People v. Smith
People v. Smith
Opinion of the Court
At issue in this case is whether the trial judge fulfilled his obligation to articulate a substantial and compelling rationale for the sentences that he imposed. For each conviction, defendant’s minimum sentence was an extreme upward departure from the range set by the sentencing guidelines. We conclude that the judge articulated adequate reasons to support a departure, but failed to justify the extent of this departure.
We hold that the departure was an abuse of discretion because the trial judge did not establish why the sentences imposed were proportionate to the offense and the offender. Therefore, we vacate defendant’s sentences and we remand this case to the trial judge for resentencing and articulation of the rationale for the extent of any departure made on remand.
FACTS AND PROCEDURAL HISTORY
This is a case involving sexual abuse of a child. The victim’s mother began taking the victim to defendant’s home for day care when she was one year old. Over time, the mother developed a friendship with defendant and with his wife. The victim, whose family fife was fatherless, chaotic, and disorganized, began to see defendant as a father figure. When the mother was sent to a halfway house for nine months for drug abuse, the victim and her younger sister moved into defendant’s home. Eventually, the mother moved to Atlanta, Georgia, taking her children with her. However, the families stayed in touch and remained close. The victim and her sister returned to
When the mother lost her job in Atlanta, defendant and his wife offered to rent her a room. She accepted. After the school year ended, she sent her daughters back to Michigan to live with defendant and his wife. The victim was nine years old at the time. The mother followed her daughters to Michigan at the end of the summer. She, her two daughters, and their younger brother all shared a room in defendant’s home.
The victim testified that defendant began to sexually abuse her when she was nine years old. All the assaults were similar. When the victim was alone on a couch with defendant watching television, defendant would touch her buttocks and penetrate her vagina and anus with his finger. The victim testified that defendant’s actions frightened her and that defendant would stop assaulting her when she got up and left the room. The victim also testified that defendant threatened that he would evict her family from the house if she told anyone about the assaults.
The assaults continued over a 15-month period, until the victim revealed them to a friend. The information made its way to the victim’s mother, who called the police. Defendant was charged with and a jury convicted him of three counts of first-degree criminal sexual conduct (CSC-I).
This is the type of case that I think manifests the absolute worst type of exploitation. A child was placed in a position of trust and care with the defendant and his wife. This was at a time a 10 year old child had come from a clearly dysfunctional family, and this was an opportunity for [defendant] to provide a sense of refuge and a sense of stability clearly for [the victim].
There was no male figure in her life, and [defendant] had that opportunity to fill that role, which could have been not only a blessing for him but certainly a blessing for [the victim].
Those of us who have daughters certainly understand that fathers are in a very unique position with regard to their daughters and that we have the opportunity in many respects based on our relationship and the nature of the relationship that we have with our daughters to model or pattern the iype of healthy or unhealthy relationship that young women then grow up to have with men in the future as adults.
And so what happened here? Here this 10 year old child looking for, and in fact starved for a positive adult male role model ends up being over a period of about 15 months a sex toy for the defendant. To what extent she will be damaged in the future, who knows? One certainly hopes that she will be able to do well.
But certainly this was a circumstance where [defendant] chose to exploit this relationship. And then in his testimony to blame the child, categorize her as a liar.
And through this particular ordeal forcing the victim, this 10 year old, to have to go through a rather, for her, for a 10 year old, the kind of frightening gynecological type of examination certainly adding to the trauma in this particular*298 case, I think that certainly the Michigan Supreme Court in People versus Babcock has stated that if the Court is going to go outside the guidelines, the Court must in fact look to objective and verifiable facts and circumstances in evidence.
Certainly it is an objective and verifiable fact that the defendant stood in the role of a parental figure for a child who had none. That this was a child who was sexually exploited over a period of 15 months. That’s verifiable.
These are the characteristics that I think don’t adequately get covered in the guidelines. They don’t. I mean it’s unimaginable to me to think that a 10 year old who may be fearful of the fact that she may lose the roof over her head for herself, her mother and her two siblings, is forced to silently endure this kind of sexual exploitation.
The guidelines didn’t calculate that, but I am.
On a departure evaluation form, the judge summarized his reasons for the departure: (1) defendant’s role as a child-care provider,
Defendant applied for leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other peremptory action.
THE TRIAL COURT’S INITIAL BURDEN TO ARTICULATE SUBSTANTIAL AND COMPELLING REASONS FOR DEPARTURE
Under MCL 769.34(3), a minimum sentence that departs from the sentencing guidelines recommendation requires a substantial and compelling reason articulated on the record. In interpreting this statutory requirement, the Court has concluded that the reasons relied on must be objective and verifiable. They must be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.
The trial court may not base a departure “on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.”
On appeal, courts review the reasons given for a departure for clear error.
Under MCL 769.34(7), the court must advise a defendant that he or she may seek appellate review of a sentence that is more severe than the guidelines recommendation. There is no preservation requirement for review of such a sentence.
That sexual abuse occurred over a long period is an objective and verifiable reason for departure. The abuse in this case was not something that was completed quickly. For more than a year, the victim undoubtedly suffered psychological stress from the realization that defendant might abuse her again and again. This fact is of considerable worth in determining defendant’s minimum sentence. Also, it is a fact that does not exist in all criminal sexual conduct cases. Hence, the trial judge did not abuse his discretion in concluding that the long period of abuse provided a substantial and compelling reason for departure.
The judge also relied on the fact that defendant threatened to retaliate by evicting the victim and her family if she disclosed to anyone his predatory sexual behavior. This is objective and verifiable because the threat was external to the minds of those involved and could be confirmed on the record. The judge did not abuse his discretion in concluding that this fact provided a substantial and compelling reason to depart. It was not considered in the guidelines, and making such a threat to a child could cause significant psychological anguish. It forced the child to choose between reporting the defendant’s repeated criminal assaults and protecting her family from homelessness. The threat was distinct enough to actively and strongly draw the judge’s attention.
The judge additionally relied on the gynecological examination the victim underwent as a result of defendant’s sexual abuse. Defendant contends that such examinations are to be expected when sexual abuse has been alleged and
However, under the unique circumstances of this case, the trial judge’s conclusion that the gynecological examination provided a substantial and compelling reason for departure was not an abuse of discretion. The evidence indicates that the examination added considerably to the victim’s trauma. This trauma was demonstrated by the victim’s testimony that the examination was uncomfortable and embarrassing. More significantly, it was demonstrated by her behavior during the examination. Under these circumstances, the judge did not abuse his discretion in concluding that this repercussion of defendant’s behavior was of considerable worth in determining the length of defendant’s minimum sentence.
PROPORTIONALITY
Having concluded that the trial judge cited substantial and compelling reasons to justify a departure, we turn to the question whether the reasons also justified the particular departure: a minimum sentence that is 15 years more than the top of the guidelines range. “The obligation is on the trial court to articulate a substantial and compelling reason for any departure.”
MCL 769.34(3) states:
A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in*304 chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. [Emphasis added.]
We have stressed that this statutory language requires the trial court to “justify the particular departure in a case, i.e., ‘that departure.’ ”
Appellate courts are obliged to review the trial court’s determination that a substantial and compelling reason exists for departure.
The “principle of proportionality. . . defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed. ”
As we noted in Babcock, the very purpose of the sentencing guidelines is to facilitate proportionate sentences. We stated:
Under the guidelines, offense and prior record variables are scored to determine the appropriate sentence range. Offense variables take into account the severity of the criminal offense, while prior record variables take into account the offender’s criminal history. Therefore, the appropriate sentence range is determined by reference to the principle of proportionality; it is a function of the seriousness of the crime and of the defendant’s criminal history.[30 ]
A sentencing departure is appropriate when “there are substantial and compelling reasons that lead the trial court to believe that a sentence within the guidelines range is not proportionate to the seriousness of the defendant’s conduct and to the seriousness of his criminal history... .”
Here the trial judge gave no explanation for the extent of the departure independent of the reasons given
One potential means of offering such a justification is to place the specific facts of a defendant’s crimes in the sentencing grid. When that is done in this case, the result suggests that the sentence imposed was disproportionate. Defendant’s crimes are classified as class A felonies.
