COA 373611 PEOPLE OF MI V TYLER BENJAMIN SEXTON Opinion - Per Curiam - Unpublished 6/5/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
June 05, 2026
11:44 AM
V No. 373611
Shiawassee Circuit Court
TYLER BENJAMIN SEXTON, LC No. 2023-008201-FC
Defendant-Appellant.
Before: TREBILCOCK, P.J., and CAMERON and LIEVENSE, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions and sentences arising from a fatal
car accident. He was convicted of involuntary manslaughter, MCL 750.321, operating while
intoxicated causing death, MCL 257.625(4)(a), operating while intoxicated causing serious injury,
MCL 257.625(5), operating while license suspended or revoked causing death, MCL 257.904(4),
and operating while license suspended or revoked causing serious injury, MCL 257.904(5). The
trial court sentenced defendant 10 to 15 years’ imprisonment each for the manslaughter, operating
while intoxicated causing death, and operating without a license causing death convictions, and 38
to 60 months’ imprisonment each for the other convictions.
On appeal, defendant argues the trial court erred by denying his request for specific
performance of a plea agreement, that prosecutorial misconduct occurred, and that the trial court
failed to justify defendant’s upward departure sentences. For the reasons set forth in this opinion,
we affirm defendant’s convictions and sentences.
I. FACTS
A. THE CAR CRASH, INJURIES, AND DEATH
On January 29, 2022, while his license was suspended, defendant was drinking, became
intoxicated, got behind the wheel of a vehicle, and drove it through an intersection marked by a
stop sign while traveling about 80 miles per hour. His vehicle collided with another vehicle at the

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intersection, causing a rollover accident that seriously injured the other driver and killed one of the
two passengers in the vehicle that he struck. The other passenger, an infant, was unharmed. A
subsequent blood test showed that defendant’s blood alcohol content was 0.159.
Defendant was charged in 2023 with second-degree murder, MCL 750.317, operating
while intoxicated causing death, operating while intoxicated causing serious injury, operating
while license suspended or revoked causing death, and operating while license suspended or
revoked causing serious injury.
B. PLEA NEGOTIATIONS AND PROCEDURAL BACKGROUND
After defendant’s arraignment and a probable cause conference, the parties began
discussing a potential resolution of the case by plea. On September 11, 2023, the prosecuting
attorney e-mailed defense counsel the following:
As promised here is the written plea offer with a waiver of his prelim.
Dismiss count 1. Plea to remaining counts. With the offer, my estimated guidelines
are 50-100 [months].
As charged my estimated guidelines are 225-375/Life.
Please let me know if I don’t need to call witnesses for tomorrow.
Defense counsel responded that defendant “will be doing a voluntary bind-over to circuit court, at
a minimum to keep the written plea offer in tact [sic].”
Defendant waived his preliminary examination. Next, defendant requested a Cobbs1
conference, which was held on October 19, 2023, for the parties and trial court to discuss the
potential length of sentence that, on the basis of the information then available to the judge,
appeared to be appropriate. The court declined to state a likely sentence. Thereafter, defense
counsel called the prosecutor to request a Killebrew2 agreement for a sentence within the 50 to 100
month guidelines range. The prosecutor denied this request and no further discussion occurred.
Thus, in January 2024, defendant moved for specific performance of the plea offer outlined
in the prosecutor’s September 2023 e-mail. At the hearing on the motion, defense counsel
informed the court that the prosecution had made a new plea offer for second-degree murder if the
defense withdrew the motion, then asked to withdraw the motion so that the parties could negotiate.
The trial court granted defendant’s request. Those negotiations continued but apparently failed.
Defendant then refiled the motion for specific performance of the original plea.
