PEOPLE V HOUSTON
Docket No. 96068
Supreme Court of Michigan
March 22, 1995
Rehearing denied post, 1231.
448 MICH 312
Argued November 3, 1994 (Calendar No. 3).
In an opinion by Justice BOYLE, joined by Justices RILEY, MALLETT, and WEAVER, the Supreme Court held:
The defendant‘s sentence does not violate the requirements of People v Milbourn, 435 Mich 630 (1990); the sentencing judge did not violate the defendant‘s attorney-client privilege.
1. The case at bar presents neither the maximum nor minimum sentence, and thus Milbourn directs courts to consult the second edition of the Michigan Sentencing Guidelines as an aid to determining the proportionality of the sentence. Under Milbourn, the key test of proportionality is not whether the sentence departs from or adheres to the recommended range, but whether it reflects the seriousness of the matter. Thus, it is possible that a sentence within the guidelines range could be disproportionately high or low. In the absence of factors legitimately considered at sentencing and not adequately considered by the applicable guidelines, a departure from the recommended range indicates a possibility that a sentence may be disproportionate. However, Milbourn did not state or establish that any factors accounted for in the guidelines had been adequately considered or appropriately weighed. The Milbourn Court repeatedly observed that sentencing judges are not required to adhere to the guidelines. Judges may impose sentences higher than the guidelines’ range when that range is too low. Unless there is some basis for deciding what range would
2. In this case, the trial judge did not err in finding that the recommended range was inadequate to reflect the seriousness of this offense; thus, the sentence imposed satisfies the proportionality requirement of Milbourn. In addition, assuming arguendo that the guidelines range is adequate to reflect the seriousness of the offense, the sentence did not constitute an abuse of discretion because the offense involved circumstances not accounted for in formulating the guidelines, and circumstances that were inadequately accounted for in the guidelines. It is clear that the guidelines do not reflect certain variables that a sentencing judge properly may consider. Further, with respect to the current guidelines, it is not known which variables were considered or what weight was accorded them. Thus, it cannot be said that this offense and this offender are in fact comparable to the situation within the applicable grid cell of the guidelines.
3. The defendant waived any claim to privilege. The defendant challenged, as violative of his attorney-client privilege, inquiries directed by the trial court to appellate defense counsel on remand about whether the defendant‘s trial counsel had consulted with the defendant, and why so many witnesses had testified at the Ginther hearing. The inquiries immediately followed allegations by the defendant that counsel had not consulted him about critical decisions, thus making it necessary for the court to address the issue. While a court must carefully evaluate statements made by a defendant and protect the attorney-client privilege where appropriate, it is not required to stand idle in the face of claims that counsel made decisions without consulting the defendant. In this case, however, the defendant made the principal decisions involved in the conduct of his Ginther hearing. The trial court was not required to let stand statements on the record, unexamined and unrebutted, that would have resulted in another remand to the trial court for another hearing about the effectiveness of appellate counsel.
Affirmed.
Chief Justice BRICKLEY, joined by Justice LEVIN, dissenting, stated that it is the extent of the trial court‘s departure from the sentencing guidelines, as opposed to the mere departure, in this case that constitutes an abuse of sentencing discretion.
Justice CAVANAGH, joined by Justice LEVIN, dissenting, stated that the trial court abused its discretion in imposing a disproportionate sentence, because the extent of its departure from the sentencing guidelines’ recommended minimum sentence was not supported by the reasons it gave.
A sentencing court that departs from the sentencing guidelines must clearly articulate its reasons for doing so, and must explain why those reasons warrant the extent of the departure. If the court is relying on reasons that are already accounted for in the sentencing guidelines or are already an element of the particular offense, it must explain how those reasons have not been fully accounted for in the sentence that the guidelines recommend.
A sentencing court should not summarily disregard the sentencing guidelines. The second edition of the guidelines does not fail to recognize the seriousness of criminal sexual conduct. Every forcible sexual assault inflicts lasting psychological harm, and the recommended ranges reflect a recognition of the life-altering nature of this offense. In this case, the trial judge revealed a disdain for the guidelines in general. He failed to explain how the situation in this case exceeds in seriousness the plight faced by every victim of a forcible sexual assault, nor did he explain why the exploitation by the defendant was extraordinary in its degree.
Because the trial judge failed to adequately explain how some of the reasons that he relied on were not sufficiently accounted for, it appears that the primary remaining reason for sentence departure was the defendant‘s prison misconducts. This factor alone would not justify the extent of the departure. Thus, because some of the trial judge‘s reasons may amount to legitimate departure reasons with a more sufficient explanation of why those reasons are more extreme than the statutory offense and the guidelines reflect, the case should be remanded for further articulation of the reasons.
Justice LEVIN, dissenting, stated that while some departure from the guidelines would have been warranted, provided the sentencing judge had adequately explained his reasoning, the
In Milbourn, the Supreme Court held that sentences were reviewable under the principle of proportionality, derived from legislation providing more severe punishments for more severe crimes and for offenders with prior convictions. The Court held that the trial court appropriately exercises the discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with that determination. However, an informal review of a sampling of applications to the Supreme Court for leave to appeal reveals that few defendants received sentences as long as the defendant‘s. In general, higher sentences were imposed only where a sexual assault: included a physical assault causing physical injury to the victim; involved a victim under the age of puberty, often as young as five, or an elderly victim; was committed by a defendant with a record of prior criminal activity, including prior criminal sexual conduct convictions, a long-term pattern of sexual abuse of the victim, or with a close familial relationship with the victim.
In this case, while the defendant was related to the victim by blood, he did not generally reside in the household. The victim was fourteen years old, and thus had reached puberty and was considerably older than most of the victims in the reviewed cases. The defendant did not have a history of sexual abuse involving the victim, nor did he have any prior criminal record. While the victim suffered psychological trauma, as would almost any victim of a sexual assault, she was not subjected to physical injury.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Robert A. Radnick and Carolyn M. Breen, Assistant Prosecuting Attorneys, for the people.
State Appellate Defender (by David A. Moran) for the defendant.
