PEOPLE OF MI V TROY CAMERON MCSORLEY

Michigan Supreme Court Lansing, Michigan

Megan K. Cavanagh, Chief Justice Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood,

Justices

Order

June 20, 2025 168210 & (14)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 168210

COA: 373116

Shiawassee CC: 2023-008457-FH TROY CAMERON McSORLEY, Defendant-Appellant.

_________________________________________/ On order of the Court, the application for leave to appeal the January 6, 2025 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is

DENIED.

WELCH, J. (dissenting). In the seminal case of People v Posey, 512 Mich 317 (2023), this Court held that within-guidelines sentences must be reasonable. We further held that although within- guidelines sentences are presumptively reasonable, they are not inherently reasonable. See id. Despite Posey's dictate, I am unaware of any case in which this Court has reversed a within-guidelines sentence for being substantively unreasonable.¹I am concerned, therefore, that Posey is toothless. The instant appeal highlights my concerns. Defendant Troy C. McSorley pleaded no contest to breaking and entering a building with intent to commit a larceny. The Michigan Department of Corrections (MDOC) recommended that defendant spend six months in custody. Despite that recommendation, the trial court imposed a sentence of 28 to 180 months in custody—more than quadrupling MDOC's recommended sentence. For the reasons expressed in this statement, I believe that defendant's sentence is unreasonable. Accordingly, I respectfully dissent from the Court's order denying defendant's application for leave to appeal.

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I. BACKGROUND

Police officers arrested defendant on suspicion of breaking into an office building. Although nothing had been taken from the building, a door and window were damaged. Investigators connected defendant to the break-in after finding blood at the scene that matched defendant's DNA. At his plea hearing, defendant stated that he did not remember what happened on the night of the break-in. He acknowledged, however, that the break-in occurred during a period where he was drinking heavily—often to the point of blacking out. Indeed, defendant explained, there was a night around the time of the break-in when he was drinking at home, blacked out, and then woke up at a truck stop. With that in mind, defendant acknowledged that the DNA evidence proved that he was guilty. Although defendant had a fairly extensive criminal history, his record reflected that he had not been in trouble in 14 years (since 2008). At sentencing, defendant's attorney explained that defendant had "excellent employment at General Motors" and that he was worried that extended time in custody could put defendant's employment at risk. In addition, both defendant and his attorney highlighted defendant's commitment to maintaining his sobriety. Finally, defendant accepted responsibility and apologized for his actions.

The trial court calculated defendant's minimum sentence guidelines range at 10 to 28 months. MDOC recommended that the trial court sentence defendant to serve six months in custody and two years on probation. Defendant's attorney asserted that MDOC's recommendation was "appropriate under the circumstances." The trial court rejected MDOC's recommendation, and it instead imposed a sentence of 28 to 180 months in custody—more than four times longer than MDOC's recommended sentence. In explaining its rationale, the trial court refused to credit the fact that defendant's last criminal conviction was in 2008. Instead, the trial court told defendant that although his convictions occurred "quite some time ago," they "happened, and" are "part of you."

With that in mind, the trial court asked defendant:

Why come to Shiawassee County and break into our businesses? I just—I don't understand, it doesn't make any sense to me except you—there is criminality with you that has not been addressed. I don't know what's been going on with you for the last ten years or so, maybe you just didn't get caught." [Emphasis added.]

Considering defendant's heavy drinking, moreover, the trial court wondered aloud whether defendant had been "continuing to do B&Es," i.e., breakings and enterings. "How do we know you weren't? We just don't." (Emphasis added.) The trial court similarly refused to credit defendant for accepting responsibility and apologizing for his actions. Instead, the trial court asked rhetorically, "how do I treat the victim?" before chastising defendant for

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a sentencing allocution that was "about me, me, me, I, I, I[.]" Finally, the trial court rejected defendant's request that it focus on substance abuse treatment because it had not heard such a request until the sentencing hearing.

The Court of Appeals rejected defendant's application for leave to appeal his sentence. People v McSorley, order of the Court of Appeals, entered January 6, 2025 (Docket No. 373116). This appeal followed.

II. DISCUSSION

The Court reviews a sentence for abuse of discretion. People v Steanhouse, 500 Mich 453, 471 (2017). An abuse of discretion occurs when a sentencing court imposes an unreasonable sentence. Id. A sentence is unreasonable if it fails to adhere to the principle of proportionality. Id. 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.' " Id. at 474, quoting People v Milbourn, 435 Mich 630, 636 (1990). To impose a reasonable and proportionate sentence, a sentencing court must consider the four Snow factors. See People v Snow, 386 Mich 586 (1972). Those four factors "are: (1) 'reformation of the offender'; (2) 'protection of society'; (3) 'disciplining of the wrongdoer'; and (4) 'deterrence of others from committing like offenses.' " People v Boykin, 510 Mich 171, 188 (2022), quoting Snow, 386 Mich at 592. An appellate court begins reviewing a within-guidelines sentence by presuming that the sentence is reasonable. Posey, 512 Mich at 359. Importantly, although a "defendant bears the burden of demonstrating that their within-guidelines sentence is unreasonable or disproportionate," the presumption of proportionality is not insurmountable. Id. at 359-

360.

