PEOPLE v SMITH
Docket No. 134682
Supreme Court of Michigan
Decided July 31, 2008
482 MICH 292
In an opinion by Justice KELLY, joined by Chief Justice TAYLOR and Justices CAVANAGH, YOUNG, and MARKMAN, the Supreme Court held:
The trial court articulated some legitimate reasons for a departure, but failed to justify the severity of the sentences imposed in this case. The trial court abused its discretion by not establishing why the sentences imposed were proportionate to the offense and the offender.
- A trial court must articulate the rationale for the departure it made. A reviewing court may not substitute its own reasons for departure, nor may it speculate about conceivable reasons for departure that the trial court did not articulate or that cannot reasonably be inferred from what the court articulated.
- 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.
- The trial court‘s articulation of reasons for the departure must be sufficient to allow adequate appellate review.
- 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.
- When fashioning a proportionate minimum sentence that exceeds the guidelines recommendation, the 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.
- The trial court may justify the proportionality of a departure by anchoring it in the sentencing guidelines, comparing the specific facts of a defendant‘s case against the sentences recommended in the sentencing grid for other offenders who committed the same crime. The court should explain why the substantial and compelling reasons supporting the departure are similar to the characteristics or conduct that would produce a minimum sentence for another offender that is within the guidelines range for that offender and that is of the same length as the sentence imposed on the defendant following the departure.
- While departures from the guidelines recommendation cannot be assessed with mathematical precision, the trial court must comply reasonably with its obligations under the guidelines in order to further the legislative goal of sentencing uniformity.
- The trial court in this case did not abuse its discretion by concluding that the long period of abuse and the defendant‘s threat to retaliate by evicting the victim and her family were substantial and compelling reasons justifying a departure. While a gynecological examination is a commonplace repercussion of criminal sexual conduct and would not generally represent such a wide deviation from the norm that a court could premise a departure on it, under the unique circumstances of this case, the trial did not abuse its discretion by concluding that the examination provided a substantial and compelling reason for a departure.
- The trial court, however, gave no explanation for the extent of the departure independent of the reasons it gave to depart; thus, the court offered no justification to support the large departure in this case and failed to justify why the departure was a proportionate one.
Justice MARKMAN, concurring, wrote separately to make two points. First, the propositions in Justice CORRIGAN‘s dissent, if accepted, would permit a sentencing court to impose a departure
Sentences vacated; case remanded for resentencing.
Justice WEAVER, dissenting, would affirm the judgment of the Court of Appeals for the reasons stated in that court‘s opinion. In affirming the trial court, the Court of Appeals concluded that the reasons given for the departure were objective and verifiable, that the trial court did not abuse its discretion in determining that those reasons were substantial and compelling, and that the sentences imposed were proportionate to the seriousness of the crimes.
Justice CORRIGAN, dissenting, would affirm the defendant‘s sentences because the sentencing judge met the requirement of articulating his reasons for departure and because the majority, by requiring a sentencing judge to justify the proportionality of a departure sentence by anchoring it in the sentencing guidelines and by effectively requiring sentencing courts to compare a defendant‘s conduct and criminal history to other defendants’ conduct and criminal histories, poses an overly burdensome and difficult task on sentencing courts that is outside the scheme the Legislature enacted for departures from the sentencing guidelines.
SENTENCES — SENTENCING GUIDELINES — DEPARTURES FROM SENTENCING GUIDELINES RECOMMENDATIONS — ARTICULATION OF REASONS FOR SENTENCING GUIDELINES DEPARTURES — APPELLATE REVIEW OF SENTENCES.
A trial court must articulate the rationale for any departure it makes from the minimum sentence range recommended under the sentencing guidelines; a court reviewing a departure may not substitute its own reasons for departure, nor may it speculate about conceivable reasons for departure that the trial court did not articulate or that cannot reasonably be inferred from what the court articulated (
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney,
State Appellate Defender (by Jacqueline J. McCann) for the defendant.
OPINION OF THE COURT
KELLY, J. 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 life 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).1 The recommended minimum sentence range under the sentencing guidelines was 9 to 15 years’ imprisonment. The prosecutor requested that the trial judge sentence defendant to a minimum sentence at the high end of the guidelines with a “very, very lengthy tail.”2
The judge went further than requested. He imposed a minimum sentence for each conviction that exceeded the guidelines recommendation, explaining:
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 type 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
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,3 (2) the period over which the abuse occurred, (3) the defendant‘s threat to evict the victim and her family if she told anyone about his conduct, and (4) the gynecological examination the victim was forced to undergo. The judge sentenced defendant to three concurrent terms of 30 to 50 years’ imprisonment, with credit for 23 days served. The minimum term of 30 years’ imprisonment is twice the highest minimum term defendant could have received had the judge sentenced him within the guidelines recommendation.