Amicus Curiae:
BOYLE, J. The defendant challenges his sentence on the grounds that the sentence is disproportional and that the trial court violated the attorney-client privilege. We find that the defendant‘s sentence does not violate the requirements of People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and that the sentencing judge did not violate the defendant‘s attorney-client privilege. Therefore, we affirm the decision of the Court of Appeals.1
I
FACTS
Upon discovering that the mother of his three female first cousins would be out of town at a funeral, the defendant persuaded the oldest cousin to allow him to spend the night with them in their home. The girls had been told by their mother not to let anyone in. When the defendant arrived late in the evening, the fourteen-year-old complainant was already asleep on the living room couch, her bed. Following several hours of conversation between the defendant and the complainant‘s two older sisters, aged eighteen and sixteen respectively, and the eighteen-year-old‘s departure to the hospital with a sick child, the defendant was left alone to sleep on the living room floor. Sometime thereafter, the defendant placed a pillow over his sleeping fourteen-year-old cousin‘s face, pulled
Part of this assault was witnessed by the complainant‘s sixteen-year-old sister, who entered the living room in response to the noise of something falling. Once there, she observed the defendant, naked from the waist down, on top of the victim, holding a pillow over her face.2 When she asked the defendant what he was doing on top of her sister, he replied, “I don‘t know,” and “I ain‘t doing nothing to her.” The sister went back to her bedroom.3 Later, the victim, crying, came into the bedroom, told her sister that “John Henry had raped her.” They went into the bathroom to wash out the victim‘s underwear, which “had white stuff” in them.
The defendant never admitted his guilt, contending that the victim fabricated the offense for reasons known only to herself. Moreover, the defendant testified at trial that many of the incriminating statements he gave to the detective in charge of the case that bore his signature were incorrectly transcribed because both he and the detective were “half asleep.”
The jury took one hour to convict the defendant of first-degree criminal sexual conduct. Finding the guidelines range of six to ten years inadequate, the trial judge sentenced the defendant to twenty-five to fifty years in prison.
The Court of Appeals remanded the case to allow the defendant to challenge his sentence and trial counsel‘s effectiveness. The successor judge, Richard Cunningham, held an evidentiary hearing over five days on these issues that fills 221 pages.
Notes
[T]here will be occasions when the conduct or the criminal record to be scored under the sentencing guidelines is extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines.This case simply is not one of those cases in which the effect on the victim and degree of exploitation are so extraordinary or egregious that even the highest score on the offense variable would be insufficient to reflect the conduct. For an example of such a case, see the facts of People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994).
Judge Cunningham noted that the defendant had received eleven major misconduct tickets during his time in prison. He also concluded that a witness called by the defendant, a former fellow inmate, was lying when he testified that he, not defendant, had started all the fights leading to the misconduct tickets. The judge also noted the defendant‘s absolute lack of regard for the victim and lack of remorse for the crime.
The sentencing information report listed the following reasons for departure:
(1) In general, the guidelines for csc offenses fail to adequately address the seriousness of the crime. Guidelines are based upon actual sentences imposed during a time prior to the “feminist movement‘s” success in having society in general, and judges in particular, recognize the “special” nature of such crimes.
(2) The guidelines fail to take into account the family relationship between the actor and the victim.
(3) This is a resentencing. The guidelines fail to take into account the eleven prison misconducts by this defendant since the original sentence.
(4) Guidelines fail to take into account defendant‘s absolute lack of remorse and low potential for rehabilitation.
(5) Guidelines are not sufficient to reflect the very high degree of exploitation in this case.
The Court of Appeals affirmed this judgment of sentence. The Court affirmed the decision that trial counsel had not been ineffective, rejected defendant‘s argument that the judge forced appellate counsel to violate the attorney-client privilege, and held that defendant‘s sentence was proportionate to the seriousness of the offense. Unpublished opinion per curiam, issued January 13, 1993 (Docket No. 117039) (after remand). This Court granted the defendant‘s application for leave to appeal. 445 Mich 880 (1994).
II
LEGALITY OF THE DEFENDANT‘S SENTENCE
The defendant challenges the validity of his sentence under People v Milbourn, supra, in which this Court held that some sentences that fall within the legislatively prescribed range may nevertheless be illegally long or short. According to Milbourn, a trial court abuses its discretion when it imposes a sentence that is not “proportional” to the seriousness of the matter.
Under Milbourn, the maximum sentence for a given offense is proportionate where the circumstances surrounding the offense place it in the most serious class with respect to the particular crime. Id. at 654; see also People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994).
The case at bar presents neither the maximum nor minimum sentence, and thus Milbourn directs courts to consult the second edition of the Michi-
In the absence of factors legitimately considered at sentencing and not adequately considered by the applicable guidelines, a departure from the recommended range indicates a possibility that a sentence may be disproportionate. Id. at 657, 661. However, Milbourn did not state or establish that any factors accounted for in the guidelines had been adequately considered or appropriately weighed. As we have recently noted, “[n]either the grids nor Milbourn dictate that a departure from guidelines is to be arithmetically measured to determine the propriety of a given sentence.” Merriweather, supra, 447 Mich 808. The United States Court of Appeals for the First Circuit expressed the same concept in United States v Ocasio, 914 F2d 330, 336 (CA 1, 1990), in these words:
Although some other courts have, from time to time, suggested formulaic approaches to assessing the reasonableness of particular departures, . . . we are wary of such pat answers.
In Milbourn, the Court repeatedly observed that sentencing judges are not required to adhere to the guidelines. The majority explained that “the guidelines may not be a perfect embodiment of the principle of proportionality,” 435 Mich 661, that they “do not have a legislative mandate,” id. at 656, and that “requir[ing] strict adherence to the guidelines would effectively prevent their evolution,” id. at 657.
In addition, assuming arguendo that the guidelines range is adequate to reflect the seriousness of the offense, we find that the sentence did not constitute an abuse of discretion because the offense involved circumstances not accounted for, or accounted for inadequately, in formulating the guidelines.
A. THE SERIOUSNESS OF THE CRIME
Judge Cunningham explained that he imposed a sentence higher than the range set by the Sentencing Guidelines Advisory Committee because that range is too low:
We have seen what I find to be ridiculously low guidelines in the offense of Criminal Sexual Conduct in the First Degree, just in general.
The observation is well taken. For example, for a defendant who had no prior convictions and who raped a victim at knife point but did not actually cut or inflict permanent injury on his victim, the guidelines would recommend a one-year minimum sentence as appropriate.4
For this defendant, who raped a fourteen year old by putting a pillow over her face, the guideline sentence—two to eight years—is so stunningly low that the trial judge could only think of one explanation:
I think that the guidelines for this offense reflect a time when young women were treated as property, when this wasn‘t considered a very serious offense at all.
While the accuracy of this statement is debatable, that does not undermine the conclusion that the range is too low.
