The 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).
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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.
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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.
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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.
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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
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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.
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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).
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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
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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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