This сase is before us after previously being remanded by this Court in
People v Babcock,
I. PROCEDURAL HISTORY
Defendant was charged with one count of first-degree criminal sexual cоnduct, MCL 750.520b, involving a twelve-year-old female relative. Defendant subsequently pleaded guilty to two counts of second-degree criminal sexual conduct, MCL 750.520c. Defendant was sentenced to three years’ probation, with the first year to be served in jail; however, аll but sixty days of defendant’s jail sentence were suspended. The applicable legislative sentencing guidelines provided for a minimum sentence range of thirty-six to seventy-one months. This Court granted the prosecutor’s application for leave to apрeal, *465 which challenged the sentence on the ground that the downward departure from the sentencing guidelines was error because there was a lack of substantial and compelling evidence justifying the departure.
In Babcock I, supra at 80, this Court held that “[b]ecause the trial сourt failed to articulate a substantial and compelling reason for a downward departure, we conclude that it abused its discretion in imposing a sentence outside the guidelines range.” On remand, the trial court sentenced defendant to three years’ рrobation with the first year to be served in jail. Once again, however, all but sixty days of defendant’s jail sentence were suspended with defendant being given sixty-one days’ credit for time served.
H. APPLICABLE LAW
Under the legislative sentencing guidelines, courts in most instances are required to impose a minimum sentence within the appropriate sentence range pursuant to MCL 769.34(2). 1 Babcock I, supra at 72. MCL 769.34(3) provides the following exception:
A court may depart from the appropriate sentence range established under the sentencing guidelines ... if the court has a substantial and compelling reason for thаt departure and states on the record the reasons for departure. All of the following apply to a departure:
*466 (a) The court shall not use an individual’s gender, race, ethnicity, alienage, national origin, legal occupation, lack of emрloyment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
(b) 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 thе court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.
The
Babcock I
panel noted that MCL 769.34(H)
2
requires this Court to vacate and remand for resentencing where there are not substantial and compelling reasons for a guidelines departure.
Babcock I, supra
at 73-74. In defining what constituted “substantial and compelling reasons,” this Court applied the language from
People v Fields,
In Babcock I, id., this Court, again relying on Fields, supra at 69-70, stated that the factors relied on by a court in determining whether there are substantial and compelling reasons for departure must be objective and verifiable.
“ ‘[T]he existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefоre be reviewed by an appellate court for clear error.’ ” Babcock I, supra at 75-76, quoting Fields, supra at 77. “ ‘The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law.’ ” Babcock I, supra at 76, quoting Fields, supra at 77-78. “ ‘A trial court’s determinatiоn 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.’ ” Babcock I, supra at 76, quoting Fields, supra at 78. 3
*468
We note that since this Court’s decision in
Babcock I,
our Supreme Court in
People v Hegwood,
The Court of Appeals indicated in Babcock that the principle of proportionality is not part of the legislative guidelines, and that there will be no appellate review of sentence length in cases in which there is a substantial and compelling reason to depart from the recommended minimum stated in the legislative guidelines.244 Mich App 77 -78. In this regаrd, however, we observe that the statute provides, “A court may depart from the appropriate sentence range established under the [guidelines] if the court has a substantial and compelling reason for that departure . . . .” (Emphasis supplied.) MCL 769.34(3). In light of such languаge, we do not believe that the Legislature intended, in every case in which a minimal upward or downward departure is justified by “substantial and compelling” circumstances, to allow unreviewable discretion to depart as far below or as far above the guideline range as the sentencing court chooses. Rather, the “substantial and compelling” circumstances articulated by the court must justify the particular departure in a case, i.e., “that departure.” [Emphasis, omission, and alteration in original.]
The language in Hegwood indicates that there can be vаrying degrees of substantial and compelling circumstances that must be considered in reviewing the extent of a departure. In other words, if there are substantial and compelling reasons to slightly depart from the guidelines, e.g., a six-month departure, those same reasons may not be sufficient to support a more significant departure, e.g., a three-year departure. Moreover, Hegwood indicates that the principle of *469 proportionality can be considered concerning the extent of a departure.