Prior Record Variable Level (Total PRV Points)
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The prior record variable (PRV) level is determined by the total points assessed for the prior record variables
Defendant had a total PRV score of 20 points, which corresponds to a PRV level C.
The trial judge sentenced defendant as if his OV and PRV scores corresponded to the E-VI, F-V or F-VI cell of the grid.
It is compelling to compare defendant’s departure sentence, 30 to 50 years (360 to 720 months), with the recommended minimum sentences on the applicable
Moreover, the substantial and compelling reasons on which the judge based his departure were related to the nature of the offense, not to the extent of defendant’s criminal history. Put otherwise, the departure reasons pertained to defendant’s OV score, not his PRV score. With regard to the OV score, it is theoretically possible for a defendant to receive a total of 590 points for a crime against a person, such as CSC-I.
However, that is not the case here, because defendant’s OV score is within the lower OV levels on the grid. Thus, the trial judge must explain why the reasons for the departure that he articulated warranted a drastic departure from the highest minimum available for a defendant with a similar PRV score. The burden will be heavy, because the sentence imposed is literally off the charts for a defendant with a criminal background similar to that of this defendant.
A comparison of defendant’s sentences to the sentences recommended for other offenders who committed the same type of crime suggests that defendant’s sentences might be disproportionate. Although the atrocity of any criminal sexual conduct offense is not to be minimized, proportionality is still judged by weighing both the nature of the offense and the offender’s criminal history. Given the fact that defendant had no criminal history, the 30-year minimum sentence imposed for each conviction might be a disproportionate departure.
Certainly, a trial court that is contemplating a departure is not required to consider where a defendant’s sentence falls in the sentencing range grid. However, we think that reference to the grid can be helpful, because it provides objective factual guideposts that can assist sentencing courts in ensuring that the “ ‘offenders with similar offense and offender characteristics receive substantially similar sentences.’ ”
The trial court should note which variables it is considering in such a comparison. It should explain why its reasons for departure are as significant as the characteristics that would produce an equally lengthy recommended minimum sentence under the guidelines.
Turning to the facts in the instant case, it is obvious that CSC-I involving a nine-year-old child is a heinous crime. It damages children, families, and friendships. But all CSC-I cases do not wreak the same amount of damage. That the sexual abuse in this case occurred over a 15-month period is extraordinarily disturbing, as the trial judge recognized. That defendant threatened to evict the victim and her family if she reported the crime is also of considerable importance in determining defendant’s sentence. That the victim underwent a traumatic gynecological examination is also of consequence.
The trial judge articulated some appropriate reasons for departure, but failed to explain why those reasons justify the extent of the departure. Furthermore, it is not readily apparent why such a substantial departure
As noted earlier, the sentencing guidelines were designed to promote uniformity in sentencing. One of the purposes of the proportionality requirement is to minimize idiosyncrasies. We do not suggest that trial courts must sentence defendants with mathematical certainty.
Ultimately, in reviewing sentences, appellate courts examine the reasons articulated for departure. The trial court’s articulation must be sufficiently detailed to facilitate appellate review. This includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been. Here the trial judge faded to offer any valid explanation justifying why he chose to sentence defendant to minimum terms of imprisonment of 30 years. As such, we must vacate defendant’s sentences and remand the case to the trial judge so that he may articulate why this level of departure is warranted or resentence defendant.
RESPONSE TO JUSTICE CORRIGAN’S DISSENT
Contrary to Justice CORRIGAN’s assertion, our approach is completely consistent with Babcock and the language of MCL 769.34. We emphasize in this opinion
The Legislature adopted the guidelines to promote uniform sentencing across the state.
Justice CORRIGAN relies on MCL 769.34(11), which states:
If, upon a review of the record, the court of appeals finds the trial court did not have a substantial and compelling reason for departing from the appropriate sentence range, the court shall remand the matter to the sentencing judge or another trial court judge for resentencing under this chapter.
Justice Corrigan misconstrues this provision by failing to read it in the context of the rest of the statute.
In MCL 769.34(3), the Legislature put the burden on the trial court to place on the record one or more substantial and compelling reasons for a particular departure.
Moreover, simply requiring a court to articulate substantial and compelling reasons for a departure would not promote uniformity. Trial courts would not be constrained to impose only those sentences that they can justify. Under the rule advocated by Justice CORRIGAN, defendants with similar offense and offender characteristics could receive widely divergent departure sentences. Justice CORRIGAN would not subject sentences based on a departure to full appellate review. Any arguably reasonable sentence would be upheld, even if it were not proportionate to the offense and the offender. A lack of meaningful review would inevitably encourage idiosyncratic sentencing. Such a result is contrary to the Legislature’s express intent.
Our observation that grounding a departure in the sentencing guidelines will help to explain the extent of the departure does not mean that departure can be reduced to a mathematical equation. To the contrary, mathematical precision in sentencing is neither required nor possible. Nonetheless, the difference between the sentence imposed based on a departure and the recommended minimum sentence range under the guidelines is relevant to the proportionality analysis. When Justice CORRIGAN advocates upholding defendant’s sentences even though the judge failed to justify this difference, she disregards Babcock.
Justice CORRIGAN relies heavily on the United States Supreme Court decision in Gall v United States.
Much of the Gall Court’s analysis is inapplicable to Michigan’s indeterminate sentencing guidelines. The federal sentencing guidelines are not mandatory.
To the extent that Justice CORRIGAN relies on Gall to reject the use of a rigid mathematical formula, her reliance is misplaced. As previously indicated, we do not adopt a rigid mathematical formula. Instead, consistently with Gall, we stress that the difference between a departure sentence and one within the recommended guidelines range is relevant to the proportionality analysis.
Justice CORRIGAN buoys her position with facts that are not relevant. For instance, it is true that the trial judge in this case could have imposed a life sentence. But this fact does not bear on whether he justified the sentence he actually imposed. Similarly, Justice CORRIGAN spends considerable time discussing the behavior of defendant’s wife during the trial. But even if the wife’s behavior could be attributed to defendant, the judge did not cite it as a basis for departure. Accordingly, it cannot support the departure made.
Justice CORRIGAN suggests that our analysis resembles de novo review.
The analysis set forth in this opinion is consistent with MCL 769.34 and with the caselaw interpreting that statute. Moreover, it is not overly burdensome, and it advances the Legislature’s goal of sentencing uniformity. The same cannot be said for Justice CORRIGAN’S analysis.
SUMMARY
In order to assist trial courts in fulfilling their statutory obligations, we offer the following summary:
(2) The trial court must articulate one or more substantial and compelling reasons that justify the departure it made and not simply any departure it might have made.
(3) The trial court’s articulation of reasons for the departure must be sufficient to allow adequate appellate review.
(4) The minimum sentence imposed must be proportionate. That is, the sentence must adequately account for the gravity of the offense and any relevant characteristics of the offender. To be proportionate, a minimum sentence that exceeds the guidelines recommendation must be more appropriate to the offense and the offender than a sentence within the guidelines range would have been.
(5) When fashioning a proportionate minimum sentence that exceeds the guidelines recommendation, a trial court must justify why it chose the particular degree of departure. The court must explain why the substantial and compelling reason or reasons articulated justify the minimum sentence imposed.
(6) It is appropriate to justify the proportionality of a departure by comparing it against the sentencing grid and anchoring it in the sentencing guidelines. The trial court should explain why the substantial and compelling reasons supporting the departure are similar to conduct that would produce a guidelines-range sentence of the same length as the departure sentence.
CONCLUSION
Some of the reasons that the trial judge articulated as the basis for the departure are legitimate. However, those reasons fail to justify the severity of the minimum sentences that he imposed. From our review of the record and of the judge’s reasons for departure, it is unclear why a minimum sentence of 30 years’ imprisonment is warranted for this defendant.
We vacate defendant’s sentences and remand this case to the trial judge for resentencing and for an explanation of the extent of any departure made on remand. We deny leave to appeal in all other respects.
MCL 750.520b(l)(a).