Milbourn specifically contemplated that judges could impose sentences higher than the guidelines’ range when that range is too low:
[T]rial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. [Id. at 657.]
For the majority, Justice BRICKLEY5 wrote:
[T]he key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range. [Id. at 661.]
While we agree with the trial judge‘s conclusion that the recommended range is too low, the issue is not whether we agree with the trial court‘s selection of an appropriate sentence.6 Unless there is some basis for deciding what range would have been appropriate, we cannot reliably conclude that the sentence was disproportionate.
B. FACTORS NOT CONSIDERED BY THE GUIDELINES
Alternatively, Judge Cunningham pointed to
In some cases, there may be important sentencing factors that are not included in the sentencing guidelines. Perhaps the clearest example of such a factor is the prior relationship, if any, between the victim and the offender. [Id. at 660.]
The trial judge found the relationship to be an aggravating factor.
Second, the judge considered the fact that the defendant received eleven misconduct tickets in prison before being resentenced. Misbehavior after arrest is clearly a legitimate factor to consider at sentencing. Texas v McCullough, 475 US 134; 106 S Ct 976; 89 L Ed 2d 104 (1986); People v Mazzie, 429 Mich 29, 35; 413 NW2d 1 (1987) (opinion of BRICKLEY, J.); id. at 43-47 (BOYLE, J., concurring in part and dissenting in part). The guidelines do not account for misconduct in custody. However, just as an exemplary custodial record might be found to be a mitigating circumstance, misconduct in custody may be an aggravating circumstance indicating a disposition to violence or impulsiveness.
Third, the judge found that the guidelines failed to account for the “defendant‘s absolute lack of remorse and low potential for rehabilitation.” Both factors are legitimate considerations in determining a sentence. See People v Wesley, 428 Mich 708; 411 NW2d 159 (1987) (lack of remorse); People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972) (potential for rehabilitation).
In addition, although not referenced in the sen-
Finally, by the time the Ginther7 hearing was concluded, the defendant was making allegations that his appellate attorney, who served him commendably in difficult circumstances, was also ineffective.
C. FACTORS CONSIDERED WITHIN THE GUIDELINES
The sentencing judge also pointed to a factor that he felt was considered inadequately: the high degree of exploitation of the victim. The record presents a pattern of exploiting family relationships that began with defendant going to the home on the night in question and continued throughout the evidentiary hearing. Producing family members to testify who had no information relevant to the charge could have been reasonably viewed by the sentencing court as continued exploitation of the victim by dividing the family over the incident. As the trial court expressly observed in response to defense counsel‘s claim regarding the effect on the victim:
That would be absolutely no value to me coming from these people. I‘ll tell you why. Because it‘s very clear to me that the concern here is with Mr. Houston, it is no way at all to that young woman. So, A, I would find I would have a concern about the believability of it. But B, I can find where that young woman‘s going to have to suppress around her family anything that she feels, she can‘t let out anything she feels about this incident because of the lack of support she‘s been given.
The dissent‘s assertion that the guidelines range “already reflected a family relationship between the defendant and the victim,” post at 345, overlooks the fact (apparent in the trial court testimony and the testimony at the evidentiary hearing) that the familial relationship alluded to was not simply the relationship between the victim and the defendant. Moreover, the trial judge‘s view agreed with the Legislature‘s view of the seriousness of the offense. The Legislature recognized that a familial relationship between the victim and the offender is an aggravating factor and established that, by virtue of the family relationship, the crime in question is “punishable by imprisonment in the state prison for life or for any term of years.”
D. ANALYSIS OF THE SENTENCE
In summary, the record reflects that the trial court considered defendant‘s exploitation of the victim, postcustody misconduct, absolute lack of remorse, production of perjured testimony, and exploitation of the family relationship as reasons for the sentence imposed. Contrary to the dissent‘s assumption, the guidelines furnish no reliable basis for the Court to conclude that defendants presenting similar patterns would have been sen-
It is likely, although not provable, that a defendant found guilty by a jury of csc I who failed to express remorse while not expressly denying guilt, engaged in substantial subsequent misconduct, exploited the family relationship, and produced testimony found to be perjurious would be sentenced in the range of the highest twelve and one-half percent of sentences the guidelines do not reflect.8
It is likely, although again not provable, that the guidelines range of two to eight years represents to some significant degree cases disposed of with explicit or implicit sentence concessions. Federal guidelines data, for example, indicate that guilty pleas, on average, result in considerably lower sentences, thirty to forty percent lower than what would have been imposed had the defendant been convicted at trial.9 If one assumes that some portion of the pool of sentences falling into the range of two to eight years was imposed as a result of waiver trials, it is again likely that this defendant was not in fact similar to others within that grid. Taking these considerations together in light of our experience that the vast majority of defendants express remorse after conviction, it is highly likely that the guidelines’ ranges reflect sentences of those who have received systemic sentence concessions and demonstrated potential for rehabilitation by expressing remorse. In short,
By allowing departures when the guidelines consideration of a particular factor is “not adequate,” Milbourn allows sentencing judges to reweigh the guideline variables. It is through this process that the trial judges can remove the distortions induced by a classification system that is, by necessity, overly simplistic. The data that form the basis for the range within each cell have been filtered10 through the point system formulated by the Sentencing Guidelines Advisory Committee. While compilation of empirical data and considerations about ease of use required a relatively simple methodology, application of that methodology to concrete cases can be very questionable.11
III
THE POSITION OF THE DISSENTING OPINION
We reject the dissent‘s conclusion that the trial court‘s considerations were already factored into and accounted for by the Criminal Sexual Conduct Guidelines. Cf. post at 344. To suggest that the trial judge must establish to what extent the guidelines variables do not fully account for sen-12
There is no basis for the dissent‘s assumption that the guidelines “adequately” account for the factors and weights assigned. The guidelines assign a numerical weight to certain variables on the assumption that these weights approximate what trial judges were doing in the cases within the statistical base. The committee properly and specifically disclaimed any suggestion that it had properly weighed the variables identified.13 Thus, we are unable to conclude that the variables identify and assign the proper weight to any given factor that any judge, many judges, or most judges would assign.
