361424
Mich. Ct. App.Dec 22, 2022Background
- Defendant (66) was convicted by jury of third-degree criminal sexual conduct for performing oral sex on a 14‑year‑old at a church where he served; some related first‑degree counts were dismissed by the jury.
- At trial, the victim testified to multiple sexual acts; defendant made an ambiguous police statement and denied wrongdoing at trial; two other‑acts witnesses testified about inappropriate touching.
- At initial sentencing the trial court imposed a departure sentence above the guidelines; defendant appealed arguing improper reliance on ethnicity/religion, improper consideration of psychological harm to the victim’s family, and use of acquitted conduct.
- This Court previously affirmed the conviction, rejected the ethnicity/religion and psychological‑harm challenges, but held the trial court improperly relied on acquitted conduct in violation of People v Beck and remanded for resentencing.
- At resentencing the trial court imposed the same departure sentence but stated it would not rely on non‑adjudicated (acquitted) conduct; defendant again appealed.
- On this appeal the Court applied the law‑of‑the‑case doctrine and the limited scope of the remand, declined to revisit the previously rejected issues, and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court improperly used defendant’s or victim’s ethnicity/religion to justify a guidelines departure | People: court considered cultural/community impact, not defendant’s ethnicity per se, so comment was permissible | Ishak: court impermissibly used ethnicity/religion to increase sentence | Rejected under law‑of‑the‑case; previously considered and upheld; not within scope of remand |
| Whether sentencing court improperly considered psychological harm to victim’s family in departing | People: psychological harm was supported by evidence and not captured by guidelines, so departure valid | Ishak: family psychological harm was an improper basis for departure | Rejected under law‑of‑the‑case; previously considered and upheld; not within scope of remand |
| Whether resentencing improperly relied on acquitted conduct | People: trial court stated it would not consider non‑adjudicated conduct at resentencing | Ishak: prior reliance on acquitted conduct required resentencing and scrutiny | Remand resolved Beck issue; resentencing affirmed because court avoided using acquitted conduct and reasons for departure otherwise reasonable |
Key Cases Cited
- People v Beck, 504 Mich 605 (Mich. 2019) (acquitted or nonadjudicated conduct cannot justify a sentence departure)
- People v Lockridge, 498 Mich 358 (Mich. 2015) (sentences departing from guidelines reviewed for reasonableness)
- People v Lampe, 327 Mich App 104 (Mich. App. 2019) (abuse‑of‑discretion standard for appellate review of sentences)
- People v Skinner, 502 Mich 89 (Mich. 2018) (principled‑range test and recognition of multiple reasonable outcomes)
- People v Zitka, 335 Mich App 324 (Mich. App. 2020) (law‑of‑the‑case doctrine binds later proceedings absent injustice)
- People v Owens, 338 Mich App 101 (Mich. App. 2021) (appellate decisions binding on equal or lower courts in same case)
- People v Kincade, 206 Mich App 477 (Mich. App. 1994) (appeals after limited remand are confined to remand scope)
- People v Gjidoda, 140 Mich App 294 (Mich. App. 1985) (trial court may not base sentence on defendant’s ethnic background)