Generally, the punishment for CSC-I is imprisonment for any term of years or life. MCL 750.520b(2). When the trial court chooses to sentence a defendant to a term of years, it must fix both the minimum and maximum
Because the judge referred to defendant’s status as a child-care provider, defendant argues that the judge violated MCL 769.34(3)(a). That statute prohibits a judge from exceeding the guidelines because of a defendant’s legal occupation. The record indicates that defendant was not legally-working as a child-care provider during the period in question. His wife was primarily responsible for the baby-sitting services they advertised, and the home was not licensed to provide child-care. We infer from the judge’s statements that he referred to the child-care position because defendant had exploited his position of trust as a child-care provider for the vulnerable victim. We conclude that the judge did not depart on the basis of defendant’s occupation.
People v Smith, unpublished opinion per curiam of the Court of Appeals, issued July 19, 2007 (Docket No. 267099).
Id. at 5-6.
Id. at 6.
Id.
480 Mich 1014 (2008).
People v Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003).
MCL 769.34(3)(b).
Babcock, 469 Mich at 264.
MCL 769.34(7); MCR 2.517(A)(7).
Babcock, 469 Mich at 257-258.
Id. at 267 n 21, quoting former MCL 769.33(1)(e)(iv), which specified some of the duties at the former Sentencing Commission in connection with the sentencing guidelines as added by 1994 PA 445.
The judge also referred to defendant’s exploitation of the victim’s vulnerability as a basis for departure. However, this exploitation was, at least partially, already accounted for in the guidelines under offense variable 10 (OV 10). MCL 777.40. An offense characteristic taken into account in determining the sentencing range may not be a basis for departure unless the judge finds that the characteristic was given inadequate or disproportionate weight. MCL 769.34(3)(b).
In her dissent, Justice Corrigan argues that this Court should infer that the judge considered the assessment of points for OV 10 and found the assessment inadequate. We disagree. The judge’s statement that the “guidelines didn’t calculate that,” referring in part to exploitation, implies that he failed to recognize that points are assessed under the guidelines for exploitation of victim vulnerability. Given this statement and the lack of any specific reference to OV 10, we will not infer that the judge concluded that OV 10 inadequately considered the factor of exploitation. Our conclusion is not the equivalent of requiring “magic words” for departure, as Justice Corrigan suggests. Post at 336. We are simply refusing to infer that the judge meant one thing when he suggested the opposite.
Babcock, 469 Mich at 259.
People v Hegwood, 465 Mich 432, 437 n 10; 636 NW2d 127 (2001) (emphasis in original).
Babcock, 469 Mich at 259.
Id. at 259 n 13.
MCL 777.16(y).
MCL 777.62.
The judge assessed 20 points for PRV 7 (subsequent and concurrent felonies) because, as a result of this case, defendant had two concurrent felony convictions. MCL 777.57(1)(a).
It appears that the judge erroneously assessed 50 points for OV 11. However, defendant admits that 50 points should have been assessed for OV 13 (continuing pattern of criminal behavior). Thus, a correction would not affect defendant’s OV score.
MCL 777.21(1)(c); MCL 777.62.
See MCL 777.62.
MCL 777.22(1) requires the court to score the following offense variables for all crimes against a person (maximum scores are in parentheses): OV 1 (aggravated use of a weapon) (25 points), MCL 777.31(1)(a); OV 2 (lethal potential of weapon) (15 points), MCL 777.32(1)(b); OV 3 (physical injury to victim) (100 points), MCL 777.33(1)(a); OV 4 (psychological injury to victim) (10 points), MCL 777.34(1)(a); OV 7 (aggravated physical abuse) (50 points), MCL 777.37(1)(a); OV 8 (asportation of victim) (15 points), MCL 777.38(1)(a); OV 9 (number of victims) (100 points), MCL 777.39(1)(a); OV 10 (15 points), MCL 777.40(1)(a); OV 11 (50 points), MCL 777.41(1)(a); OV 12 (contemporaneous felonious acts) (25 points), MCL 777.42(1)(a); OV 13 (50 points), MCL 777.43(1)(a); OV 14 (offender’s role) (10 points), MCL 777.44(41)(a); OV 19 (security threats or interference with justice) (25 points), MCL 777.49(1)(a); and OV 20 (terrorism) (100 points), MCL 777.49a(1)(a). Obviously, many of these variables could not be scored in this case or in most criminal sexual conduct cases. I list them to demonstrate that more than 100 points are possible under PRV level C.
Babcock, 469 Mich at 267 n 21, quoting former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. The statutory sentencing guidelines are based on statewide sentencing data. They reflect the Legislature’s judgment about how the variables of mitigation and aggravation should be applied
A departure cannot be justified on the sole basis that a crime is heinous. All criminal-sexual-conduct cases involving young children are heinous. Certainly the Legislature did not overlook this basic fact when establishing sentencing guidelines for these crimes.
Babcock, 469 Mich at 260 n 14.
Id. at 259 n 13.
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. This provision was the part of the Code of Criminal Procedure that created the Sentencing Commission. The Legislature repealed the provisions in the code pertaining to the commission, including MCL 769.33(1)(e)(iv), after it enacted the sentencing guidelines. See 2002 PA 31. But the fact that it repealed the provision as part of the elimination of the Sentencing Commission does not mean that the Legislature abandoned its goal of uniformity in sentencing. Rather, it represents the fact that the Legislature concluded that the Sentencing Commission had done all that it could to further that goal.
MCL 769.34(2).
See MCL 769.34(3); Babcock, 469 Mich at 259-260.
Justice Corrigan is mistaken when she opines that, by requiring courts to justify the particular departure, we read into the statute something that is not there. The Legislature has required the trial court to state a substantial and compelling reason justifying the departure. MCL 769.34(3). Our opinion today merely provides guidance to trial courts on how they may formulate and articulate that justification. It is,
However, appellate courts may not review the record to search for reasons to uphold a sentence that the trial court failed to justify. Babcock, 469 Mich at 258-259.
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. Justice Corrigan’s conclusion that the Legislature desired that a less stringent standard of uniformity pertain to departure sentences, post at 338, is incorrect. The Legislature permitted departures with the understanding that the guidelines could not account for all conceivable scenarios. However, that fact does not alter the overarching goal of uniformity in all sentencing. Rather, it constitutes the Legislature’s recognition that uniformity can be advanced only if departures from the guidelines are limited to cases involving unusual circumstances.
Gall v United States, 552 US_; 128 S Ct 586; 169 L Ed 2d 445 (2007).
Id. at _; 128 S Ct at 591.
Id. at _; 128 S Ct at 594-595.
Id. at _; 128 S Ct at 595.
Id. at _; 128 S Ct at 595.
Id. at _; 128 S Ct at 594.
People v Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007).
Babcock, 469 Mich at 257-258.
Gall, 552 US at _; 128 S Ct at 591.
Babcock, 469 Mich at 258-259.
Post at 334 n 4.
Concurring Opinion
oconcurring). I concur fully with the majority opinion. I write separately to respond briefly to Justice CORRIGAN’s dissent and to emphasize one point that I believe is implicit in the majority opinion, but ought to be made explicit.
First, what separates the dissenting justices from the majority justices is not the former’s conviction that defendant’s 30-year minimum sentences “fall within the range of reasonable opinions regarding what sentences are appropriate in this case.” Post at 357. Rather, it is the latter’s conviction that the Legislature’s purposes in enacting the sentencing guidelines—
A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. [MCL 769.34(3) (emphasis added).][1 ]
Thus, we can derive the following from this statute: (1) it is the sentencing court that must “stated on the record the [substantial and compelling] reasons for departure,” not the appellate court, and (2) the sentencing court must articulate its reasons in support of “that” departure, not “some” departure, not “any” departure, and not “a” departure.
These requirements are an obvious function of the overall purpose of the guidelines, which is to diminish the sentencing discretion of individual judges, and to temper
Were Justice CORRIGAN’S position to prevail, the reforms achieved by the sentencing guidelines would be significantly undermined. The goal of reasonably uniform punishments, in which similarly situated offenders are ac
Justice CORRIGAN would essentially exempt from these standards that part of a potential criminal sentence lying outside the guidelines range, which in the present case would exempt nearly 90 percent of defendant’s potential sentence from even rudimentary appellate review.