At the hearing on the renewed motion, defense counsel argued that specific performance
was required because a condition of the plea deal was waiver of the preliminary examination,
1 People v Cobbs, 443 Mich 276, 283; 505 NW2d 208 (1993).
2 People v Killebrew, 416 Mich 189, 206-208; 330 NW2d 834 (1982).

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which defendant did, that defendant relied on the plea offer to his detriment by waiving his
preliminary examination, and that the requests for a Killebrew agreement or a Cobbs hearing were
not counteroffers and therefore did not signal rejection of the offer.
The court disagreed, finding that there was no evidence that defendant accepted any plea
offer. It explained that defense counsel’s e-mail to the prosecuting attorney could not “reasonably
be read as an acceptance of the plea agreement.” The court determined that defense counsel’s
request for a Killebrew agreement amounted to a counteroffer rejecting the original offer, or,
alternatively, if not a counteroffer, the Cobbs and Killebrew requests strongly indicated that the
parties never reached a meeting of the minds concerning the original offer. It continued that if
defendant thought he had accepted a plea early on, the defense would have requested a plea
hearing, but he did not. The court also found that defendant did not detrimentally rely on the
waiver of the preliminary examination.
C. PRETRIAL AND TRIAL PROCEEDINGS
The prosecution filed a motion in limine to preclude evidence about seat belt use and
defendant filed a motion in limine to preclude evidence of his prior criminal convictions and
driving record. At a pretrial hearing on April 8, 2024, the day before trial, the court heard argument
on the pretrial motions, and the prosecutor discussed defendant’s possible testimony at trial. The
prosecutor stated that if defendant testified, “we may introduce evidence regarding his involvement
with a[n] OWI [Operating While Intoxicated] charge and plea to impaired.” In response to a
question about possible relevance, the prosecutor explained that the evidence “would indicate
knowledge, on the part of the defendant, of the dangers of drunk driving.” The court suggested
this might be impermissible propensity evidence, and the prosecutor conceded that the deadline
for giving notice of the intent to introduce such evidence had passed.3 On this issue, the court
noted that “unless I see some law, that just seems like propensity . . . forbidden propensity.
And . . . I don’t see how that would come in. Maybe there’s something out there . . . that would
get it in. I’m just not seeing it.”
Trial commenced the next day. After the prosecution presented its case, defendant testified
about the events of the day that led up to the crash, which included him going to a bar and drinking
and eventually driving. On cross-examination, the prosecutor asked defendant a series of questions
relevant to this appeal. The prosecutor asked without objection whether, before the date of the
crash, defendant had driven without his license, and defendant admitted he had. The prosecutor
and defendant next had the following exchange:
Q. Is that the first time you ever got behind the wheel after drinking?
A. No, sir.
Q. How many times do you estimate you did that?
3 See MRE 404(b)(3)(C) (requiring the prosecutor to provide notice at least 14 days before trial of
the intent to offer evidence of other crimes at trial unless good cause is shown).

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A. That’s the second time.
Q. The second time you got behind the wheel after drinking.
The court then interrupted and held an unrecorded sidebar conference, after which the prosecutor
changed his line of questioning.
The defense rested. The next day the parties made closing statements, the court read the
jury instructions, and the jury began deliberating. The jury acquitted defendant of second-degree
murder. The jury found defendant guilty on the lesser included offense of involuntary
manslaughter, MCL 750.321, and of all remaining charges.
At sentencing, defendant’s guidelines were 50 to 100 months for manslaughter, operating
while intoxicated causing death, and operating without a license causing death, but the trial court
departed upward and imposed minimum sentences of 10 to 15 years for each. His guidelines for
operating while intoxicated causing serious injury and operating without a license causing serious
injury were 19 to 38 months and the court sentenced him to 38 to 60 months each on those counts.
This appeal followed.
II. SPECIFIC ENFORCEMENT OF A PLEA AGREEMENT
Defendant contends that he was entitled to specific performance of the original plea offer
because he accepted it and relied upon it to his detriment. We disagree.