From our analysis it is clear that the guidelines do not reflect certain variables that a sentencing judge may properly consider. Further, as the guidelines presently exist, no one knows for certain which variables were considered, or what weight was accorded them. Thus, it cannot be said
IV
THE ATTORNEY-CLIENT PRIVILEGE
The defendant contends that resentencing is required because the court violated his “attorney-client privilege when it ordered defense counsel to reveal that Mr. Houston had insisted on calling witnesses to his Ginther hearing.” We reject this claim because the defendant waived his privilege.14
At issue are inquiries directed to appellate defense counsel about whether he had consulted with his client and why so many witnesses had testified at the hearing. Contrary to the defendant‘s contention that the reason for the inquiry was to determine whether defendant himself had caused such a lengthy hearing, it is clear that the question was directed to the adequacy of counsel‘s representation and the implicit suggestion that counsel‘s deficiencies had deprived defendant of a meaningful hearing. These inquiries immediately followed allegations by the defendant that counsel “did not come and talk to me and see me,” and had not consulted him about critical decisions. The judge questioned defense counsel about the truth of these allegations.15
listen to your attorney, your inability to comport yourself in the courtroom. You know everything. You‘re going to tell everybody, you‘re going to tell Mr. Shrewsbury, you‘re going to tell Mr. Black, you‘re going to tell the Court. I have seen that type of behavior from you here. It even leads me to believe stronger that you did not suffer any ineffective assistance by Mr. Black. You made Mr. Black‘s job extremely difficult.
Defendant Houston: May I speak?
The Court: Continue.
Defendant Houston: You said I made Mr. Black‘s job worse and difficult. No, I did not. Mr. Black did not represent me. I do not fault Mr. Dennis Shrewsbury if he done his job, but Mr. Dennis Shrewsbury, he did not come and talk to me and see me. That‘s the same way Mr. Black done to me in 1987. They made decisions without talking to me. I come in the courtroom and all of a sudden everything come at me at one time. What do I supposed to do? I‘m trying to talk to him. I didn‘t get harsh with him. This is my life on the line and I have a right to consult with my attorney, but there‘s a time and place to consult with your attorney, not in the courtroom all at one time, man. Your attorney is supposed to come and see you and talk with you about things, but when you come in the courtroom and everything come at you at one time . . . .
The Court: Okay, Mr. Houston, stop right there. Mr. Shrewsbury, this is probably the longest evidentiary hearing I‘ve ever held. In that regard, sir, have you had occasion to talk to Mr. Houston during any of these many, many proceedings, have I given you the opportunity to have private conversations with him or is Mr. Houston accurate when he says that he did not have time to consult with you?
Mr. Shrewsbury: I have talked to Mr. Houston. I have not seen him in the jail. I have talked to him here in the court and in the lock-up.
The Court: And the number of times we‘re here in the court and lock-up, was there any reason to see him in the jail?
Mr. Shrewsbury: I guess that‘s a matter of opinion, Your Honor.
The Court: In your opinion?
Mr. Shrewsbury: Do I have to answer that?
The Court: Yes sir.
Mr. Shrewsbury: Your Honor, I didn‘t see any other need to discuss other problems or other parts of the case except what we did here in court.
The Court: In your professional opinion, sir, just in your own professional opinion, was there a need to call all these witnesses that you called or were you doing that, sir, just because your client insisted it be done?
Mr. Shrewsbury: Your Honor, I think that there was a need to call the witnesses.
The Court: All of them?
Mr. Shrewsbury: No.
There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. As a fair canon of decision, the following distinctions may be suggested:
* * *
(6) When the client alleges a breach of duty to him by the attorney, the privilege is waived as to all communications relevant to that issue. [8 Wigmore, Evidence (McNaughton rev), § 2327, pp 636-638.]
The fact that the defendant‘s allegation was not brought in a formal complaint against his attorney is of no consequence. In Leverich v Leverich, 340 Mich 133, 137; 64 NW2d 567 (1954), a divorce case in which the attorney was not a party, this Court noted that “[a]fter the wife claimed to the court that she had received from her attorney improper advice as a result of which she agreed to the property settlement, and she had testified in relation to such claim, it was proper and competent for the attorney to testify as to the advice he gave her.”
The defendant‘s claim on the record that his
For the foregoing reasons, we affirm the decision of the Court of Appeals.
RILEY, MALLETT, and WEAVER, JJ., concurred with BOYLE, J.
BRICKLEY, C.J. (dissenting). I concur with the general rule posited by Justice CAVANAGH, as I understand that rule to be: A sentence that departs from the recommended guidelines is not necessarily disproportionate if the judge‘s reasons for departure consist of factors not already encompassed by the guidelines. The rule posited by Justice CAVANAGH not only recognizes that the guidelines fail to account for the multitude of variables surrounding a particular offense and offender, but also provides a workable method by which trial courts and appellate courts can uphold proportionality in sentencing.
I
The sentencing judge specifically identified the reasons upon which he based his decision to depart from the sentence guidelines for first-degree criminal sexual conduct. Unlike the majority, I confine my review to those reasons that are specifically identified on the sentencing record and in the departure evaluation form. To speculate, as the majority does, that reasons other than those identified by the sentencing judge, motivated his decision to depart from the guidelines, defeats the purposes of requiring judges to specifically articulate their reasons for departure. See People v Fleming, 428 Mich 408; 410 NW2d 266 (1987).
Properly focusing on the reasons that the sentencing judge identified as the basis for his departure from the guidelines, I agree with Justice CAVANAGH that the “psychological effect [of this crime] on the victim” and “exploitation of the victim” are factors already encompassed by the criminal sexual conduct sentencing guidelines and were insufficient reasons for departure.1 I also
The sentencing judge identified the defendant‘s eleven prison misconducts as a reason for departure. Because prison misconduct is a relevant sentencing consideration, not encompassed by the guidelines, the judge did not abuse his discretion by considering it.
Similarly, the family relationship between the defendant and the victim was a relevant sentencing consideration not encompassed by the criminal sexual conduct guidelines. People v Milbourn, 435 Mich 630, 660-661 (1990). At least in the context of a first-degree criminal sexual conduct offense, it is not sufficient to say that because a factor, such as family relationship, was an element of the offense, it necessarily is encompassed by the guidelines. In contrast to other offenses, a conviction for first-degree criminal sexual conduct may be premised on eight distinct theories, all of which are punishable by imprisonment for life or any term of years, many of which would not require
The sentencing judge also identified the defendant‘s “low rehabilitative potential” as a reason for departure from the guidelines. While the record is less than clear about why this defendant is regarded as having low potential for rehabilitation, an individual‘s potential for rehabilitation generally is a legitimate sentencing consideration, not already encompassed by the guidelines. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972). Therefore, it was not an abuse of sentencing discretion to consider that factor.