The sentencing guidelines were designed to restrain judicial sentencing discretion, so that punishments would effectively be determined by the people through their representatives, rather than by the serendipity of whether Lenient Larry or Maximum Mike happened to be the sentencing judge. The direction of the dissents is toward the restoration of a system in which citizen judgments concerning appropriate criminal punishments would be supplanted by the decision-making of individual judges. In place of what has proven to be a successful reform of the criminal-justice system, and the attainment of a heightened rule of law, the dissenting justices, by eroding the sentencing guidelines, would restore a heightened rule of judges.
Second, I would emphasize that the majority does not assert that analogizing to the sentencing grid constitutes
However, one additional logical method by which to justify a particular departure, perhaps not worth belaboring because of its obviousness, is for the court simply to compare a sentence to others imposed in reasonably similar cases. This method derives from the basic principle underlying our sentencing system: securing a proportionate criminal sentence. A proportionate sentence is one that adequately reflects “ ‘the seriousness of the defendant’s conduct and... the seriousness of his criminal history.’ ” Ante at 305, quoting People v Babcock, 469 Mich 247, 264; 666 NW2d 231 (2003). Assessing the seriousness of a defendant’s conduct and his criminal history necessarily entails that a sentencing court will engage in some comparison between criminal offenses. That is, the seriousness of a defendant’s conduct and a defendant’s criminal history is not measured in a vacuum; rather, in answering the question of how “serious” a crime is, the court is essentially asking itself whether that crime is of greater or lesser gravity than other criminal offenses and “determining where, on the continuum from the least to the most serious situations, an individual case falls.... ” People v Milbourn, 435 Mich 630, 654; 461 NW2d 1 (1990). Thus, a comparison of a departure in one case to those imposed in reasonably similar cases constitutes one reasonable method by which a sentencing court may seek to fashion a proportionate sentence.
It may well be that judges initially will primarily consider reasonably similar cases decided by themselves
Thus, along with analogizing to the sentencing grid, one additional method for justifying a particular departure is to simply look to sentences imposed in reasonably similar cases. Given the current limited availability of such information in the legal marketplace, this will not always be possible, but where it is available, it should be welcomed and used. In appropriate instances, such information can assist the sentencing court in properly placing a case along a continuum of reasonably similar cases, and thereby fashioning a more proportionate and uniform sentence.
Justice CORRIGAN criticizes the majority for relying on a “single word” — “that”—in MCL 769.34(3). Post at 352. However, this Court “interprets every word, phrase, and clause in a statute to avoid rendering any portion of the statute nugatory or surplusage,” Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006) (emphasis added). To recall merely one previous decision in accord with this rule, we have placed great weight on whether “a” or “the” was employed in a statute. See Robinson v Detroit, 462 Mich 439, 461-462; 613 NW2d 307 (2000).
Justice Corrigan would essentially compress what is in reality a two-part burden on the sentencing court into a single burden, by requiring the court to ask simply if “substantial and compelling” reasons exist for a departure. If so, then no further explanation would be required concerning the extent of a departure. She reaches this conclusion by removing from context MCL 769.34(11), which addresses appellate review generally, instead of harmonizing that provision with MCL 769.34(3), which sets forth a sentencing court’s specific burdens under the sentencing guidelines.
Although Justice CORRIGAN asserts that the majority “enacts a new, corollary sentencing regime by extending the sentencing guidelines to apply to departure sentences,” post at 330, all that the majority asserts in reality is that departure sentences are no more exempt from the restraint of legal rules than non-departure sentences. The articulation of a “substantial and compelling” reason for departing from the guidelines does not constitute an all-purpose warrant for a departure of any magnitude.
Reflecting a theme running throughout her opinion, Justice Corrigan asserts that the majority opinion will result in “incomplete scrutiny” of departure sentences. Post at 334 n 4; see also note 6 of this opinion. However, in pursuing the goals of uniformity and proportionality among departure sentences, it is hardly compelling to argue that this is better not done at all than through imperfect means.
Justice Corrigan asserts that departure sentences are “not governed by the general rule of uniformity” that applies to guidelines-range sentences, because “[d]eparture sentences generally involve less quantifiable facts____” Post at 338, 337-338. However, “quantifiabiliiy” is not the distinguishing characteristic between guidelines-range sentences and departure sentences. That is, a departure sentence may be based on nothing more than the fact that the guidelines do not fully account for the sheer number of victims harmed by the defendant, a readily “quantifiable” number. Moreover, departure sentences must be based upon “objective and verifiable” factors, People v Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003), hardly a synonym for “non-quantifiable.” There are not two tiers of criminal sentences in Michigan, one in which uniformity and proportionality are sought, and another in which they are not.
Justice Corrigan expresses her belief that “case comparison will [not] become meaningfully less arbitrary over time,” and that there exists a “potential to increase disparities in local sentencing practices.” Post at 331-332 n 2. However, better that there be imperfect comparisons than no comparisons at all, as apparently preferred by Justice Corrigan. Over time, as sentencing data accumulate under the guidelines, as I believe it will, such comparisons will increasingly tend to become valuable in achieving reasonable sentencing uniformity and proportionality. I fail to see any “inconsisten[cy],” id. at 332, in my belief that comparisons of cases constitute one essential and obvious means of furthering these goals.
Dissenting Opinion
(dissenting). I dissent from the majority’s decision to remand this case to the trial court for
Finally, the trial court must consider proportionality. If a trial court finds that there are substantial and compelling reasons to believe that sentencing a defendant within the [sentencing] guidelines range would not he proportionate to the seriousness of the defendant’s conduct and criminal history, then the trial court should depart from the guidelines. [People v] Babcock, [469 Mich 247,] 264 [666 NW2d 231 (2003)]. “In considering whether, and to what extent, to depart from the guidelines range, a trial court must ascertain whether taking into account an allegedly substantial and compelling reason would contribute to a more proportionate criminal sentence than is available within the guidelines range.” Id. at 272, citing MCL 769.34(3). “In determining whether a sufficient basis exists to justify a departure, the principle of proportionality — that is, whether the sentence is proportionate to the seriousness of the defendant’s conduct and to the defendant in light of his criminal record — defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed.” Id. at 262. In other words, the principle of proportionality requires that a sentence “be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” People v Milbourn, 435 Mich 630, 636, 651; 461 NW2d 1 (1990).
“This Court reviews for clear error a trial court’s factual findings at sentencing.” People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005). Specifically, the “existence or nonexistence of a particular sentencing factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error.” People v Babcock, 469 Mich 247, 273; 666 NW2d 231 (2003) (internal quotation marks, brackets and citations omitted). “The determination that a particular sentencing*327 factor is objective and verifiable should be reviewed by the appellate court as a matter of law” Id. (internal quotation marks, brackets and citations omitted). Finally, a “trial court’s determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion.” Id. at 274 (internal quotation marks and citations omitted). “An abuse of discretion occurs when the trial court chooses an outcome falling outside the permissible principled range of outcomes.” Id.
Here, defendant’s guidelines range, for the minimum sentence, was 9 to 15 years. The trial court sentenced defendant to a minimum of 30 years’ imprisonment. At sentencing, the trial court stated reasons for the departure:
“Certainly it is an objective and verifiable fact that the defendant stood in the role of a parental figure for a child who had none. That was a child who was sexually exploited over a period of 15 months. That’s verifiable.
“These are characteristics that I think don’t adequately get covered in the guidelines. They don’t. I meant [sic] it’s unimaginable to me to think that a 10 year old who may be fearful of the fact that she may loose [sic] the roof over her head for herself, her mother and her two siblings, is forced to silently endure this kind of sexual exploitation.
“The guidelines didn’t calculate that, but I am.”
In the Departure Evaluation Form, the trial court reiterated the previously stated reasons for departing from the guidelines’ recommended minimum sentence range, and added an additional reason:
“Defendant served as child care provider for nine years and molested the victim over a 15 month period.
“Defendant threatened to evict the child victim and her family if she told anyone about the [criminal sexual conduct].
“Child victim was forced to undergo a painful physical exam as a result of the incident.”