A. STANDARDS OF REVIEW
This Court has previously reviewed for clear error and an abuse of discretion regarding a
court’s ruling on the issue of whether a defendant is entitled to specific performance of an
unfulfilled plea agreement. See People v Hannold, 217 Mich App 382, 388-389; 551 NW2d 710
(1996), overruled on other grounds by People v Smart, 497 Mich 950 (2015); People v Abrams,
204 Mich App 667, 673; 516 NW2d 80 (1994). “Clear error exists when the reviewing court is
left with a definite and firm conviction that a mistake was made.” People v Blevins, 314 Mich
App 339, 348-349; 846 NW2d 456 (2016). “An abuse of discretion occurs when the trial court’s
decision falls outside the range of reasonable and principled outcomes.” People v Rogers, 338
Mich App 312, 320; 979 NW2d 747 (2021).
B. ANALYSIS
“The authority of a prosecutor to make bargains with defendants has long been recognized
as an essential component of the efficient administration of justice.” People v Martinez, 307 Mich
App 641, 651; 861 NW2d 905 (2014) (quotation marks and citation omitted). “But there is no
constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”
Weatherford v Bursey, 429 US 545, 561; 97 S Ct 837; 51 L Ed 2d 30 (1977). And a trial court
retains the right to reject an agreement, provided the rejection does not invade the prosecutor’s
charging authority. People v Siebert, 450 Mich 500, 509-510; 537 NW2d 891 (1995).
When a defendant enters a guilty plea in exchange for the prosecutor’s promise of lenience,
and the promise goes unfulfilled, courts will not allow the plea bargain to go unfulfilled. People
v Hall, 399 Mich 288, 290; 249 NW2d 62 (1976); People v Brooks, 396 Mich 118, 121; 240 NW2d

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1 (1976). If a plea rests “in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971). “Where defendant’s
plea is induced by an unkept promise, the Court has discretion to choose between vacating the plea
or ordering specific performance as the appropriate remedy, with defendant’s choice of remedy
being accorded considerable weight.” People v Peters, 128 Mich App 292, 295-296; 340 NW2d
317 (1983); People v Siebert, 201 Mich App 402, 427; 507 NW2d 211 (1993).
“A defendant’s right . . . to have the prosecutor perform his promise in a plea bargaining
agreement does not inure to a defendant until after he has pled guilty or performed part of the plea
agreement to his prejudice in reliance upon the agreement.” In re Robinson, 180 Mich App 454,
459; 447 NW2d 765 (1989), citing People v Heiler, 79 Mich App 714, 719 n 4; 262 NW2d 890
(1977). “Detrimental reliance,” or prejudice, in the context of a plea agreement means that “no
other remedy is available which will return defendant to the position he enjoyed prior to making
the agreement at issue.” People v Gallego, 430 Mich 443, 456 n 10; 424 NW2d 470 (1988).
Here, defendant never tendered a guilty plea in court, and the court never formally accepted
one. Instead, defendant argues that he accepted the plea offer through the September 21, 2023, e-
mail to the prosecutor, and that he detrimentally relied on that plea offer by waiving his preliminary
examination.
The defense attorney’s statement in response to the prosecutor’s September 2023 e-mail
that defendant “will be doing a voluntary bind-over to circuit court, at a minimum to keep the
written plea offer in tact [sic]”, however, does not mean that defendant had accepted the offer
detailed in the e-mail. On the contrary, the unambiguous language in the e-mail indicated that
defendant sought merely to keep the offer open, which further indicated that he wanted to decide
later whether to accept it.
Defendant’s subsequent actions confirmed that he had not accepted the agreement. As the
trial court noted, defendant then sought a Cobbs conference and, when that did not provide clarity,
he sought a Killebrew agreement. The trial court reasonably concluded that the request for a
Killebrew agreement amounted to a counteroffer, and therefore a rejection of the original offer,
and that both events were evidence that negotiations were ongoing, not that defendant had accepted
an offer. In fact, the record shows that the parties continued to negotiate after defendant first filed
a motion for specific performance. Courts are not compelled to enforce “tentative” plea bargains.