The defendant‘s apparent lack of remorse is also not a factor considered by the guidelines. However, under the facts of this case, I cannot conclude that remorse was a proper consideration. Following the defendant‘s allocution in which he repeatedly asserted his innocence, the sentencing judge explained its finding of remorselessness as follows:
First of all, I‘m extremely concerned by your lack of remorse. Now, certainly you are protesting your innocence, and you have every right to pro-
test your innocence and I will not hold that against you in any way. But I do see among—I see in you, sir, an absolute failure to accept responsibility for your behavior and absolute disregard for the concern about other people. I see now a desire only for yourself, an absolute disregard for that young woman that was hurt. I was very concerned about that, no remorse whatsoever in what you did.
While the sentencing judge paid lip service to the defendant‘s right to assert innocence, it is obvious that the judge‘s finding of remorselessness was based merely on the defendant‘s assertion of innocence. Therefore I cannot conclude that remorselessness was a proper sentencing consideration in this case. In People v Yennior, 399 Mich 892 (1977), this Court held: “A court cannot base its sentence even in part on a defendant‘s refusal to admit guilt.” A majority of this Court reaffirmed Yennior and explained that reliance on a defendant‘s assertion of innocence is not a proper sentencing consideration if it appears that “had the defendant affirmatively admitted guilt, his sentence would not have been so severe.” People v Wesley, 428 Mich 708, 713, 725; 411 NW2d 159 (1987).2
On the basis of the record in this case, it appears that had the defendant admitted guilt, his sentence would not have been as severe because the perceived lack of remorse, on which this sen-
In this case, any attempt to distinguish the defendant‘s continued assertion of innocence from his lack of remorse would be an illusory effort designed to justify a sentence that would have been less severe if the defendant had affirmatively admitted his guilt. Nothing in Yennior or Wesley, supra, compels such sophistry.
II
While the sentencing judge based his discretionary departure from the guidelines on some reasons not already encompassed by the guidelines, his other reasons consisted of factors already encompassed by the guidelines and were of sufficient importance and significance to lead me to conclude that the extent of departure from the guidelines in this case resulted in a disproportionate sentence. Accordingly, I would find the sentence to be invalid, and would remand for resentencing.
LEVIN, J., concurred with BRICKLEY, C.J.
CAVANAGH, J. (dissenting). The defendant was convicted by a jury of first-degree criminal sexual conduct1 and was sentenced to a term of twenty-five to fifty years. The Court of Appeals affirmed after a remand at which the same sentence was imposed. The defendant argues that the trial court abused its sentencing discretion by imposing a disproportionate sentence. I would hold that the trial court abused its sentencing discretion by
I
A jury found that the defendant had engaged in forcible sexual intercourse with his fourteen-year-old cousin, while spending the night of March 5, 1987, at her home. At the July 1987 trial, the victim testified that she had been asleep on the couch when the defendant placed a pillow over her face and penetrated her vaginally. The defendant denied any sexual misconduct.
The trial judge departed from the guidelines’ recommended minimum range of six to ten years, and sentenced the defendant to a term of twenty-five to fifty years imprisonment. The court later denied a delayed motion for new trial.
On appeal, the Court of Appeals remanded the case to the trial court for two purposes.2 First, the trial court was to conduct a Ginther3 hearing to consider the defendant‘s claim of ineffective assistance of trial counsel. Second, if the trial court determined that the trial counsel had not been ineffective, the trial court was directed to resentence the defendant. The panel instructed the trial court to articulate on the record its reasons for departing from the guidelines, as required by People v Fleming, 428 Mich 408; 410 NW2d 266 (1987). Further, the panel directed the trial court to comply with the Milbourn4 principle of propor-
In May 1992, on remand, the original trial judge‘s successor conducted a lengthy Ginther hearing, which consumed four court sessions over a six-week period. The court rejected the defendant‘s claim of ineffective assistance of counsel and immediately resentenced him.
The judge first scored the offense variables under the sentencing guidelines. He scored offense variable 7, Offender Exploitation of Victim Vulnerability, the maximum fifteen points.5 In doing so, the judge stated:
It would be hard for me to imagine a more exploitive situation. We have testimony... indicating that the victim, 14 years old, is at her home. Her parents are gone. They‘re out of town to attend the brother‘s funeral and the young woman‘s granddaddy‘s funeral. And while they‘re
gone, this defendant, Mr. John Henry Houston, exploits the family relationship to get in the door, to even get in the home. The young woman was told by her parents not to let anybody in while they were gone. . . . And he gets in only because the way he exploits and used the family relationship. He exploits and uses that relationship to get close to that young girl, to get her to trust him. He uses and exploits that relationship to be in a situation where he can ultimately grab the pillow, put it over her face while he rapes her there on the floor in her own home. He uses the great difference in their size and age to carry that out. He exploits the fact that he‘s so much bigger and she‘s got nowhere to cry for help. I can‘t think of a more exploitive situation than this man who weasels his way and exploits his way into the home of that young girl, waits until they can get alone and then takes her physically against her will right there in the home of her own—in [sic] the floor of her own home. I‘m giving 15 points only because I can‘t give any more.
The judge then determined that the guidelines recommended a minimum sentence of between twenty-four and ninety-six months. However, he again imposed the sentence of twenty-five to fifty years.
After remand, the Court of Appeals affirmed the sentence, finding that it was proportionate under Milbourn.6
II
In Milbourn, this Court found “shocks the conscience”7 to have been an unsatisfactory formula-
In Milbourn, we further explained that the second edition of the Sentencing Guidelines reflects an attempt to parallel this principle of proportionality scheme. Recognizing the limitations of the guidelines, however, we noted that a departure from the guidelines would be appropriate in a situation in which the guidelines did not adequately reflect legitimately considered circumstances of the particular offender and the seriousness of the particular offense. Id. at 657. We cautioned that a sentencing court‘s failure to give adequate reasons for such departures, and for the extent of such departures, should signal the appellate court that the sentence may be disproportionate. Id. at 659-660. By approving departures based on ambiguous reasons, the appellate court risks the danger of allowing the sentencing judge to improperly consider factors twice.
The instant case presents an opportunity to refine further our Milbourn discussion on departures from the sentencing guidelines. I would hold that a sentencing court that departs from the guidelines must clearly articulate its reasons for doing so, and must explain why those reasons warrant the extent of the departure. Most importantly, if the court is relying on reasons that are
there will be occasions when the conduct or the criminal record to be scored under the sentencing guidelines is extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines. [Id. at 660, n 27.]