We conclude that the articulated reasons for the depar*328 ture were objective and verifiable. [People v] Abramski, [257 Mich App 71, 74; 65 NW2d 501 (2003)]. It is objective and verifiable that defendant served as child care provider for nine years. The lower court record reveals that, with the exception of a three year period, defendant and [his wife, Carol Smith,] provided child care for the victim in their home from the time she was one year old in 1994 until the victim was 10 years old. During the time the victim was out of defendant’s home, he kept in close contact with her through cards and phone calls. According to defendant’s own testimony, the victim “became like part of the family” during the time he cared for her.
Additionally, the lower court record reveals that the sexual abuse occurred over a period of 15 months. The first incident occurred sometime in May 2002, when the victim was nine years old. The last incident took place sometime at the end of July 2003, approximately three weeks before the victim revealed the allegations on August 20, 2003. The jury necessarily found that these instances of abuse occurred, because it found defendant guilty on all three counts. Thus, the fact of the abuse over this period of time has been objectively verified by the trier of fact. Thus, it is objective and verifiable that defendant served as child care provider for many years and molested the victim over a period of 15 months.
It is also objective and verifiable that defendant threatened to evict the victim and her family. This threat is not based solely on the testimony of the victim, because it is not disputed that defendant threatened to evict the victim and her family. Finally, it is objective and verifiable that the victim was forced to undergo a physical examination as a result of the abuse. There can be no reasonable dispute that the victim was subjected to a physical examination on August 22, 2003.
The trial court did not abuse its discretion in determining that these factors constituted substantial and compelling reasons for an upward departure. Babcock, supra at 264-265. In determining whether the departure was proper, this Court must defer to the trial court’s direct knowledge of the facts and familiarity with the offender. Id.*329 at 270. Defendant chose a victim who was nine years old and preyed on her vulnerability and sense of security as a member of defendant’s household. Contrary to defendant’s argument on appeal, a review of the sentencing transcript shows that the trial court did not rely on Carol’s accusations regarding the prosecutor in determining whether to depart from the guidelines. Defendant’s argument in this regard is mere speculation. As the trial court indicated, it is apparent that the sentencing guidelines were not capable of adequately accounting for the true seriousness of these offenses.
Finally, defendant argues that the upward departure from the recommendation of the guidelines was not proportionate. We disagree. The trial court’s upward departure was proportionate to defendant and the seriousness of the offense. The trial court addressed the offender, and the sentencing transcript demonstrates that the sentence was individualized. Contrary to defendant’s argument on appeal, lack of a prior record is not sufficient to overcome the presumption of proportionality. See People v Piotrowski, 211 Mich App 527, 533; 536 NW2d 293 (1995). Moreover, the circumstances surrounding the instant offenses establish the serious and reprehensible nature of defendant’s crimes. Appellate courts should consider whether the circumstances surrounding a defendant’s conviction place that defendant in the least or most threatening class with respect to that particular crime. Milbourn, supra at 654. The record reveals that defendant engaged in the continued sexual assault of a minor child on numerous occasions over a 15 month period. Most of these instances occurred while the victim’s siblings and mother were in the home. After a review of the entire record, we conclude that the sentences imposed by the trial court are proportionate to the seriousness of the crimes, and thus, do not violate the principle of proportionality. Babcock, supra at 264, 273. [People v Smith, unpublished opinion per curiam of the Court of Appeals, issued July 19, 2007 (Docket No. 267099), pp 4-6.]
Dissenting Opinion
(dissenting). I respectfully dissent. Circuit Judge Timothy M. Kenny more than adequately
Although the majority’s approach may provide helpful guidance to trial judges in some cases, I respectfully contend that it is not in our power to impose new,
Significantly, I have no qualms with many of the majority’s general statements. I agree that the trial court “bears the burden of articulating the rationale for . .. departure,” that the court “must articulate one or more substantial and compelling reasons that justify the departure it made,” and that its articulation “must be sufficient to allow adequate appellate review.” Ante at 318. I also agree that, to be proportionate, a minimum sentence that falls outside the guidelines range “must be more appropriate to the offense and the offender than a sentence within the guidelines would have been.” Ante at 318. Further, it may be “appropriate to justify the proportionality of a departure sentence by . .. anchoring it in the sentencing guidelines.” Ante at 318 (emphasis added).
The majority acknowledges that, as a reviewing court, we are bound to give significant deference to a trial court’s sentencing decisions. Ante at 300. Most significantly, we review for an abuse of discretion the trial court’s determination that particular facts are substantial and compelling reasons for the departure imposed. Babcock, 469 Mich at 264-265. Babcock succinctly circumscribed the abuse of discretion standard of review in this context:
At its core, an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more*333 than one reasonable and principled outcome. When the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court’s judgment. An abuse of discretion occurs, however, when the trial court chooses an outcome falling outside this principled range of outcomes. [Id. at 269 (emphasis added; citations omitted).]
In Babcock, we thoroughly analyzed the distinct duties of the trial court and reviewing court. In rejecting de novo review and adopting the abuse of discretion standard, we observed: “Because of the trial court’s familiarity with the facts and its experience in sentencing, the trial court is better situated than the appellate court to determine whether a departure is warranted in a particular case.” Id. at 268. We further stated:
The structure and content of the sentencing guidelines, as well as the organization of the appellate system itself, plainly reveal the Legislature’s recognition that the trial court is optimally situated to understand a criminal case and to craft an appropriate sentence for one convicted in such a case.
It is clear that the Legislature has imposed on the trial court the responsibility of making difficult decisions concerning criminal sentencing, largely on the basis of what has taken place in its direct observation. [Id. at 267-268.]
The trial court’s preeminence in the sentencing arena is reflected in the plain language of the statutory sentencing scheme, which provides that the court “may” depart from the appropriate range, MCL 769.34(3), and may even depart on the basis of an offense characteristic taken into account by the guidelines if the court concludes that the guidelines give it inadequate or dispro
If, upon a review of the record, the court of appeals finds the trial court did not have a substantial and compelling reason for departing from the appropriate sentence range, the court shall remand the matter to the sentencing judge or another trial court judge for resentencing under this chapter. [MCL 769.34(11) (emphasis added).]
Accordingly, an appellate court’s task is to review the record to determine whether the facts support the departure. Remand for resentencing is warranted only if the record does not support the departure.
The majority’s current decision is inconsistent with MCL 769.34, Babcock, and Fields. The text of MCL 769.34(3) bears repeating:
*335 A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. [MCL 769.34(3).]
Thus, the sentencing court is obligated to have “a substantial and compelling reason for that departure” and to “stateD on the record the reasons for departure.” As I explained in my partial dissent to the Babcock decision, these are the sole elements that the statute requires to justify a departure sentence. Babcock, 469 Mich at 275 (CORRIGAN, J., dissenting in part). The Babcock majority went further than I would have, imposing a burden of articulation that is absent from the statute. See id., part III(C), at 258-261. Significantly, however, even the majority agreed that “[although the trial court must articulate a substantial and compelling reason to justify its departure, the trial court is not required to use any formulaic or ‘magic’ words in doing so.” Id. at 259 n 13 (emphasis added). Indeed, the majority explicitly counseled that the trial court need not “explain why it chose a twelve-month departure as opposed to an eleven-month departure (or indeed as opposed to any one of countless other potential departures).”
Requiring precise comparisons of sentences for different hypothetical crimes and offenders also establishes a task for trial courts that is both potentially impossible and unnecessary to limit their discretion or facilitate review. The Legislature affirmatively chose to limit trial courts’ discretion by requiring them to articulate “substantial and compelling reasons.” The phrase “substantial and compelling” had become a legal term of art which originated from this Court’s definition in Fields. Babcock, 469 Mich at 257. Fields established — on the basis of definitions of the words “substantial” and “compelling” — that such reasons must “ ‘keenly’ or ‘irresistibly’ grab our attention” and be “ ‘of considerable worth’ in deciding the length of a sentence.” Fields, 448 Mich at 67. Such reasons also must be “objective and verifiable.” Id. at 68. Requiring reasons for departure to be objective and verifiable “maintain[s] the limited but moderating effect intended by the Legislature” in allowing for departures.