In re Robinson, 180 Mich App at 459 (“Santobello and its progeny do not involve court-compelled
performance of a tentative agreement from which the prosecutor has withdrawn prior to judicial
approval.”).
Moreover, the parties never attempted to place the so-called agreement on the record. “The
court rules provide that before accepting a guilty plea, the trial court must ascertain both whether
a plea agreement has been made, and, if so, the terms of the agreement.” Hannold, 217 Mich App
at 386, citing MCR 6.302(A) and (C)(1)-(2). A plea bargain must be stated on the record or
reduced to a writing signed by the parties to be effective. See MCR 6.302(C)(1). Nothing of the
sort is in this record.

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Defendant argues that he detrimentally relied on the plea offer by waiving his preliminary
examination. Yet he cites no authority that the waiver of a preliminary examination constitutes
prejudice in these circumstances. Regardless, “[t]he right to a preliminary examination in
Michigan is a creation of statute,” and “[t]here is no federal or state constitutional requirement”
for a preliminary examination. People v Hunt, 442 Mich 359, 362; 501 NW2d 151 (1993) (citation
omitted). The examination simply determines “whether a crime has been committed and, if so,
whether there is probable cause to believe that the defendant committed it.” Id. It also serves to
provide notice of the nature of the accusations against the defendant. Id.
Critically, on appeal, defendant fails to explain how he relied to his detriment on the
prosecutor’s e-mail when he waived the preliminary examination. Given that he was found guilty
beyond a reasonable doubt at trial of involuntary manslaughter and the other charges, it is
extremely unlikely he would have had better success at a preliminary examination under the
probable-cause standard. People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003) (“The
probable-cause standard of proof is, of course, less rigorous than the guilty-beyond-a-reasonable-
doubt standard of proof.”). For these reasons, the trial court did not err by ruling that defendant
was not entitled to specific performance of the plea agreement. Hannold, 217 Mich App at 390-
391.
III. PROSECUTORIAL MISCONDUCT/ERROR
Defendant argues that the prosecutor violated his due-process rights by impeaching him
with evidence of his prior act of driving while intoxicated on the ground that such evidence was
inadmissible. We disagree.
A. ISSUE PRESERVATION AND STANDARDS OF REVIEW
Defendant contends that he preserved his claim of prosecutorial misconduct (1) by
objecting to the prosecutor’s stated intention to cross-examine defendant with prior-acts evidence
at a pretrial conference and (2) because the prosecutor changed his line of questioning after the
trial court held an unrecorded sidebar conference during trial.
In general, preserved “[i]ssues of prosecutorial misconduct are reviewed de novo to
determine whether the defendant was denied a fair and impartial trial.” People v Bennett, 290
Mich App 465, 475; 802 NW2d 627 (2010). “In order to preserve an issue of prosecutorial
misconduct, a defendant must contemporaneously object and request a curative instruction.” Id.
(citation omitted). Defense counsel did not object at trial when the prosecutor cross-examined
defendant about his driving history and the record does not reflect whether defense counsel
objected during the sidebar. Because no timely objection was made, we find that this claim of
error is unpreserved. Id.
In addition, although defendant frames his claim of prosecutorial error in constitutional
terms, not all trial errors amount to constitutional due-process violations. People v Blackmon, 280
Mich App 253, 261; 761 NW2d 172 (2008), citing People v Toma, 462 Mich 281, 296; 613 NW2d
694 (2000). “Merely framing an issue as constitutional does not make it so.” Blackmon, 280 Mich
App at 261. “Where there is no allegation that prosecutorial misconduct violated a specific

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constitutional right, a court must determine whether the error so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Id. at 262.
Defendant argues that the prosecutor violated MRE 404(b) and MRE 609(a). In this
context, defendant’s claim of error is nonconstitutional in nature. Blackmon, 280 Mich App at 262.