However, I believe the sentencing court should not cover the same ground twice.
III
We now turn to the guidelines departure in this case. On the sentencing information report (SIR) departure evaluation form, the trial court listed five reasons for departure outside the recommended range:
(1) In general, the guidelines for csc offenses fail to adequately address the seriousness of the crime. Guidelines are based upon actual sentences imposed during a time prior to the “feminist movement‘s” success in having society in general, and judges in particular, recognize the “special” nature of such violent crimes.
(2) The guidelines fail to take into account the family relationship between the actor and the victim.
(3) This is a resentencing. The guidelines fail to take into account the eleven prison misconducts by this defendant since the original sentence.
(4) Guidelines fail to take into account defendant‘s absolute lack of remorse and low potential for rehabilitation.
(5) Guidelines are not sufficient to reflect the very high degree of exploitation in this case.
At the resentencing, the judge further commented on his departure reasons. In doing so, he revealed a disdain for the guidelines in general.
Let me begin by saying that I find these guidelines to be totally inaccurate—inadequate in regard to the situation. Guidelines are historical and guidelines are based upon what sentences have been given in the past, and I think that the guidelines for this offense reflect a time when young women were treated as property, when this wasn‘t considered a very serious offense at all. We have seen what I find to be ridiculously low guidelines in the offense of Criminal Sexual Conduct in the First Degree, just in general.
The defendant contends that the judge impermissibly discarded the guidelines merely because he disagreed with them in general. The defendant cites Milbourn, and People v Schnepp, 185 Mich App 767; 463 NW2d 183 (1990), for the proposition that a trial judge may not simply disregard the guidelines. I agree. In Milbourn at 656, we stated that the second edition of the sentencing guidelines was the best “barometer” for sentencing a given case. Further, the second edition better reflects current sentencing practices, and, therefore, it should be used as the starting point for sentencing. The sentencing court should not summarily disregard the guidelines altogether.
Regarding the sentencing judge‘s contention that the guidelines reflect archaic attitudes toward sexual assault, the defendant reminds us that the second edition of the sentencing guidelines went into effect in 1988, long after the criminal sexual
The trial court also based departure from the guidelines on the defendant‘s blood relationship with the victim. The prosecutor and the defendant both state that the blood relationship was the element of the charge that elevated the crime to first-degree criminal sexual conduct.9 The defendant further argues that had the defendant not been related to the victim, the maximum that he could have been convicted of was third-degree criminal sexual conduct.10 The defendant contends that the guidelines range would then have been twelve to twenty-four months. He argues that, in this case, the blood relationship, in and of itself, raised the applicable guidelines range to twenty-four to ninety-six months. I would agree. I believe that the recommended range of minimum sentences for this defendant, in this case, already reflected a family relationship between the defendant and the victim. I do not believe that the trial judge explained how this elevated range did not sufficiently account for the blood relationship factor.
During resentencing, the judge also commented
For instance, the court scored zero points for offense variable 13 (psychological injury to the victim), citing an insufficient record caused by the victim‘s failure to come forward. However, after scoring the guidelines, the trial court stated:
I am concerned that the guidelines do not take into account long-term effects of this type of sexual assault. Certainly we have one little category that says five points if there‘s a psychological injury to the victim, but do we have something that‘s going to take into account the entire life of that 14-year-old who was raped there in her own home under these extraordinarily cruel circumstances?
The judge further rejected the attorney‘s attempt to add that the victim had recovered. The trial court opined that the victim was suppressing her feelings because her relatives had been unsupportive. He further explained:
I‘ll take that into account, that she is leading an apparently on-the-surface normal life, but I cannot accept the fact that there is not a potential for serious psychological damage to occur, and if it hasn‘t exhibited any manifest signs at this point, that doesn‘t mean it won‘t occur in the future, and the possibility is one of the things that does concern me.
Every forcible sexual assault inflicts lasting psychological harm. That is one of the many reasons that the Legislature provides a maximum of life
And finally, the court based its departure from the guidelines on the very high degree of exploitation that it found in this case. I would note that the judge had already scored fifteen points for offense variable 7, based on exploitation of the victim by the defendant. My review of the record does not reveal an obvious explanation of why the exploitation by the defendant was “extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines.” Milbourn at 660, n 27. Here, the victim was asleep before the sexual assault. I would find that the trial court has not sufficiently explained how the exploitation exceeds that found in cases of first-degree criminal sexual conduct in which the family relationship is an element of the offense. Neither has the court explained its apparent conclusion that the exploitation has not been fully accounted for by scoring the maximum number of points for offense variable 7.
Because the trial judge failed to adequately explain how some of the reasons that he relied on were not sufficiently accounted for, I believe that the primary remaining reason for sentence departure was the defendant‘s prison misconducts. This
At the time of sentencing, this defendant was thirty-one years of age. The presentence investigation report contained this rather unremarkable evaluation:
John Henry Houston is a 26 year old native of Birmingham, Alabama. The Houston family migrated to Detroit, MI in 1966. The defendant has some positive factors in his background including a stable upbringing and the continued support of his family. He has no youth bureau contacts or juvenile record. The instant case represents Mr. Houston‘s only felony conviction on his adult record. The defendant is in good health and denies a substance abuse history.
There are also a number of negative features in this case. The defendant‘s natural parents were never legally married. The defendant‘s mother married Cornelius Jones in 1957 and that marriage ended in separation in 1986. The defendant fathered two children (approximately 6 years and 9 years) from different women: the defendant‘s mother has had legal custody of the defendant‘s older daughter since 1986. The defendant stated he was employed at the Mini-Mart Food Center in Detroit, Mi from 1983 to March 1987, however, per a phone conversation with the owner‘s son of this
mini-mart food store, the defendant last worked there in 1985. Furthermore, the defendant stated from January, 1987 to March, 1987 he held gainful employment at the Orlon‘s Enterprise located in Livonia, MI before quitting. The directory assistance has no listing for this company, therefore, employment could not be verified. A check with the Detroit Police Department Identification Bureau reveals that the defendant was convicted of Possession of Marijuana on March 2, 1979 before the Honorable William C. Hayes and was fined $25 or four days jail on case # T337742. The complainant on the instant offense or her family failed to return the victim‘s impact statement, therefore, restitution is not recommended at this time.