I believe that the trial court in this case imposed an unreasonable sentence for unreasonable reasons. Specifically, the trial court appears to have relied upon its suspicion that defendant committed crimes that were not alleged to have occurred and upon its sense that—despite defendant's apologies and express commitment to personal reformation— defendant was not sufficiently apologetic for his actions.

First, on several occasions, the trial court supported its sentence by highlighting the possibility that defendant had committed crimes that no prosecutor has accused him of committing. In casting aside the fact that defendant had gone 14 years without being subject to criminal prosecution, the trial court stated, "I don't know what's been going on with you for the last ten years or so, maybe you just didn't get caught." (Emphasis added.) Later, when considering defendant's drinking problem, the trial court asked whether defendant was "continuing to do B&Es . . . . How do we know you weren't? We just don't."

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By considering crimes that no person has accused defendant of committing, the trial court violated core principles of fairness and due process. "A defendant is entitled to a presumption of innocence as to all charged conduct until proven guilty beyond a reasonable doubt, and that presumption is supposed to do meaningful constitutional work as long as it applies." People v Beck, 504 Mich 605, 621 (2019). See also US Const, Am XIV. The presumption of innocence is a "bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' " In re Winship, 397 US 358, 363 (1970), quoting Coffin v United States, 156 US 432, 453 (1895). With the presumption of innocence in mind, we have held that a sentencing court may not use acquitted conduct to increase a defendant's sentence. See Beck, 504 Mich at

625. If a sentencing court may not use acquitted conduct to increase a defendant's sentence, it should go without saying that a sentencing court may not use conduct that no person has accused defendant of committing to increase a sentence.²Not only would such a consideration run afoul of the principle that criminal defendants are presumed to be innocent until proven guilty, it would violate the other essential tenets of our criminal justice system. If a sentencing court considers conduct that no person has accused a defendant of committing, it has necessarily denied the defendant the right "to be informed of the nature and cause of the accusation" against them. US Const, Am VI. And it has similarly denied the defendant the opportunity to "obtain[] witnesses in his or her favor[.]"

Const 1963, art 1, § 20. After all, how can criminal defendants obtain witnesses in their favor if they are unaware of the accusations against which they are defending themselves?

Second, the trial court appears to have selected a sentence at the high end of the guidelines range because defendant was insufficiently apologetic toward the victim. That conclusion was unreasonable. At sentencing, the trial court asked rhetorically, "how do I treat the victim?" It then chastised defendant for his sentencing allocution being all "about me, me, me, I, I, I[.]" In castigating defendant's focus on himself, the trial court ignored the fact that defendant's allocution focused on himself only insofar as it featured defendant accepting responsibility and apologizing for his actions and expressing a commitment to getting sober.

Having established that the trial court relied upon unreasonable considerations when imposing its sentence, I move to the heart of the matter: the sentence is too long. See Lee,

974 F3d at 676. Consider the seriousness of the offense. See Steanhouse, 500 Mich at

474. This case involves what can be described only as a run of the mill breaking and

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I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 20, 2025

p0617

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Clerk entering. The damage was minimal, and defendant took nothing from the property. The human cost was also quite low: there were no witnesses, and nobody but defendant appears to have been harmed physically or emotionally. Thus, " 'the seriousness of the circumstances surrounding the offense,' " Steanhouse, 500 Mich at 474, quoting Milbourn,

435 Mich at 636, provides no reason to select a sentence near the top of the guidelines range.

We must also examine " 'the seriousness of the circumstances surrounding the . . . offender.' " Id. In this case, defendant had gone 14 years without a criminal conviction. He had solid employment, and he also had a drinking problem. Defendant and his attorney expressed a commitment to defendant's sobriety, and the trial court provided no reason to doubt defendant's sincerity on that matter.

In sum, considering the first two Snow factors, there is little reason on the record to believe that defendant is uniquely incapable of reform, nor is there a strong reason to suspect that society needs much protection from defendant. See Snow, 386 Mich at 592. With respect to the third and fourth Snow factors, meanwhile, it is clear that defendant needed to be disciplined, and that others must be deterred from committing similar offenses. See id. But there is no obvious reason why those goals could not be accomplished through MDOC's recommended six-month sentence. At bottom, therefore, forcing defendant to spend more than two years in prison fails to satisfy the principle of proportionality. See Steanhouse, 500 Mich at 471. For that reason, the within-guidelines sentence is too long. See Lee, 974 F3d at 676.

Viewing the matter more broadly, I have previously expressed my concern that this Court has not "reversed an above-guidelines sentence as disproportionate on substantive, rather than procedural, grounds." People v Carr, ___ Mich ___, ___; 15 NW3d 602, 605 (2025) (WELCH, J., dissenting) (emphasis added). A similar concern now applies to the reasonableness of a within-guidelines sentence. If we are unwilling to say that a within- guidelines sentence is too long—especially in a case like this, where the trial court based its harsh sentence upon questionable considerations, and where there was nothing uniquely serious or odious about the offense or offender—we risk reducing Posey to a mere abstraction and holding, for all intents and purposes, that within-guidelines sentences are inherently reasonable, as opposed to presumptively reasonable. For those reasons, I respectfully dissent.

HOOD, J., did not participate.

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