Defendant applied for leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other peremptory action.8
THE TRIAL COURT‘S INITIAL BURDEN TO ARTICULATE SUBSTANTIAL AND COMPELLING REASONS FOR DEPARTURE
Under
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.”13
On appeal, courts review the reasons given for a departure for clear error.14 The conclusion that a reason is objective and verifiable is reviewed as a matter of law.15 Whether the reasons given are substantial and compelling enough to justify the departure is reviewed for an abuse of discretion, as is the amount of the departure.16 A trial court abuses its discretion if the minimum sentence imposed falls outside the range of principled outcomes.”17
Under
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.21
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.”22 However, the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.
A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in*
We have stressed that this statutory language requires the trial court to “justify the particular departure in a case, i.e., ‘that departure.’ ”23
Appellate courts are obliged to review the trial court‘s determination that a substantial and compelling reason exists for departure.24 Accordingly, the trial court‘s justification “must be sufficient to allow for effective appellate review.”25 In Babcock, this Court explained that an appellate court cannot conclude that a particular substantial and compelling reason for departure existed when the trial court failed to articulate that reason.26 Similarly, if it is unclear why the trial court made a particular departure, an appellate court cannot substitute its own judgment about why the departure was justified. A sentence cannot be upheld when the connection between the reasons given for departure and the extent of the departure is unclear. When departing, the trial court must explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been.
The “principle of proportionality... defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed.”27 Hence, to complete our analysis of whether the trial judge in this case articulated substantial and compelling reasons for the departure, we must, of
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....”31 The departure from the guidelines recommendation must “contribute to a more proportionate criminal sentence than is available within the guidelines range.”32
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.33 The minimum sentence ranges for class A offenses (in months) are contained in the following grid:34
Prior Record Variable Level
(Total PRV Points)
| Offense Variable Level (Total OV Points) | A 0 points | B 1-9 points | C 10-24 points | D 25-49 points | E 50-74 points | F 75+ points |
| I 0-19 points | 21-35 | 27-45 | 42-70 | 51-85 | 81-135 | 108-180 |
| II 20-39 points | 27-45 | 42-70 | 51-85 | 81-135 | 108-180 | 126-210 |
| III 40-59 points | 42-70 | 51-85 | 81-135 | 108-180 | 126-210 | 135-225 |
| IV 60-79 points | 51-85 | 81-135 | 108-180 | 126-210 | 135-225 | 171-285 |
| V 80-99 points | 81-135 | 108-180 | 126-210 | 135-225 | 171-285 | 225-375 or life |
| VI 100+ points | 108-180 | 126-210 | 135-225 | 171-285 | 225-375 or life | 270-450 or life |
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.35 The trial judge assessed 10 points for OV 10 (exploitation of a vulnerable victim) and 50 points for OV 11 (criminal sexual penetration), resulting in a total OV score of 60 points.36 This corresponds to an OV level IV. Defendant‘s recommended minimum sentence range of 108 to 180 months is found by locating the intersection of PRV level C and OV level IV on the sentencing grid for class A felonies.37
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.38 These cells provide the highest possible minimum sentences for class A felonies. For defendant‘s sentence to fall within the guidelines recommendation for the E-VI, F-V, or F-VI cell, the judge would have had to assess 20 to 40 additional OV points and 30 to 45 additional PRV points. On this record, it is hard to understand what factors would justify the extent of the departure made. That difficulty is compounded by the fact that the trial judge offered no justification why this departure was a proportionate one.
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.40 If a defendant has a low PRV score but an OV score over 100, the court may render a proportionate sentence above the highest minimum for someone with a similar PRV score. This is
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.’ ”41
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
to reach a proportionate sentence. Accordingly, the sentencing grids provide an objective source of data on sentencing. The statutory guidelines, and the judicial guidelines that preceded them, were designed to avoid individual and regional variation in sentencing. Hence, using the grid as a reference point to assess and anchor a departure is an exercise well-designed to promote uniformity.
