not established in this record. We
have no evidence regarding how often prisoners who possess weapons intend to harm others,
initially obtain them lawfully, or lack cellmates at the relevant time (or, indeed, what a “typical
PPW” consists of). Second, and more fundamentally, the statute contains no mens rea
requirement; a defendant need not intend to injure anyone to violate it. It is irrelevant whether
defendant “lacked intent and opportunity to harm another.” Nor does the statute turn on whether
the item was initially obtained lawfully or whether other inmates were immediately present.
Rather, the gravamen of the offense is the possession of an item capable of causing injury within
the jail environment.

Our precedent confirms this understanding. The statute at issue here, MCL 801.262(2), is
“substantively identical” to MCL 800.283(4), differing only in its application to jails rather than
prisons. People v Gratsch, 299 Mich App 604, 612; 831 NW2d 462 (2013), vacated in part on
other grounds 495 Mich 876 (2013). And in People v Krajenka, 188 Mich App 661, 663-664; 470
NW2d 403 (1991), this Court confronted a single-object challenge under Const 1963, art 4, § 24,
to MCL 800.281(4) and rejected it, holding that the statute served “the single object of maintaining
order and discipline in a prison environment.”8

Viewed through that lens, the purpose of MCL 801.262(2) is to maintain order and
discipline by preventing inmates from possessing implements capable of inflicting injury without
regard to the use intended for the item. Conflict may arise if other inmates learn that such an
implement exists. And even where, as here, defendant injured himself before that knowledge could
spread, the conduct itself compromised jail security. A squad’s worth of law enforcement officers
was diverted to respond to defendant’s actions, intervening to prevent further injury, notifying
other members of the county law enforcement hierarchy, and escorting emergency medical
responders into and out of the jail to transport defendant to a hospital. Each step drew personnel
away from their ordinary duties and undermined the jail’s ability to maintain order and discipline.
Defendant’s presentence investigation report (PSIR) further notes that he made “a statement that
apparently this event had an [effect] on some of the jail staff as at least two people quit.”

The majority attempts to compare this situation to Milbourn, but the comparison is
misplaced. In Milbourn, the defendant—who had no prior criminal record—was convicted of
violating MCL 750.110, which at the time9 prohibited breaking and entering “any occupied
dwelling house, with intent to commit any felony or larceny therein” and carried a maximum
penalty of 15 years in prison. Under People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972),
that meant the highest minimum sentence a trial court could impose was 10 years—two-thirds of

8
Both MCL 800.281(4) and MCL 800.283(4) are part of the same public act, 1909 PA 17, so
Krajenka’s remarks about the statute’s purpose are equally applicable to both sections.
9
The crime of home invasion was reorganized by 1994 PA 270, and this material was moved to
MCL 750.110a.

-8-
the statutory maximum. The trial court imposed that maximum-minimum sentence, which the
Supreme Court held was an abuse of discretion.

The defendant in Milbourn “broke into an apartment in which he himself had resided for
the apparent purpose of making an emotional and destructive statement about the breakup of his
relationship with the complainant.” Milbourn, 435 Mich at 667-668. The Court explained that
this conduct “d[id] not constitute a typical burglary” because “a more typical crime of that sort
involves entry into the home of a stranger for the purpose of committing a larceny or an assault.”
Id. at 667. The Court further emphasized that the defendant “had no criminal record.” Id. at 668.
“[B]y sentencing Mr. Milbourn to the maximum possible term, [the trial judge] left no room for
the principle of proportionality to operate on an offender convicted of a breaking and entering who
has a previous record for this kind of offense or whose criminal behavior is more aggravated than
in Mr. Milbourn’s case.” Id. at 668-669.

This case bears no resemblance to Milbourn. To begin with, although “[t]he burglary
statute under which Mr. Milbourn was convicted proscribe[d] a broad range of criminal conduct,”
id. at 668, the statute at issue here is far narrower. The statute in Milbourn required that the
defendant intended to commit some other criminal act, and those acts had a range of seriousness.
By contrast, MCL 801.262(2) contains no requirement of further criminal intent; it targets the
inherent instability caused by the presence of contraband capable of causing injury in a jail
environment. To the extent any range of seriousness is contemplated, it lies in the dangerousness
of the possible “injury”—itching powder might also “injure” fellow inmates, but it would do so
nonlethally.

