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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BRIAN MARVIN TJAPKES, Defendant-Appellant.

UNPUBLISHED March 20, 2012

No. 302342 Muskegon Circuit Court LC No. 10-058862-FH

Before: RONAYNE KRAUSE, P.J., and DONOFRIO and FORT HOOD, JJ. PER CURIAM. Defendant appeals as of right his sentence imposed after his jury conviction of unlawfully driving away a motor vehicle, MCL 750.413. Defendant was sentenced to 6 to 25 years' imprisonment. We affirm. Around midnight on January 8, 2010, the victim was driving her van between sites of her job cleaning office buildings. It was cold and snowy and defendant was out with his dog. He asked the victim to give him a ride to a gas station. The weather was snowy and cold, so the victim agreed because she felt sorry for the dog. The first gas station was closed and defendant had the victim drive to two additional locations. While driving around, the victim began to believe that defendant had her "on a wild goose chase" and she became nervous. She told defendant she had cancer because she thought it would make him sympathetic. At the last place they had stopped, defendant leaned across the victim, opened the driver's door, and pushed her out of the van with both his hands. The victim landed on her back and rolled away from the van because she was afraid she was going to get run over. Defendant drove away. The victim's van was recovered about a mile away, as was defendant. The keys to the victim's van were in defendant's pocket. At sentencing, the recommended minimum sentence range under the legislative guidelines was 12 to 48 months and the trial court imposed a sentence of 6 to 25 years for five reasons. The trial court stated: [t]his lady picked you up on a cold night to give you a favor and I think you probably had the dog there to manipulate nice people like this. After she gave you a ride and after she told you she was a cancer survivor you opened her car door and pushed her out in a parking lot on a cold winter night. -1-

The other reasons the trial court gave for the upward departure were: [n]umber two, you have 18 parole violations Mr. Tjapkes. Number three, the agent says you did not put any effort into your program, you were merely going through the motions. Number four, you have a very high relapse and high recidivism rate and number five, in Allegan County you're convicted of malicious use of a telecommunications device where you actually threatened to cut her [defendant's current spouse's] head off. As to proportionality, the trial court stated: [m]oreover, the Court believes this sentence is proportionate to the seriousness of your conduct and record and produces a proportionate criminal sentence regardless of any potential errors in scoring the sentencing guidelines that may affect the recommended sentencing guidelines range. So what's not scored in the guidelines, number one, I've already done it, the victim's condition on a cold winter night; her being

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