HI. HOLDING IN BABCOCK I
The Babcock I panel reviewed the reasons given by the trial court for departing downward, and it first rejected the court’s reliance on defendant’s lack of a criminal record because, although objective and verifiable, that factor was already considered in scoring the prior record variablеs. Babcock I, supra at 79. This Court also rejected the trial court’s statement that the crime involved a family situation that might not happen again, because, although objective and verifiable with regard to the existence of a family situation, the factor was considered in the оffense variables regarding family victimization for purposes of enhancing rather than reducing the sentence range. Id. The Babcock I panel also noted that the trial court stated that defendant “ ‘still didn’t fully appreciate what he’s done.’ ” Id. This Court concluded that the trial cоurt failed to articulate a substantial and compelling reason for a downward departure and therefore abused its discretion. Id. at 80. The trial court was instructed to impose on remand “any minimum sentence within the appropriate guidelines range or to dеpart from that range if there is a substantial and compelling reason to do so.” Id.
IV. THE TRIAL COURT’S REASONING FOR DEPARTURE ON REMAND
The trial court once again departed from the legislative guidelines, as indicated above; however, the court cited additional reasons for the departure on rеmand. The trial court believed that defendant and society would be better served if defendant were *470 treated outside prison. Further, defendant’s probation agent, who is in charge of all Jackson County sex offenders, believed that defendant had made good рrogress during the past eighteen months of probation, including progress in sex offender therapy, which progress might be halted should defendant be sent to jail or prison. The probation agent indicated that defendant had complied with his probation requirements, and the agent opined that defendant was amenable to treatment. The agent further recommended deviation from the guidelines and that defendant do no more jail time.
The trial court also relied on an affidavit prepared by defendant’s attorney, which indicated that this was an unusual case and that more harm than good would come from further incarceration of defendant. Additionally, the trial court relied on correspondence from defendant’s brother’s special education teacher, which indicated that defendant’s brother was seriously impaired with cerebral palsy and mental retardation and that defendant assisted in his brother’s care. 4 The teacher’s correspondence was considered by the court in conjunction with correspondence frоm an attorney who was handling probate guardianship matters for defendant’s brother. The probate attorney explained defendant’s role in the care of his brother and the hardship that would result to defendant’s mother and family should defendant be removed from thе home. Finally, the trial court considered corre *471 spondence from defendant’s doctor that defendant had a herniated disc.
V. ANALYSIS AND CONCLUSION
Some of the factors cited by the trial court are not objective and verifiable, and we will not consider them in our analysis. Specifically, the court’s belief that defendant and society would be better served if defendant is treated outside prison is neither objective nor verifiable. Further, the affidavit of defendant’s attorney is neither objective nor verifiable.
However, there are factors relied on by the trial court that were objective and verifiable. Those factors included defendant’s compliance with his probation requirements, including sex offender therapy, 5 defendant’s herniated disc, and the fact that defendant is involved in providing care to his impaired brother. The prosecutor does not challenge the existence of these facts. Additionally, these factors constitute nondiscriminatory reasons not considered by the guidelines. MCL 769.34(3)(a) and (b).
Although we believe that it is debatable whether the objective and verifiable factors relied on by the trial court constitute substantial and compelling reasons justifying a downward departure from the guidelines range, we cannot conclude that the trial court’s decision based on those factors was so palpably and grossly violative of fact and logic that it indicates not the exercise of will but perversity of will. Babcock I, supra at 76. Therefore, the trial court did not abuse its discretion in departing downward from the mini *472 mum guidelines range. Moreover, for the same reason, we do not believe that the trial court abused its discretion with regard to the extent of the downward departure.
Affirmed.
Notes
MCL 769.34(2) provides, in part, as follows:
Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVH committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.
MCL 769.34(11) provides that
[i]f, 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.
We question the
Babcock I
holding regarding the abuse of discretion standard of review in light of the language in MCL 769.34(11), which appears to suggest that our review is de novo. See n 2. However, we are compelled by MCR 7.215(I)(1) to follow the rule of law established in
Babcock I.
Additionally, we are bound by
Babcock I
under the law of the case doctrine because there has been no intervening change of law.
Ashker v Ford Motor Co,
The special education teacher, who was also involved in coordinating medical care for defendant’s brother, stated that defendant provides hands-on care for his brother, “including transfers, bathing, [tubejfeeding, and medical administration.’’ The teacher also noted that defendant’s and his brother’s mother is an insulin-dependent diabetic with many health problems that limit her ability to care for defendant’s brother.
We do note that the probation agent’s assertion that defendant is amenable to treatment is neither objective nor verifiable.