Although the majority calls for uniformity among departure sentences, ante at 311-312, 314, the majority cites no controlling statutory provision prescribing the methods it requires to achieve such uniformity. The majority cites only MCL 769.33(1)(e)(iv), which has been repealed. 2002 PA 31. Moreover, this repealed statutory provision merely provided direction to the Sentencing Commission regarding ways to modify the sentencing guidelines. It did not delineate a judge’s duties in imposing a sentence outside of the guidelines. Further, although MCL 769.33(1)(e)(iv) provided that the Sentencing Commission should develop modifications to the sentencing guidelines that “[r] educe sentencing disparities,” it did not require the standard of uniformity envisioned by the majority for sentences outside the guidelines range. Because of their unusual nature, departure sentences are not governed by the
This case exemplifies the majority’s mistake in requiring trial courts to offer burdensome articulations of their sentencing decisions mandated neither by MCL 769.34(3) nor precedent from this Court. The facts of this case clearly reveal that the 30-year minimum sentence imposed is within the range of principled outcomes. These facts also reinforce the Babcock Court’s conclusion that “[t]he deference that is due [to the trial court under the abuse of discretion standard] is an acknowledgement of the trial court’s extensive knowledge of the facts and that court’s direct familiarity with the circumstances of the offender.” Babcock, 469 Mich at 270. The trial court’s sentence is firmly rooted in the heinous nature of this case, in which the
The single mother of the victim first met defendant and his wife when the little girl was just over one year old. The mother sought day care for her daughter and responded to an ad placed in the paper by defendant’s wife. Several of his wife’s ads were introduced at trial; she advertised her babysitting services
The Smiths testified that the child was initially afraid of everyone or “afraid of men.” But all the witnesses agreed that, over time, defendant and the child developed a father-daughter relationship. The child testified that she loved the Smiths, who sent her gifts and cards even when she was not in their care.
Defendant molested the child over a 15-month period when she was nine and ten years old. The abuse began
The boy’s mother then reported the abuse to defendant’s wife and the victim’s mother. The victim told her mother that the allegations were true. As the victim’s family gathered their things to immediately leave the Smiths’ house, defendant’s angry wife accused the victim’s mother of lying and spat in her face. Defendant, whose wife had repeated the allegations to him, sat quietly in a chair throughout the ordeal. At trial, he testified that the child’s allegations were untrue.
After leaving the Smiths’ home, the child’s mother called the police, who took the child’s statement and advised her mother to take her to the hospital where she was examined for signs of sexual abuse. The child described the complete genital and anal exam as uncomfortable and embarrassing. The pediatric emergency room doctor who examined her testified that the child, who was then ten years old, reverted to thumb-sucking during the exam process.
The jury found defendant guilty of each of the three counts of first-degree criminal sexual conduct. The trial judge imposed a departure sentence of 30 to 50 years’ imprisonment for each count. Judge Kenny’s full reasons for departure are recounted in the majority opinion, ante at 297-298. Judge Kenny stressed that the case “manifests the absolute worst type of exploitation.” Over a period of 15 months defendant forced a child with no other adult males in her life, who was “fearful of the fact that she may lose the roof over her head for herself, her mother, and her two siblings,” to “silently endure” repeated sexual penetrations. Judge Kenny also noted that the ordeal forced the young victim to undergo a “frightening gynecological type of examination certainly adding to the trauma in this particular case.” Finally, defendant “blame[d] the child” and “categorize[d] her as a liar.”
As the majority acknowledges, Judge Kenny thus identified objective and verifiable facts underlying his sentencing decision, each of which is supported by the record. Ante at 301-302. Contrary to some of the majority’s conclusions, however, I conclude that the judge
First, I agree with the majority that Judge Kenny was not barred from relying on defendant’s exploitation of his position as a caregiver to the child by MCL 769.34(3)(a), which prohibits a judge from departing on the basis of a defendant’s lawful occupation. Ante at 298 n 3. Judge Kenny appropriately cited defendant’s “cho[ice] to exploit [his] relationship” with the victim — or to abuse his status as a “child care provider” — as a reason for departure. Defendant preyed on a child to whom he became like a father — and who had no other men in her life to protect her — by taking advantage of his wife’s solicitation of the child to their care by advertising a safe environment for children. By its terms, MCL 769.34(3)(a) could not apply to this case because defendant was not lawfully employed as a child care provider; indeed, he and his wife testified that he was rarely involved with her unlicensed babysitting services. But even if defendant had worked as a child care provider, his exploitation of that role — as opposed to the mere fact of his lawful occupation — would be a sound reason for departure.
Second, I also agree with the majority’s conclusion that the gynecological examination underwent by the 10-year-
I strongly disagree, however, with the majority’s conclusion that the trial court’s reasons did not justify the 30-year minimum sentence (in the language of MCL 769.34[3], “that departure”) imposed. First, contrary to the majority’s claim, ante at 302-303 n 21, the judge clearly stated that he departed in part on the basis of exploitation of the victim because the level of exploitation here was not contemplated by the guidelines. Offense variable (OV) 10 addresses predatory conduct, exploitation of a victim’s age or size, and an offender’s abuse of his position of authority or domestic relationship to complete a crime. MCL 777.40. MCL 769.34(3)(b) mandates:
The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.
Here, the judge listed numerous forms of exploitation such as defendant’s abuse of a father-daughter type relationship, the age of the child, the child’s particular vul
The nature of the requirements of the plain text of the statutes, which the majority’s holding ignores, reflects the fact that the Legislature continues to grant sentencing discretion to trial courts, even in the wake of legislatively enacted sentencing guidelines, because each case is unique and only the trial judge is directly familiar with the facts and circumstances of the offense and offender. See Babcock, 469 Mich at 270. They also reflect the difficulty of quantifying individualized sentences.
The United States Supreme Court recently provided guidance concerning how appellate courts may meaningfully review sentencing decisions while preserving trial courts’ sentencing discretion in Gall v United States, 552 US _; 128 S Ct 586; 169 L Ed 2d 445 (2007). Although the federal sentencing guidelines differ from the Michigan scheme and are no longer mandatoiy, federal judges must
“The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Brief for Federal Public and Community Defenders et al. as Amici Curiae 16. “The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Rita [v United States, _ US _; 127 S Ct 2456, 2469; 168 L Ed 2d 203 (2007)]. Moreover, “[district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). [Id. at _; 128 S Ct at 597-598.]
While acknowledging that “appellate courts may... take the degree of variance into account and consider the extent of a deviation from the Guidelines,” the Gall Court “reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Gall, 552 US at _; 128 S Ct at 595. Most significant to our purposes, the Court observed that mathematical approaches “assume[] the existence of some ascertainable method of assigning percentages to various justifications.” Id. at _; 128 S Ct at 596. “The [percentage] formula is a classic example of attempting to measure an inventory of apples by counting oranges.” Id.
I fear that the majority today similarly attempts to measure apples by counting oranges. Although rooting a departure sentence in the factors considered by the
Indeed, complying with the majority’s regime will be essentially impossible in the many cases where trial courts depart on the basis of unique characteristics that are not contemplated by the guidelines at all and not present for comparison in other cases. I respectfully suggest that here Judge Kenny could do no more than point to the record of this heinous case of abuse to explain his reasons for departing under these unique circumstances. No amount of charting the offense by reference to the guidelines would reveal a correct departure sentence or departure range because we cannot quantify the circumstances of this crime or the exploitation involved. Individualized sentencing often simply
To the extent the majority asserts that its regime is necessary to facilitate proportionality, it appears to ignore that the Babcock decision thoroughly considered the goal of proportionality when it established abuse of discretion as the appropriate standard for review of sentencing departures. Ante at 304-305; Babcock, 469 Mich at 261-264. In Gall, the United States Supreme Court approved of its decision in Koon to adopt an abuse
Contrary to the majority’s approach, Michigan law— like federal law — requires simply that a trial court “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 US at _; 128 S Ct at 597; see also Babcock at 259 n 13 (“[H]owever it is articulated, the quality of the trial court’s statement must be sufficient to allow for effective appellate review.”). Because of the intangible nature of sentencing factors, adequate explanation is all we can ask of trial courts. Here Judge Kenny complied with the requirements of MCL 769.34(3) by stating his intention to depart and his reasons for departure. He complied with MCL 759.34(3)(b) by explaining that the guidelines did not adequately cover the circumstances of the offenses. He aided appellate review by explaining his reasons for departure in detail and explicitly recognizing his duties under Babcock. By requiring still more from trial judges, the majority now imposes an unreasonably burdensome task on parties and judges, who will be required to debate the specific degree to which the guidelines are over- or under-inclusive of particular factors and quantify the effect of factors not addressed by the guidelines. Yet, because these issues are not easily quantifiable, appellate courts will remain able only to answer the central questions: does the record reflect that the trial court had a substantial and compelling reason to depart and, if so, was the sentence outside the range of principled outcomes? MCL
I would retain the current, workable standard. As in the federal context, an appellate court
may consider the extent of the deviation [from the guidelines], but must give due deference to the [trial] court’s decision that the [sentencing] factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.... [Gall, 552 US at _; 128 S Ct at 597 (emphasis added).]