Thus, “[t]o avoid forfeiture of an unpreserved, nonconstitutional plain error, the defendant bears
the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious,
and (3) the plain error affected substantial rights.” People v Jones, 468 Mich 345, 355; 662 NW2d
376 (2003) (citations omitted). “Reversal is warranted only when the plain, unpreserved error
resulted in the conviction of an actually innocent defendant or when an error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings independent of the defendant's
innocence.” Id., citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
Defendant argues that questions the prosecutor asked on cross-examination regarding his
prior drinking and driving were inadmissible under MRE 609 and MRE 404(b) and permitting
them denied him a fair trial. We disagree.
MRE 609 permits the introduction of certain felony convictions for purposes of impeaching
a witness’s credibility. See People v Snyder, 301 Mich App 99, 105; 835 NW2d 608 (2013). MRE
404(b) makes admissible certain “other acts” evidence subject to limits and provides as follows:
(1) Evidence of any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with
the character.
(2) If it is material, the evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, scheme, plan, or system in doing an act,
knowledge, identity, absence of mistake, or lack of accident.
(3) In a criminal case, the prosecutor must:
(A) provide notice of any such evidence that the prosecutor intends to offer
at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor
intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing at least 14 days before trial, unless the court, for good
cause, excuses pretrial notice, in which case the notice may be submitted in any
form.
Under MRE 403, even otherwise relevant evidence may be excluded “if its probative value
is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

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Our Supreme Court has established a four-part analytical framework to address
admissibility under MRE 404(b). People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114
(1993), amended on other grounds 445 Mich 1205 (1994). This standard requires:
First, that the evidence be offered for a proper purpose under Rule 404(b);
second, that it be relevant under Rule 402 as enforced through Rule 104(b); third,
that the probative value of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request, provide a limiting
instruction to the jury. [People v Denson, 500 Mich 385, 398; 902 NW2d 306
(2017), citing VanderVliet, 444 Mich at 55.]
Here, during cross-examination, the prosecutor asked defendant a series of questions
regarding his suspended driver’s license, as well as his marijuana and alcohol consumption on the
day of the accident. The following exchange occurred without any objection:
Q. You didn’t have your license on that day. Prior to that day and leading
up to it, had you driven without your license?
A. I have before, yes.
Q. Okay. And how close in time to that accident, to the crash?
A. I don’t know.
Q. More than one time?
A. It had been a while, that’s for sure.
Q. More than one time?
A. Yes.
Q. More than two?
A. Probably.
Q. Is that the first time you ever got behind the wheel after drinking?
A. No, sir.
Q. How many times do you estimate you did that?
A. That’s the second time.
Q. The second time you got behind the wheel after drinking.
After this exchange, the court held a sidebar and this line of questioning ended.

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As an initial matter, defendant’s reliance on MRE 609 misses the mark. Nothing in this
line of questioning elicited evidence that defendant had been pulled over, charged, arrested, or
convicted of a driving offense, driving without a license, or a drunk driving-related offense.
MRE 609 simply is not implicated by this testimony. Snyder, 835 Mich App at 105-106.
Applying MRE 404(b) is more complicated. It is unclear for what purpose the prosecutor
elicited the testimony about defendant’s prior driving without a license and getting “behind the
wheel after drinking.” The testimony is not obviously improper propensity evidence to prove that
defendant drove without a license and was drinking on the day of the accident because defendant
testified to as much. Instead, the defense was that he did not intend to cause any injuries. Also,
defense counsel did not object to any of these questions. Jones, 468 Mich at 355 (“The purpose
of requiring objections to be timely . . . is to give the trial court an opportunity to correct the
error.”).
That said, assuming MRE 404(b) applies, we hold that the trial court did not abuse its
discretion in admitting—and the prosecution did not engage in misconduct in eliciting—testimony
about defendant once previously getting “behind the wheel after drinking” under the four-part
framework from VanderVliet.
First, the prosecution plausibly sought to introduce the evidence for a proper purpose.