The top end of the recommended guidelines range was eight years in prison. However the sentencing trial judge felt that this was far from adequate for this first-time offender. He was of the belief that for this hardly unusual intrafamily csc offense, it was necessary to more than triple the top of the guideline range. This belief will cost the taxpayers of this state some $750,000 in prison costs before this defendant turns fifty-six years of age and serves his minimum sentence. A sentencing judge certainly has the right and obligation to protect society from violent offenders. Surely, however, the circumstances of the offense and the characteristics of the offender must be carefully balanced to protect society, to not squander the state‘s scarce resources and to see, for a definite, reasonable period of time, that the defendant, in a structured setting, works toward rehabilitation. His probation officer stated: “It is our feelings that his rehabilitation could best be effective in a structured setting where he would derive the maximum help.” In my view, giving time like candy is irresponsible, symptomatic of a simplistic mentality
IV
The defendant also argues that the trial court violated his attorney-client privilege at the resentencing hearing by improperly asking his attorney whether it was the defendant who had insisted on calling so many witnesses to testify at the hearing. His attorney‘s answer revealed that it had indeed been the defendant who had wanted the witnesses called. The Court of Appeals found no merit to this issue. My review of the record leads me to conclude that the judge asked an irrelevant question and that he treaded dangerously close to violating the defendant‘s attorney-client privilege. I believe that the judge was expressing his frustration with the length of the hearing. However, I do not believe that the judge used the information that he obtained to punish the defendant. Because I would remand for resentencing, I would not decide whether the defendant was prejudicially harmed by a violation of his attorney-client privilege. I disagree with the majority‘s holding that the defendant waived his privilege.
LEVIN, J., concurred with CAVANAGH, J.
LEVIN, J. (dissenting). I have signed and join in Justice CAVANAGH‘s and Chief Justice BRICKLEY‘S dissenting opinions, which focus principally on the sentencing guidelines.
I write separately to explain why I have concluded that the sentence imposed on John Henry Houston was disproportionate under the standard set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
In Milbourn, this Court held that sentences were reviewable under the “principle of proportionality,” derived from legislation providing more severe punishments for more severe crimes and for offenders with prior convictions.3 This Court said, “The trial court appropriately exercises the discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination.”4 The Court concluded that, because the sentencing guidelines “represent the actual sentencing practices of the judiciary,” they are “the best ‘barometer’ of where on the continuum from the least to the most threatening circumstances a given case falls.”5
Quite apart from the guidelines, the sentence imposed on Houston violates the principle of proportionality set forth in Milbourn.
The majority‘s criticism of the sentencing guidelines suggests the need for a current scientific study of sentencing practices in Michigan courts to
In the absence of such a study, I have conducted an “unscientific” review of a sampling of commissioner‘s reports evaluating applications for leave to appeal in CSC cases in January and February 1994 and February, 1995. These over sixty cases are most likely to reflect the range of punishment imposed in circumstances resembling the instant case.
From this review, it appears that few defendants have received sentences as long as Houston‘s sentence of twenty-five to fifty years, and then only when one or more of the following factors were present: a physical assault, in addition to the sexual assault, causing physical injury to the victim;7 a victim under the age of puberty, often
This is not to say that some departure from the guidelines would not have been warranted, provided the sentencing judge had adequately explained his reasoning.
The following are categorized summaries of some representative cases.13
In the following cases, there was a familial or close relationship between the defendant and the victim, usually a young child:
People v Alderman, No. 97260—Defendant was sentenced to terms of ten to twenty years. He was convicted by a Lapeer Circuit Court jury of three counts of CSC I on evidence that he had sexual intercourse with his eleven-year-old stepdaughter four times during a night that the victim‘s younger brother was taken to the hospital by her mother.14
People v Vega, No. 99747—Defendant was sentenced to fifteen to thirty years. He was convicted by an Oakland Circuit Court jury on evidence that he raped the eleven-year-old friend of his sister on two occasions at his home.
People v Hill, No. 98388—Defendant was sentenced to ten to twenty years. The victim was a six-year-old friend of her daughter. Defendant was convicted by a Macomb County jury of CSC I on evidence that she penetrated the victim‘s vagina with her finger while the victim was sleeping at the defendant‘s home.
People v Greer, No. 97337—Defendant was sentenced to ten to twenty years. He was convicted of CSC I by a Marquette County jury on evidence that he forced the victim, the ten-year-old biological son of his wife, to engage in oral sex.16
People v Brown, No. 98195—Defendant was sentenced to three to twenty years for CSC I and three to fifteen years for CSC II. He was convicted by an Oakland County jury on evidence that he sexually assaulted his three-year-old daughter on two occasions.17
People v Heath, No. 97484—Defendant, age forty-four, was sentenced to fifteen to twenty-five years for convictions of CSC I and ten to fifteen years for CSC II. Defendant was convicted on a nolo contendere plea to six counts of CSC I and one count of CSC II in Oakland Circuit Court on evidence that he, a close family friend of the victim, had forced her, from the age of seven to the age of eleven, to engage in over 100 instances of forced oral, digital and vaginal penetration.
People v Farnsworth, No. 97849—Defendant was sentenced to four to ten years for a CSC I convic
People v Parsons, No. 100403—Defendant, age fifty-five, was sentenced to fifteen to thirty years. He was convicted in Eaton Circuit Court on a plea of guilty of one count of CSC I on evidence that he had his six-year-old granddaughter fellate him.19
People v Glockzin, No. 100473—Defendant, age twenty-one, was sentenced to seven and one-half to forty years. He was convicted of CSC I on a plea of guilty in Muskegon Circuit Court on evidence that he forced two victims, a five-year-old girl and her ten-year-old brother, to engage in oral sex.20
People v Luckey, No. 97530—Defendant, age twenty-eight, was sentenced to forty to eighty years for two CSC I convictions, and ten to fifteen years for a CSC II conviction. He was convicted by a Recorder‘s Court jury on evidence that he engaged in repeated vaginal intercourse with the eight-year-old daughter of his live-in girlfriend. As a result of these encounters, the victim suffered genital warts.