This prohibition on an appellate court substituting its judgment for that of the trial court constitutes the very heart of the abuse of discretion standard of review. Because the sentences imposed fall within the range of reasonable opinions regarding what sentences are appropriate in this case, they do not constitute an abuse of discretion. Accordingly, I would affirm defendant’s sentences.
Under MCL 750.520b(2), defendant was automatically eligible to serve a life sentence for each of his three convictions for first-degree criminal sexual conduct.
It also may be helpful to compare sentences in similar cases, as Justice Makkman suggests. I do not oppose trial courts’ attempts to do so. My central point is that our statutory scheme simply does not require this exercise. Moreover, because each case is unique, the comparison Justice Makkman advocates may not always be possible or productive. Significantly, Justice Markman concedes that his approach may have “some anecdotal or arbitrary quality. . . . ” Ante at 325. I agree. But I also question whether case comparisons will become meaningfully less arbitrary over time, as Justice Makkman supposes, if judges “consider reasonably similar cases decided by themselves or by geographically
The majority explicitly states that a trial court “is not required to consider where a defendant’s sentence falls on the sentencing range grid,” and that appellate review is merely “aided” when a court compares its reasons for departure to facts describing a real or hypothetical crime meriting the same sentence. Ante at 309, 310.
I agree with the majority that “appellate courts may not review the record to search for reasons to uphold a sentence that the trial court failed to justify.” Ante at 314 n 50, citing Babcock, 469 Mich at 258-259. Rather, an appellate court reviews the record to determine whether the record supports the trial court’s reasons for departure. My central point is that an appellate court’s role is to review the record for an abuse of discretion, not to legally analyze the trial court’s attempts to derive the departure from the guidelines or analogize it to other cases. Indeed, although Justice Markman accuses me of promoting merely “rudimentary appellate review,” ante at 322, my fear is that the majority’s formula will promote incomplete scrutiny of departure sentences. Instead of carefully reviewing the entire record to determine whether a trial court’s sentence falls outside the range of principled outcomes, under the majority’s view an appellate court can restrict itself to the sentencing transcript to check for an adequate quantitative argument or comparison to other cases. By permitting appellate courts to restrict their review to the sentencing transcript and a comparison with other cases, rather than requiring a complete review of the facts as recounted in the entire record, the majority permits what resembles de novo review of a legal question, which we explicitly rejected for departure sentences in Babcock in favor of the abuse of discretion standard.
I agree with Justice Makkman that “there is a considerable difference between a 16-year and a 30-year minimum sentence.” Ante at 321. But, as Babcock explicitly counsels, a trial court is not required — and indeed may not be able — to precisely quantify the reasons for the precise departure sentence imposed. Still, in choosing not to impose such a requirement, the statutory scheme does not “essentially exempt... that part of a potential criminal sentence lying outside the guidelines range ... from even rudimentary appellate review.” Ante at 322. Record review of the reasons for departures is anything but rudimentary, as our work in this case itself most poignantly and painfully illustrates. Appel
I agree with the majority that appellate courts should not impose a less stringent standard of review (i.e., abuse of discretion) on departure sentences, ante at 315 n 51, but I disagree that the Legislature intended to bind trial courts departing from the sentencing guidelines range to the standard of uniformity required for sentences within the guidelines.
Justice Markman argues that the facts in cases involving departure sentences are just as quantifiable as the facts in cases in which the sentence is within the guidelines. If the facts of a case are quantifiable, however, then they can he scored adequately by the offense and prior record variables, thus resulting in a sentence within the guidelines range. It is when objective and verifiable factors exist that cannot adequately be scored by the offense and prior record variables (i.e., they are not adequately quantifiable) that a departure sentence results. Thus departure sentences by their nature involve less quantifiable facts than sentences within the guidelines.
Moreover, the majority does not acknowledge the extent to which the standards for departure sentences parallel those for guidelines sentences. The majority fears that my view would lead to “[a]ny arguably reasonable sentence [being] upheld.” Ante at 314.1 conclude that this is precisely what the Legislature intended for both departure sentences and nondeparture sentences. Departure sentences are constrained by the statutory maximum and the rule requiring that a minimum sentence not exceed 2h of the maximum, MCL 769.34(2)(b). Within this range, a departure sentence is reasonable if it is supported by a substantial and compelling reason. MCL
Defendant’s wife emphasized at trial that she did not operate a licensed day care business. She merely wanted to “baby-sit a couple of children.”
The child’s mother frequently moved the family between Michigan and Georgia.
Several witnesses confirmed the child’s testimony that defendant’s wife spent hours in her basement “office” using her computer during the evening. Defendant claimed, to the contrary, that he was with his wife “24 hours a day, seven days a week” because his wife was agoraphobic. Other points of the Smiths’ testimony clearly belied this claim. For instance, they did not sleep in the same room; rather, they testified that she went to bed early and slept in their bedroom while he watched television and slept in the living room where the abuse took place. Defendant also denied that his wife had a computer in her basement office. His wife initially supported his testimony; she claimed that she used a laptop in the living room and not in the basement. She later conceded, however, that she used the computer at night in the basement.
These are but some examples of the apparent inconsistencies within and between defendant’s testimony and that of his wife. The regular inconsistencies, as well as the couple’s behavior at trial, shed light on the trial judge’s observations at sentencing. For instance, the judge observed that in addition to sexually abusing the child who had come to utterly trust defendant, defendant then added to the child’s ordeal by casting her as a liar at trial. In all, the child was subjected to two trials, and the judge opined that defendant and his wife attempted to spur a second mistrial by accusing the trial prosecutor of cocaine use during the lunch breaks. During the second trial, defendant’s wife engaged in behavior that, after a hearing outside the jury’s presence, the judge characterized as “stalking” the prosecutor. Defendant’s wife made repeated calls to state police at the Downriver Area Narcotics Organization to lodge complaints against the prosecutor and encourage the officers to investigate. The officers stated that defendant’s wife claimed to have followed the prosecutor in her car at lunch breaks dining the trial (it is unclear from the transcript whether defendant, who was free on bond, was with her at these times). His wife reported the prosecutor’s license plate number and claimed to have seen her using cocaine during the lunch breaks before returning to the courtroom. When called on by the judge to respond to the officers’ statements, defendant’s wife denied that she ever told them
It is worth noting that, according to the record, defendant stands six feet and two inches tall and weighs between 290 and 311 pounds.
His mother described the victim as “crying and crying” and “shivering.”
Very little evidence of this purported call was presented at trial and defense counsel only mentioned it in passing during his closing argument. At the time of the call, defendant’s wife did not file a report or contact the police officers investigating the case. Rather, she stated that she called a “dispatch” officer who she claimed told her to contact her phone company and have a tracer placed on her phone. A friend of the Smiths testified that she was at their home on the day of the call and that she recognized the voice of the victim’s mother demanding money. She stated that defendant’s wife had recognized the out-of-state number on her caller I.D. box and asked the friend to listen on the other line. No phone company reports or other direct evidence of the call were submitted into evidence. Indeed, the prosecutor argued that defendant’s wife and her friend fabricated the call, particularly in light of the friend’s convenient presence when the purported call was made, their failure to report it to the investigating officers, and their incredible claims that defendant’s wife was told to put a “tracer” on the phone although the caller I.D. box purportedly showed the caller’s phone number.