Under MRE 404(b)(2), evidence of prior acts may be admitted whenever it is relevant to a
noncharacter purpose such as to show knowledge, intent, or lack of accident. People v Starr, 457
Mich 490, 496-497; 577 NW2d 673 (1998). At the pretrial hearing, the prosecutor argued that
evidence of defendant’s past OWI charge or plea to impaired driving “would indicate knowledge,
on the part of the defendant, of the dangers of drunk driving.” The prosecution may also have
been seeking to impeach defendant by contradiction, given that he had testified that, compared
with his brother driving, defendant thought it was “a better and safer idea” for him to drive, and
that he “did everything that [he] could” to avoid the accident. People v Wilder, 502 Mich 57, 63-
64; 917 NW2d 276 (2018) (citation omitted) (“Generally speaking, impeachment by contradiction
can be a proper purpose for the admission of other-acts evidence.”). These were plausible proper
purposes for asking if he had previously gotten “behind the wheel after drinking.” People v
Werner, 254 Mich App 528, 539; 659 NW2d 688 (2002) (permitting admission of evidence of
prior drunk driving incident to show knowledge and absence of mistake in second-degree murder
charge).
Second, asking about previously getting “behind the wheel after drinking” was relevant to
the charges, particularly that of second-degree murder. “The elements of second-degree murder
are (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse.” Id. at 531 (quotation marks and citation omitted). “Malice is defined as the intent to
kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard
of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”
Id. (quotation marks and citation omitted). Malice can be established by proof of “intent to do an
act that is in obvious disregard of life-endangering consequences.” Id. (quotation marks and
citation omitted). The prosecution alternatively needed to prove that defendant “acted in a grossly
negligent manner” for the lesser included offense of involuntary manslaughter.

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This Court has held that prior incidents of drinking and driving are admissible under MRE
404(b) as relevant evidence of malice in second-degree murder cases. In Werner, there was
evidence that “defendant knew from a recent prior incident that if he drank, he might experience a
blackout and drive recklessly and irresponsibly.” Werner, 254 Mich App at 531. The evidence
was relevant because defendant’s previous blackout “made it more probable than not that he was
aware this could happen to him.” Id. at 540. This Court has applied the logic behind Werner to
similar cases involving evidence of impaired driving and charges of second-degree murder. See,
e.g., People v Bergman, 312 Mich App 471, 493-494; 879 NW2d 278 (2015) (applying Werner to
hold that prior-act evidence involving impaired driving through prescription medication abuse was
relevant to the malice element of second-degree murder).
Defendant having previously gotten behind the wheel after drinking showed that he was
aware of the risks of driving under the influence of alcohol and disregarded that such behavior
causes death or great bodily harm. The second prong of VanderVliet was satisfied here. Denson,
500 Mich at 402-403.
Third, we hold that the probative value of the evidence is not substantially outweighed by
any unfair prejudicial effect. VanderVliet, 444 Mich at 74. Here, the jury heard only that
defendant had once before gotten “behind the wheel after drinking” and the defense did not object.
The details of the prior incident were not disclosed to the jury. Nothing about a general reference
to this conduct would logically have shocked the jury, created bias, or elicited sympathy or anger.
See People v Parrott, 335 Mich App 648, 681; 968 NW2d 548 (2021). In contrast, the jury was
presented with extensive evidence, including testimony from defendant himself, regarding
defendant’s decision to drive a vehicle without a license and while impaired that resulted in death
and serious bodily injury. As such, the prosecutor’s questions were not unduly prejudicial.
Werner, 254 Mich App at 540 (probative value of the prior-act evidence outweighed the danger of
unfair prejudice).
Fourth, there was no limiting instruction requested or given concerning the evidence, and
this Court “cannot find error requiring reversal where a curative instruction could have alleviated
any prejudicial effect.” People v Callon, 256 Mich App 312, 329-330; 662 NW2d 501 (2003).
