People of Michigan v. Timothy Joseph Kane
325651
| Mich. Ct. App. | Mar 17, 2016Background
- Defendant Timothy Joseph Kane was convicted by a jury of conspiracy to commit a criminal enterprise, conspiracy to use a computer to commit a 20‑year felony, two counts of uttering and publishing, and two counts of embezzlement from a charitable organization.
- Trial court imposed a downward departure sentence: 5 years’ probation with 12 months’ jail time served in installments, below the guidelines minimum range of 36–60 months’ imprisonment.
- The prosecutor appealed the downward departure, challenging the sentence as inconsistent with the sentencing guidelines minimum.
- The opinion frames the appeal against recent Sixth and U.S. Supreme Court developments: Alleyne (All mandatory‑minimum‑increasing facts are elements) and Michigan Supreme Court’s Lockridge (Michigan guidelines mandatory portion severed; guidelines advisory).
- This Court found that because Lockridge changed the standards for reviewing departure sentences, the case must be remanded for a Crosby hearing to determine whether the trial court would have imposed a materially different sentence but for the Alleyne/Lockridge error.
- The Court expressed concern that the trial court relied on impermissible factors (e.g., mercy, religious service, subjective motives, public opinion) in crafting the downward departure, and ordered a different judge to preside on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor may challenge the trial court's downward departure sentence | Prosecutor: the downward departure below the guidelines minimum was improper and should be corrected on appeal | Kane: (implicit) sentence was within trial court discretion and based on mitigating considerations | Court: Remand for Crosby hearing; prosecutor may elect to forgo resentencing by timely notice, otherwise court must determine if it would have imposed a materially different sentence and resentence if yes |
| Whether Lockridge requires resentencing or Crosby procedure when a departure sentence was imposed | Prosecutor: Lockridge changes sentencing review; remand is required to apply the reasonableness (Milbourn) standard | Kane: (implicit) trial court already exercised discretion; no plain error requiring reversal | Court: Lockridge requires Crosby remand because trial court was unaware it must apply the Milbourn proportionality reasonableness standard |
| Whether the trial court relied on permissible objective/ verifiable factors in downward departure | Prosecutor: trial court relied on impermissible/subjective factors (mercy, religious service, public opinion) rather than objective, verifiable reasons | Kane: (implicit) mitigating factors justified departure | Court: Trial court did not base departure on objective/verifiable factors; relied on impermissible considerations; this supports remand and reassignment |
| Whether judge reassignment is warranted on remand | Prosecutor: original judge’s reasoning raises concern about impartial application of Milbourn standard | Kane: (implicit) no need for new judge | Court: Due to record and the initial basis for departure, a different judge should preside on remand |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (mandatory‑minimum increasing facts are elements that must be found by a jury)
- People v. Lockridge, 870 N.W.2d 502 (Mich. 2015) (Michigan sentencing guidelines’ mandatory floor severed; guidelines advisory; courts must still score guidelines but apply reasonableness review to departures)
- People v. Milbourn, 461 N.W.2d 1 (Mich. 1990) (proportionality principle governs reasonableness of sentences)
- United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) (procedure for remand when Supreme Court decision affects sentencing)
- People v. Babcock, 666 N.W.2d 231 (Mich. 2003) (departure requires substantial and compelling reasons based on objective and verifiable facts)