Further, there are obvious similarities between the accusations made by defendant’s wife against the victim’s mother and those she made against the prosecutor. Defendant’s trials were rife with his wife’s constant pattern of implausible accusations against participants in the case. Judge Kenny was in the best position to gauge any encouragement of her behavior by defendant. At a minimum, the record does not reveal any efforts by defendant to curb the behavior. I note these issues because her behavior formed part of the context of the trial and sentencing decisions, by their nature, “ ‘grow [] out of, and [are] bounded by, case-specific detailed factual circumstances.’ ” Babcock, 469 Mich at 268, quoting Buford v United States, 532 US 59, 65; 121 S Ct 1276; 149 L Ed 2d 197 (2001). To the extent that Judge
Consistent with my dissent in Babcock, I would affirm defendant’s sentences because Judge Kenny stated one or more substantial and compelling reasons for departure and the sentence imposed was not outside the range of principled outcomes. MCL 769.34(3) and (11) require no more in order for a departure sentence to survive appellate review. Babcock, 469 Mich at 274-277 (CORRIGAN, J., dissenting in part). But the sentence is also sound, and remand is not required, under the majority-opinion in Babcock, as I will explain.
MCL 769.34(3)(a) prohibits reliance on the mere fact of a defendant’s occupation as a reason for departure. It reads in pertinent part: “The court shall not use an individual’s... legal occupation... to depart from the appropriate sentence range.”
Because of the timing of this case, we also happen to have a unique window onto whether our Legislature would conclude that a 30-year sentence is within the range of principled outcomes under these circumstances. Effective July 1, 2008, an adult who rapes a child, i.e., commits first-degree criminal sexual conduct against a child less than 13 years of age, must be imprisoned for a minimum term of at least 25 years. Such an offender is also still eligible for a life sentence. MCL 750.520b(2)(b), as amended by 2007 PA 163. Thus, if defendant had committed these offenses at a later date, he would be required to serve a minimum sentence of 25 years or more. Moreover, the 25-year sentence would be mandatory even if there were no substantial and compelling reasons to depart upward. Judge Kenny’s reasons for departure would certainly justify a 30-year minimum sentence (a mere increase of five years from the mandatory minimum) under the new scheme.
Further, on a national scale, a debate continues regarding whether capital punishment is an appropriate sentence for child rape. The United States Supreme Court recently struck down a statute providing for such punishment when the crime is not also intended to kill the child. Kennedy v Louisiana, _ US _; 128 S Ct 2641; 171 L Ed 2d 525 (2008). But, as Justice Alito observed in dissent, six states currently permit capital punishment for child rape convictions. Id., _ US at _; 128 S Ct at 2665 (Alito, J., dissenting). Justice Alito also reasonably questions the Kennedy plurality’s conclusion that there is genuinely a “national consensus” that capital punishment is inappropriate in such cases. Id. Moreover, although Justice Kennedy’s lead opinion also cited the absence of capital punishment as a sanction for child rape in the context of federal criminal law, id., _ US at _; 128 S Ct at 2652, the Department of Justice belatedly observed that the Court was mistaken in this regard; the rape of a child is a capital offense under the law of the United States Militaiy. See Linda Greenhouse, Justice Department Admits Error in Not Briefing Court, N.Y. Times, July 3, 2008 <http://www.nytimes.com/2008/07/03/us/03scotus.html> (accessed July 29, 2008). Justice Alito observed:
[T]here are many indications of growing alarm about the sexual abuse of children. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. § 14071 (2000 ed. and Supp. V), which requires States receiving certain federal funds to establish registration systems for convicted sex offenders and to notify the public about persons convicted of the sexual abuse of minors. All*350 50 States have now enacted such statutes. In addition, at least 21 States and the District of Columbia now have statutes permitting the involuntary commitment of sexual predators, and at least 12 States have enacted residency restrictions for sex offenders. [Id., _ US at _; 128 S Ct at 2669-2671 (Alito, J., dissenting).]
He offered the following grim statistics:
From 1976 to 1986, the number of reported cases of child sexual abuse grew from 6,000 to 132,000, an increase of 2,100%. A. Lurigio, M. Jones, & B. Smith, Child Sexual Abuse: Its Causes, Consequences, and Implications for Probation Practice, 59 Sep Fed. Probation 69 (1995). By 1991, the number of cases totaled 432,000, an increase of another 227%. Ibid. In 1995, local child protection services agencies identified 126,000 children who were victims of either substantiated or indicated sexual abuse. Nearly 30% of those child victims were between the age of four and seven. Rape, Abuse & Incest National Network Statistics, online at http://www.rainn.org/get-information/statistics/sexual-assaultvictims. There were an estimated 90,000 substantiated cases of child sexual abuse in 2003. Crimes Against Children Research Center, Reports from the States to the National Child Abuse and Neglect Data System, available at www.unh.edu/ccrc/sexualabuse/Child%Sexual%Abuse.pdf. [Id., _ US at _; 128 S Ct at 2669 n 2.]
This Court consistently and rightly criticizes such deviations from the Legislature’s intent as expressed in its unambiguous statutory text. For a prime example, this Court rejected courts’ attempts to superimpose atextual, judicially created rules on unambiguous text in Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 (2005), and Rory v Continental Ins Co, 473 Mich 457; 703 NW2d 23 (2005). Devillers and Rory addressed the line of cases beginning with Tom Thomas Org, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), in which courts allowed for judicial tolling of unambiguous time periods established by statute and contract. Devillers overruled Lewis v DAIIE, 426 Mich 93; 393 NW2d 167 (1986), because Lewis impermissibly grafted a judicial tolling doctrine onto a provision of the no-fault act, MCL 500.3145(1), that plainly afforded claimants one year from the time a loss was incurred to recover benefits. Devillers at 581. In doing so, Devillers “reaffirm[ed] the Legislature’s prerogative to set policy and our long-established commitment to the application of statutes according to their plain and unambiguous terms to preserve that legislative prerogative.” Id. Indeed, we appropriately characterized the Lewis Court’s superimposition of judicial tolling on the unambiguous statute as “crafting its own amendment” of the statute. Id. at 582. In Rory, we similarly overruled the attempts of Tom Thomas and its progeny to “abrogate unambiguous contractual terms” using “judicial assessments] of ‘reasonableness.’ ” Rory at 470.
The statutory requirements for imposing and reviewing departure sentences that we address here are equally clear. The Tom Thomas line of cases permitted judicial tolling to thwart the clear time periods circumscribing parties’ duties and rights as established by contract or statute. Here, the Legislature clearly circumscribes a court’s sentencing duties by requiring it to articulate substantial and compelling reasons to depart. And it further directs that appellate review of the departure is done by analyzing the record, not charting a defendant’s placement on a continuum. Yet the majority expands these clearly defined duties by imposing judicially created guidelines for departure. By doing so, the majority fails to recognize that this Court’s duty is to apply the statutory language “without addition, subtraction, or modification.” Lesner v Liquid Disposal, Inc, 466 Mich 95, 101; 643 NW2d 553 (2002). “We may not read anything into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Id.
In his partial dissent from the Babcock decision, Justice Cavanagh similarly stressed the futility of imposing artificial limitations on a trial judge’s discretionary sentencing decisions, albeit by rejecting the majority’s conclusion that reasons for departure must be objective and verifiable and suggesting an even more deferential approach. Babcock, 469 Mich at 279 (Cavanagh, J., dissenting in part). Justice Cavanagh observed:
[W]hat rises to the level of substantial and compelling is clearly subjective. “It relates to this defendant and to this sentencing judge, who is examining this individual and this offense.” [Fields, 448 Mich at 104 (Cavanagh, J., dissenting)] (emphasis in original). Thus, the weighing of all the factors and circumstances before the sentencing court includes inherently subjective inquiries.
Further,... [t]here are certain factors, such as a defendant’s remorse or a defendant’s family support, that may be considered objective by one sentencing judge and subjective by another. The dissent in Fields stated, “[t]he better test is whether the sentencing judge is satisfied that the nature and extent of the defendant’s remorse [or family support] are substantial and compelling reasons to support a sentencing departure.” Id. at 105. I remain committed to the position that the “objective” criteria utilized by this Court is [sic] unworkable. [Id. at 279-280.]
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