Moreover, Milbourn’s concern about preserving room for more aggravated offenses arose
in the context of a trial court imposing the maximum constitutionally permissible sentence on a
first-time offender. Here, by contrast, the trial court imposed a within-guidelines sentence that was
well below the statutory maximum and did so for a defendant with an extensive criminal history.

Applying Milbourn’s concept of “leaving room” to invalidate a within-guidelines sentence
is a third fundamentally transformative holding. Defendant was assessed 75 PRV points and 25
OV points, placing him in cell F-III of the Class E grid, which recommends a minimum sentence
of 14 to 29 months. MCL 777.66. The upper limit was doubled to 58 months because of
defendant’s criminal history. MCL 777.21(3)(c). Cell F-III encompasses defendants with 75 or
more PRV points and 25 to 34 OV points, meaning defendant had the minimum scores necessary
to fall within that cell.

Under our caselaw, therefore, any minimum sentence between 14 and 58 months was
presumptively proportional. Yet the majority rejects a sentence at the top of that range because
defendant “lawfully obtained the razor, did not have a cellmate, used the razor against himself
alone with the intent of ending his life, and disposed of the razor in his toilet before his injuries
immobilized him.” These considerations are all unrelated to the social harm the PPW statute is
designed to prevent. Each one is also a reason he did not accumulate additional OV points; he
landed in cell F-III on the Class E grid because his criminal history and conduct threatening a penal
institution generated sufficient points to place him there. The majority’s reasoning therefore sits
uneasily with the Legislature’s decision to assign 25 OV points for a threat to the security of a
penal institution. MCL 777.49(a).

-9-
The majority frames the guidelines as having considered “most if not all of the negative
circumstances of the offender” but not countervailing aspects of the offense itself, yet its analysis
rests on mitigating inferences that the record does not clearly support. The majority characterizes
defendant’s act of placing the razor in the toilet as “dispos[ing] of the razor,” as though he were
scrupulously containing the risk of harm to others. But he could just as easily have been attempting
to conceal evidence of his offense in the event that his suicide attempt proved unsuccessful.
Indeed, according to an officer who searched the cell, “[t]here was a rag or toilet paper . . . in the
toilet as well.”

In any event, recasting defendant’s purported acts of restraint as mitigating the “negative
circumstances” of his offense amounts to awarding defendant anti-points for not committing
hypothesized crimes or aggravating acts. The fact that we can imagine ways this situation could
have been worse does not make what defendant did do any less of a threat to the security of the
Cheboygan County Jail, nor does it make defendant any less of a recidivist who merits a severe
punishment.

Most importantly, the majority’s objections to the trial court’s sentence are exclusively
offense-specific. Although it recites the familiar formulation that defendant’s sentence “is
disproportionate given the circumstances of Brcic’s offense and of Brcic as an offender,” repetition
of the offender component cannot obscure the reality that it plays no role in the analysis. The
majority relies solely on aspects of the offense itself to mandate a reduced sentence. That implies
that less serious conduct must be punished less severely, irrespective of the defendant’s criminal
history. The effect is to impose a judicial cap on where within a guidelines range a defendant may
be sentenced based solely on offense characteristics, discounting criminal history altogether. On
that logic, a 58-month sentence would be appropriate only for a defendant who had accumulated
something approaching the maximum 34 OV points and well in excess of the 75 PRV points
necessary to qualify for cell F-III.10 Any defendant whose numbers merely qualify him for the cell
apparently merits a proportionate reduction within the cell.