In the following cases, in addition to the close relationship with the victim, the defendant had a prior criminal record:
People v Santos, No. 97651—Defendant, age thirty-two, was sentenced to twenty-five to fifty years. He was convicted by an Ingham Circuit Court jury of two counts of CSC I on evidence that
People v Matthews, No. 100501—Defendant was sentenced to fifteen to twenty-two and one-half years as a second felony offender. He was convicted following a Muskegon Circuit Court bench trial of one count of CSC III on evidence that he engaged in a regular pattern of sexual intercourse with his daughter since she was twelve.22
People v Mott, No. 100551—Defendant, age thirty-four, was sentenced to nine and one-half to fifteen years. He was convicted on a plea of guilty of one count of CSC II in the Saginaw Circuit Court on evidence that he molested the nine-year-old victim, who called him “Uncle John,” while she stayed with him during her summer vacations from school.23
People v Ricky Lee Walker, No. 100542—Defendant was sentenced to fourteen to thirty years. He was convicted on a plea of guilty of one count of CSC I in Genesee Circuit Court on evidence that on numerous occasions, beginning when his stepdaughter was in the fourth grade and continuing until her thirteenth birthday, he forced her to perform fellatio and engage in vaginal intercourse.24
People v Nelson, No. 100534—Defendant, age nineteen, was sentenced to eleven to thirty years
People v Corder, No. 100519—Defendant, age fifty-five, was sentenced to twelve to twenty-two and one-half years. He was convicted by a Berrien Circuit Court jury of one count of CSC II on evidence that he engaged in sexual conduct with his mentally retarded twenty-four-year-old daughter.26
People v Saunders, No. 100500—Defendant, age forty-two, was sentenced to fifteen to thirty years. He was convicted on a plea of nolo contendere in the Kent Circuit Court on evidence that he attempted to have sexual intercourse with his ten-year-old daughter, and, when she resisted, performed cunnilingus and digitally penetrated her vagina, and then ejaculated.27
People v Abernathy, No. 100487—Defendant, age twenty-eight, was sentenced to life in prison. He was convicted in Detroit Recorder‘s Court of CSC I on evidence that he sexually assaulted the twelve-year-old daughter of the woman with whom he was living.28
The sentence imposed on Houston, who had no prior record, is disproportionate. I would reverse and remand for resentencing.
Justice ARCHER‘S opinion, joined by Justice GRIFFIN, identified three factors that would indicate that a sentence was likely to have been improperly influenced by the defendant‘s persistence in his innocence: “(1) the defendant‘s maintenance of innocence after conviction, (2) the judge‘s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe.” Id. at 713. Justice LEVIN and I expressed our opinion that a sentencing judge could properly consider those factors “which exist apart from a defendant‘s continued assertions of innocence.” Id. at 725. Unpublished opinion per curiam, issued February 19, 1992 (Docket No. 117039). Ante at 321.15 Offender exploits the victim due to a physical disability, mental disability, youth, agedness, or an abuse of authority status
5 Offender exploits the victim through a difference in size/strength, or because the victim was intoxicated, under the influence of drugs, asleep, or unconscious
0 No exploitation
Instructions
A. The mere existence of one or more of these factors should not automatically be equated with victim vulnerability.
B. Exploitation refers to the manipulation of the victim for selfish or unethical purposes.
C. Vulnerability refers to the readily apparent susceptibility of the victim to injury, physical restraint, persuasion, or temptation.
D. Abuse of authority status refers to situations where a victim is exploited out of fear or deference to an authority figure (e.g., parent-child, doctor-patient). [Michigan Sentencing Guidelines (2d ed), p 45.]
Id. at 656.It is only the fact that the constraint on discretion by Milbourn is ostensibly rooted in actual sentences imposed by circuit judges that gives this Court even the slightest claim of authority to declare void as too high sentences that fall within the legislatively prescribed range. The criminal sexual conduct statute provides that a defendant is guilty of third-degree criminal sexual conduct if there is penetration and the victim is at least thirteen years old, but less than sixteen years old.A judge of a court having jurisdiction is authorized and empowered to pronounce judgment against and pass sentence upon a person convicted of an offense in that court. The sentence shall not be in excess of the sentence prescribed by law. [
MCL 769.1(1) ;MSA 28.1072(1) .]
Under the federal sentence guidelines scheme, the sentencing commission has been given legislative authority to determine guidelines,
People v Perez, No. 97452—The defendant was sentenced to ten to thirty years on three counts of CSC I. He was convicted by an Ottawa Circuit Court jury on evidence that on one occasion he had vaginal intercourse and engaged in cunnilingus with a twelve-year-old girl who was babysitting his girlfriend‘s children.
People v Raymond Anthony Walker, No. 100627—Defendant was sentenced to five to twenty-two and one-half years as an habitual offender. He was convicted by a Muskegon Circuit Court jury of a sexual assault of a six-year-old victim while he was staying at her mother‘s home.
People v Ritchie, No. 100777—Defendant was sentenced to thirty to sixty years. He was convicted by a Recorder‘s Court jury of CSC I on evidence that he attacked the eight-year-old daughter of the family with whom he was living. As a result, the child‘s hymen was perforated and she had contracted gonorrhea. The defendant had a prior armed robbery conviction and was an escapee from prison.
People v Duggan, No. 98211—Defendant, age fifty-four, was sentenced to fifteen to thirty years. He was convicted by a Macomb County Circuit Court jury on evidence that he forced a mentally retarded eleven-year-old boy to perform fellatio on him in the bathroom of a donut store they both regularly frequented. The defendant had a long prior criminal record.
People v James Jones, No. 97723—Defendant, age forty-five, was sentenced to twenty-four to fifty years as an habitual offender after a remand for resentencing by the Court of Appeals. He was convicted by a Genesee County jury of CSC I on evidence that he sexually assaulted a twelve-year-old boy with whom he had become acquainted and who spent a night in the defendant‘s automobile.
People v Debs, No. 100035—Defendant, age fifty-four, was sentenced
People v Lyons, No. 97414—Defendant, age forty, was sentenced to twenty-five to forty years for CSC I, and ten to fifteen years for robbery. He was convicted by a Calhoun Circuit Court jury for assaulting a sixteen-year-old boy on the street and robbing him of a nickel. Apparently angered by the meager amount, he pulled the boy off the sidewalk out of sight, pulled down the boy‘s pants and penetrated his anus with his finger. Lyons then attempted to engage in anal intercourse, but fled when he saw police. Lyons had one prior misdemeanor and three prior felony convictions, including one conviction each for CSC I and attempted CSC II.
The dissent offers no support for the assertion that the judge “treaded dangerously close to violating the defendant‘s attorney-client privilege.” Post at 350. Defendant had threatened the siblings if they told anyone.The Court: If there was any problem between you and Mr. Black, it wasn‘t his ineffectiveness, sir. It was your inability to