The trial court could have read to the jury the standard instruction regarding evidence of other acts
to limit its consideration for certain purposes, but the defense did not request it. See M Crim JI
4.11. Under VanderVliet, the unobjected-to admission of the brief disputed testimony was not
improper nor unduly prejudicial to defendant.
Concerning the notice required, the prosecutor concedes that timely notice was not given
under MRE 404(b)(3)(C). But assuming that rule applies, the 14-day notice requirement is not
absolute and can be overcome by a showing of good cause. Also, one purpose of the requirement
is to “ensure that the defendant has an opportunity to object to and defend against this sort of
evidence.” People v Hawkins, 245 Mich App 439, 454; 628 NW2d 105 (2001).
Here, the parties and the court discussed the prosecution’s potential cross-examination of
defendant about his prior conviction during the pretrial conference, and when the prosecution
asked defendant about prior instances of driving without a license and whether he had previously
“got behind the wheel after drinking” the defense did not object. Jones, 468 Mich at 355.
Defendant was not unfairly surprised or deprived of an opportunity to “marshal arguments

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regarding both relevancy and unfair prejudice.” People v Jackson, 498 Mich 246, 261; 869 NW2d
253 (2015). In this context, any error was harmless. Id. at 278.
The trial court did not plainly err in allowing the unobjected-to testimony because it was
admissible under MRE 404(b) and VanderVliet, nor did the prosecution engage in misconduct in
eliciting this testimony. Jones, 468 Mich at 355; Blackmon, 280 Mich App at 262. Defendant has
not shown that he was denied a fair and impartial trial. For these reasons, defendant has failed to
show that any reversible error occurred on the basis of his claim of prosecutorial misconduct.
IV. SENTENCING DEPARTURE
Defendant contends that his sentence was disproportionate and that the trial court failed to
justify the extent of its upward departure from the applicable sentencing guidelines. We disagree.
A. STANDARD OF REVIEW
“A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458
(2017) (quotation marks and citation omitted). “[T]he standard of review to be applied by appellate
courts reviewing a sentence for reasonableness on appeal is abuse of discretion.” People v
Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). Specifically, at issue is “whether the trial
court abused its discretion by violating the principle of proportionality . . . . ” Dixon-Bey, 321 Mich
App at 520 (quotation marks and citation omitted). “An abuse of discretion occurs when the trial
court’s decision falls outside the range of reasonable and principled outcomes.” Rogers, 338 Mich
App at 320. The trial court’s explanation “must be sufficiently detailed to facilitate appellate
review.” People v Smith, 482 Mich 292, 311; 754 NW2d 284 (2008).
B. ANALYSIS
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.’ ”
Steanhouse, 500 Mich at 474, quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
“ ‘[T]he 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 472, quoting Milbourn, 435 Mich at 661. This Court in Dixon-Bey set forth as follows:
[R]elevant factors for determining whether a departure sentence is more proportion-
ate than a sentence within the guidelines range continue to 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. [Dixon-Bey, 321 Mich App at 525 (citations omitted).]
In addition, the sentencing court may consider the defendant’s misconduct in custody, any
expressions of remorse, and the potential for rehabilitation. Id. at 525 n 9 (citations omitted). “In
imposing an out-of-guidelines sentence, a trial court must justify the sentence imposed in order to
facilitate appellate review, which includes an explanation of why the sentence imposed is more
proportionate to the offense and the offender than a different sentence [i.e., one within the

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guidelines] would have been.” People v Lydic, 335 Mich App 486, 500-501; 967 NW2d 847
(2021) (quotation marks and citation omitted).
Here, the court explained its findings and rationale for imposing an out-of-guidelines
sentence. Defendant’s involuntary manslaughter, operating while intoxicated causing death, and
operating while license suspended causing death convictions were Class C felonies. The
applicable sentencing grid for those convictions went up to level VI, which was for 75+ Offense
Variable (OV) points, and defendant scored 130 or 140 points for each. Defendant had a Prior
Record Variable (PRV) score of 27 (level D), thus his guidelines were 50 to 100 months. For each
of these convictions, the court departed upward, imposing sentences of 120 to 180 months.