That approach effectively converts the sentencing grid from a system of discrete ranges
into a continuous spectrum. Needing to know where within a cell a defendant’s scores fall cannot
be reconciled with our caselaw holding that when “the trial court’s sentencing error does not alter
the imposed sentencing guidelines range, resentencing is not required.” People v Charboneau,
___ Mich App __, _; __ NW3d ___ (2024) (Docket No. 364596); slip op at 10. Nor can this
be squared with this Court’s acknowledgment in People v Posey (On Remand), 349 Mich App
199, 207; 27 NW3d 137 (2023), that our jurisprudence does not require a sentencing court to
explain why a within-guidelines sentence is reasonable and proportionate.

How can a criminal history that justified an upward departure for OWI-3rd not justify a
within-guidelines sentence for PPW? It is a question for which the majority has no answer. It
emphasizes the truism that “[w]e must consider the circumstances of the offense and the offender

10
Indeed, depending on how one interprets the majority’s statement that “the circumstances of the
offense did not call for a harsh sentence and perhaps even justified a downward departure,”
arguably no amount of additional criminal history could justify a maximum-minimum sentence in
the absence of sufficient aggravating circumstances of the offense itself.

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to assess whether a sentence is reasonable” and concludes that defendant’s choice not to harm
another individual is part of “the circumstances of the offense.” But the trial court was required
to consider both the offense and the offender. The majority acknowledges that defendant’s
extensive criminal history justifies an upward departure from the recommended minimum sentence
range for his OWI-3rd conviction, but that same criminal history also informed the trial court’s
sentence on his PPW conviction—and defendant received only a within-guidelines sentence for
that offense. Yet the majority says that defendant’s “criminal history is not so substantial as to
justify . . . a sentence at the top of the guidelines range.”

“The premise of our system of criminal justice is that, everything else being equal, the more
egregious the offense, and the more recidivist the criminal, the greater the punishment.” People v
Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (emphasis added). When everything else is
not equal, courts must weigh and compare. The principle of proportionality has never precluded
a severe sentence for a first-time offender when the offense itself warranted it. Nor has it prevented
substantial punishment for a less serious offense when the offender’s criminal history was
sufficiently extensive. Until, apparently, today, where the majority concludes that the less-serious
circumstances of defendant’s offense do not merely preclude an upward departure, but specifically
require a sentence at its preferred location within the guidelines range.

My fourth concern is that the majority’s invocation of defendant’s mental health leaves our
law in a state of uncertainty.11 The majority overturns the sentence because defendant’s suicide
attempt was “in part due to serious mental illness,” which was part of “the circumstances of the
offense” that courts “must” consider. This is said to qualify as “a sentence that is not proportionate
to the unusual circumstances of the offense and the circumstances of the offender.” Yet our
precedent makes clear that mental health is not a mandatory consideration at sentencing. Where a
defendant argued that the trial court failed to consider his psychiatric history, we held that “trial
courts are not required to expressly or explicitly consider mitigating factors at sentencing.” People
v Bailey, 330 Mich App 41, 63; 944 NW2d 370 (2019).12

11
The majority infers the existence of mental health issues from remarks defendant made during
his sentencing allocution. That said, his PSIR specifically notes that although he had previously
reported “requiring psychotropic medications,” he “wanted this running record changed to reflect
that he does not take nor needs to take” such medication. While not flatly contradicting his remarks
at allocution, these are in some tension with each other.
12
Bailey does not stand alone. In numerous unpublished opinions, this Court has repeatedly
recognized that sentencing courts are not required to expressly consider a defendant’s mental
health when imposing a sentence. See, e.g., People v Parrish, unpublished opinion of the Court
of Appeals, issued December 17, 2025 (Docket No. 372130); slip op at 2-3; People v Davis,
unpublished opinion of the Court of Appeals, issued February 19, 2025 (Docket No. 365572); slip
op at 4; People v Gooldy, unpublished opinion of the Court of Appeals, issued August 15, 2024
(Docket No. 361190); slip op at 9 n 12; People v Johnson, unpublished opinion of the Court of
Appeals, issued May 20, 2021 (Docket No. 352007); slip op at 5; People v Atkins, unpublished
opinion of the Court of Appeals, issued August 13, 2020 (Docket No. 347631); slip op at 7; People