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.43 Nor are any precise words necessary for them to justify a particular departure.44
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 failed 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
a point that was made in Babcock. It is that, under
The Legislature adopted the guidelines to promote uniform sentencing across the state.46 The general rule is that minimum sentences must be within the recommended guidelines range.47 A defendant is entitled to be sentenced within that range unless the judge provides a substantial and compelling reason why a departure sentence is more proportionate to the offense and the offender. The judge must explain why a sentence outside the range better promotes uniform sentencing, in accordance with the purpose of the guidelines.
Justice CORRIGAN relies on
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
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.51
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.52 There the Court addressed whether an appellate court reviewing a substantial variance from the federal sentencing guidelines could require that the departure be justified by “extraordinary circumstances.”53 The Gall Court
Much of the Gall Court‘s analysis is inapplicable to Michigan‘s indeterminate sentencing guidelines. The federal sentencing guidelines are not mandatory.57 By contrast, a sentence in Michigan must be within the guidelines recommendation unless the court states on the record one or more substantial and compelling reasons to depart from it.58 Substantial and compelling reasons for departure exist only in exceptional cases.59 And when a trial court renders a departure sentence, Michigan appellate courts must review whether the court abused its discretion in concluding that extraordinary circumstances justified it.
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.60 Accordingly, it is appropriate for courts to articulate the
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.61
Justice CORRIGAN suggests that our analysis resembles de novo review.62 Her assertion is unexplained and misguided. We continue to review for an abuse of discretion. We weigh whether the reasons that the trial court gave are substantial and compelling enough to justify the departure sentence imposed. In this case, the judge abused his discretion because he imposed a departure sentence without adequately justifying the extent of the departure. Therefore, the sentence falls outside the range of principled outcomes.
The analysis set forth in this opinion is consistent with
SUMMARY
In order to assist trial courts in fulfilling their statutory obligations, we offer the following summary:
The trial court bears the burden of articulating the rationale for the departure it made. A reviewing court may not substitute its own reasons for departure. Nor may it speculate about conceivable reasons for departure that the trial court did not articulate or that cannot reasonably be inferred from what the trial court articulated. - 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.
- The trial court‘s articulation of reasons for the departure must be sufficient to allow adequate appellate review.
- 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.
- 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.
- 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.
Departures from the guidelines recommendation cannot be assessed with mathematical precision. The trial court must comply reasonably with its obligations under the guidelines, as set forth in this opinion, to further the legislative goal of sentencing uniformity.
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.
TAYLOR, C.J., and CAVANAGH, YOUNG, and MARKMAN, JJ., concurred with KELLY, J.
MARKMAN, J. (concurring). 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 “state[] 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.2
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.4 Defendants sentenced within the guidelines range would be subject to the standards of proportionality and uniformity, while defendants sentenced outside this range would be restored to a pre-guidelines environment in which individual judges could impose widely disparate sentences without mean-
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.
WEAVER, J. (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 be 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
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-
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.
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.]
CORRIGAN, J. (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).2 But despite its permissive lan-
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 proximate judges.” Ante at 324-325. Rather, such comparisons have the potential to increase disparities in local sentencing practices, contrary to Justice MARKMAN‘s stated goal of statewide consistency in guidelines sentencing. Thus, Justice MARKMAN‘s position that judges should compare similar cases before imposing a sentence outside the guidelines range, which would likely lead to inconsistent sentencing practices in regions throughout the state, is inconsistent with his position that courts should ensure uniform sentences.
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,
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.4
The majority‘s current decision is inconsistent with
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) .]
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
This case exemplifies the majority‘s mistake in requiring trial courts to offer burdensome articulations of their sentencing decisions mandated neither by
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 services9 as a “mom away from home” in a “healthy,” “experienced, loving, clean environment.” Defendant‘s wife cared for the child in her home intermittently. The child and her younger sister later began staying with defendant and his wife (the Smiths) for long stretches, including over whole summers. The Smiths also took in the children for nine months when their mother was living in a halfway house.
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.10 The Smiths testified that they began to think of the child as their own. Defendant, whom she sometimes called “daddy,” was the only consistent male role model in her life.
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
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
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 38; 128 S Ct 586; 169 L Ed 2d 445 (2007). Although the federal sentencing guidelines differ from the Michigan scheme and are no longer mandatory, 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, 551 US 338, 357-358; 127 S Ct 2456, 2469; 168 L Ed 2d 203 (2007)]. Moreover, “[d]istrict 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 51-52; 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 47; 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 49; 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 50; 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
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 51; 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.
Notes
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.