Explaining its departure, the court expressed its belief that the sentencing grid did not fully account
for some factors in this case:
First, the applicable sentencing grid only counts for 75 points of offense variables.
In this case, the Court has assessed 130 points on offense variables, greatly ex-
ceeding the highest score contemplated by the guidelines. That tells the Court that
the legislative guidelines do not consider the full scope of the criminal behavior on
display in this case. The guidelines consider each offender[’]s criminal history
generally, but they do not always provide a nuanced look at the details.
This Court has previously upheld a departure sentence where the sentencing court offered a similar
rationale. See People v Cline, 276 Mich App 634, 649-653; 741 NW2d 563 (2007) (holding that
where the sentencing grid cut off at 75+ OV points, and the defendant’s score of 135 OV points
greatly exceeded the highest score contemplated by the grid, the sentencing court’s reliance on this
fact was an appropriate consideration in departing from the guidelines).
Additionally, the court explained why defendant’s PRV 6 score (a subset of his total PRV
score) did not fully reflect the gravity of the offense. PRV 6 reflects the offender’s “relationship
to the criminal justice system.” MCL 777.56(1). Here, defendant was assessed five points, which
MCL 777.56(1)(d) prescribes when “[t]he offender is on probation or delayed sentence status or
on bond awaiting adjudication of sentencing for a misdemeanor.” The court explained, however,
that the “guidelines do not consider . . . the nature of that bond.” Here, the trial court noted that
defendant already was “on bond for operating while impaired . . . and driving without a license”
when the collision occurred, and that when he committed the crime, he was “also operating [while]
impaired and driving without a license.” The court found that this fact indicated defendant was
not deterred nor rehabilitated by his “earlier brush with the law” and the “threat of additional
criminal sanctions.” Therefore, the court concluded that defendant posed a risk to public safety if
he remained free and able to drive, stating that incapacitation through a “prolonged period of
separation from society” was the only way to prevent that risk.
Next, the court addressed OV 5, which covers “psychological injury to a member of a
victim’s family.” See MCL 777.35. The court noted that its only options were to assess zero or
15 points, but that 15 points was not enough because it “presume[s] that the trauma endured by
every survivor is equal.” The court then referred to “two uniquely devastating victim-impact
statements.” The first was from the mother of the seriously injured driver, and the other was from
the mother of the passenger who died. The court found these statements “deeply moving,” and
found that 15 points for OV 5 gave “inadequate weight to this families’ [sic] suffering.”

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The trial court’s detailed explanations demonstrate that it did not abuse its discretion by
imposing sentences above the guidelines either in terms of proportionality or the extent of the
departures. Dixon-Bey, 321 Mich App at 525.
In addition, the court specifically noted that PRV 6 did not adequately reflect the nature of
the offense because it did not account for defendant’s being on bond for the same kind of dangerous
conduct that underlay this case. Similarly, the court concluded that OV 5 failed to give adequate
weight to the psychological injuries that the victims’ family members suffered. In particular, the
two impact statements given by the victims’ family members described the overwhelming
psychological trauma resulting from defendant’s conduct. Similarly, the court explained why PRV
6 did not adequately account for defendant being on bond for comparable dangerous conduct.
Defendant disagrees, but he does not identify any errors in the court’s analysis. Instead,
he simply asserts that the court did not adequately account for the facts of the case and failed to
justify the extent of its departure. But, as we have explained, the court explained its reasons for
departing from the guidelines, and for the extent of the departure, the minimum of which was just
20 months above the guideline range. See People v Rosa, 322 Mich App 726, 748; 913 NW2d
392 (2018) (holding that a 19-month upward departure was not disproportionate).
Affirmed.
/s/ Christopher M. Trebilcock
/s/ Thomas C. Cameron
/s/ Andrew J. Lievense

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