-11-
The majority tries to get around Bailey by observing that these mitigating factors were
“available on the record and included within documents the sentencing court must consider.” But
that was precisely the situation in Bailey, where “the trial court was clearly aware of the contents
of the PSIR, which discussed Bailey’s schizophrenia diagnosis.” Id. at 64. It is all the more
remarkable that the majority holds that the trial court erred on this basis when defendant’s
sentencing memorandum in the trial court did not ask for relief due to mental illness—it says only
that he acted “[i]n a moment of despair.” As a result, this argument appears to be unpreserved, 13
which means Bailey is indistinguishable. The majority’s disagreement with Bailey does not
diminish its binding force. And although the majority tells the reader to “[s]ee” Judge GLEICHER’s
remarks from her concurring opinion in People v Bennett, 335 Mich App 409; 966 NW2d 768
(2021), it is not clear what relevance they could possibly have to the disposition of this case in
light of Bailey. Yes, trial courts may consider mental health as a mitigating factor. But Bailey
makes clear they are not obliged to do so, even when those mental health concerns are documented
in the PSIR.

Given the prevalence of mental illness among criminal defendants, elevating mental health
to an “unusual circumstance” risks transforming a narrow exception into a routine basis for
appellate resentencing. In doing so, we risk losing sight of our role as a reviewing court charged
with identifying abuses of discretion, not directing sentencing as though we sat on the trial court.

Finally, separate from the merits, I also question the prudence of today’s momentous
decision given that our ruling is so unlikely to affect the time defendant actually serves in prison.
Defendant is serving his PPW and OWI-3rd sentences concurrently, not consecutively. Although
the majority vacates both sentences, the fact that defendant received a 300-month minimum
sentence for OWI-3rd and only a 58-month sentence for PPW strongly suggests that even a reduced
OWI-3rd sentence will continue to control the length of incarceration after resentencing. In
identifying a first-ever “unusual circumstance” sufficient to invalidate a within-guidelines
sentence, today’s decision redefines how the presumption of proportionality will operate in every
single sentencing decision moving forward. But while this opinion will reshape Michigan
sentencing jurisprudence, resentencing on this offense is likely to be nothing more than an
academic exercise.

v Thomas, unpublished opinion of the Court of Appeals, issued March 1, 2018 (Docket
No. 335182); slip op at 14; People v Cornwall, unpublished opinion of the Court of Appeals,
issued October 20, 2015 (Docket No. 322410); slip op at 12; People v Stokes, unpublished opinion
of the Court of Appeals, issued January 22, 2013 (Docket No. 307529); slip op at 5.
13
As the majority notes, defendant did reference his mental health struggles in his allocution. But
the nature of an allocution is to “permit[] a defendant to speak in mitigation of the sentence.”
People v Petty, 469 Mich 108, 119; 665 NW2d 443 (2003). Since, per Bailey, “trial courts are not
required to . . . consider mitigating factors at sentencing,” there is no error to preserve if the trial
court was unpersuaded by defendant’s plea for mercy on this basis at allocution.

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V. CONCLUSION

Today’s decision is the latest turn in a long-running tug-of-war between the judiciary and
the Legislature over criminal sentencing. Prior appellate decisions have by turns undermined
legislatively conferred judicial discretion in the name of consistency (Coles, Milbourn), and
legislative efforts to promote consistency in the name of discretion (Lockridge). Today’s decision
manages to do both at once.

Lockridge, the most recent development, represented a compromise: The mandatory nature
of the sentencing guidelines was struck down, reducing consistency in sentencing, but this freed
trial courts to depart from the guidelines recommendation, subject only to deferential appellate
review for abuse of discretion. At the same time, and out of respect to the Legislature’s prerogative
to craft social policy, the Court left the guidelines in place as presumptively proportional
benchmarks. Today’s decision unsettles that balance by imposing new scrutiny on a reasonable
upward departure, while also vitiating the ostensible presumption of proportionality a within-
guidelines sentence should enjoy. Because I would not further erode the Legislature’s effort to
balance consistency and discretion, I respectfully dissent from the decision to vacate defendant’s
sentences.

/s/ Matthew S. Ackerman

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