STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED August 12, 2008 v No Branch Circuit Court WALTER LEE MCELVAIN, LC No FC Defendant-Appellant. Before: O Connell, P.J., and Borrello and Gleicher, JJ. PER CURIAM. Defendant appeals by leave granted from his plea-based conviction and sentence for second-degree criminal sexual conduct, MCL c(1)(a) (CSC II). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E). This case involves defendant s sexual abuse of his own son over a period of four years, when the boy was between three and seven years old. Defendant would enter the child s room, shake him awake, pull down the child s pants, and lick [the child s] private parts with his mouth. According to the victim, sometimes dad s mouth closes around it, but he doesn t bite it. Afterward, defendant would go outside and smoke a cigarette. The victim originally told his maternal grandmother about the abuse, stating that dad tickled [the child s] back, stomach and sometimes on his private parts and he doesn t like it. When the grandmother asked what the child was talking about, he told her his dad tickles his private parts and he doesn t like it, but dad says, I own you and I can do what I want. The investigating officer questioned defendant, asking whether he had ever licked his son s private parts. Defendant responded, yes, once or twice but I have been trying to stop for a couple of years now. Defendant stated that it usually went on for a couple minutes and that he had also used [his] hand a couple of times, but [drew] the line there. Defendant explained to the officer that it had been going on for a couple of years and that it usually happened in the victim s bedroom, but only on nights when everyone was gone. Defendant provided a written statement to the police, stating: I have touch [sic] my son twice w/tougn [sic] & my hand several times.... I have been trying to stop & would like to get help but do not know where to go. I know its wrong. Please help me with my problem. -1-

2 Defendant was originally charged with one count of first-degree criminal sexual conduct, MCL b(1)(a) (CSC I), in addition to the one count of CSC II. In exchange for pleading nolo contendere to the latter charge, the prosecutor agreed to dismiss the former. The trial court utilized the state police incident report in determining there was a sufficient factual basis for defendant s plea. Defendant was originally sentenced to four to 15 years imprisonment, which was a departure from the recommended minimum range of 19 to 38 months. The court subsequently granted defendant s motion for resentencing and rescored offense variables (OV) 11 and 13, although the recommended minimum range remained at 19 to 38 months. Again departing from the guidelines and reimposing a four- to fifteen-year term, the trial court stated: As the Court had determined previously and would reiterate at this point, I do not believe that the guidelines adequately address the impact upon the victim and the victim s family, particularly because of his young age and because of the prolonged history of abuse that was committed against him. As a consequence the Court feels that it really has no option but, in the same way that it did before, to exceed the guidelines. * * * There has been a lot said about truth in sentencing, and there always remains some confusion whether sentences of terms of years, such as this one, mean what the judge intends when imposing them. It was this Court s intention, Mr. McElvain, that you serve the minimum sentence when I first imposed it. It is my intention that you serve it again. On appeal, defendant argues that OV-11 and OV-13 were improperly scored and that the trial judge improperly found facts in violation of defendant s Sixth Amendment right to trial by jury. Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004); Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000). Defendant also claims the trial court should have imposed an intermediate sanction rather than a term of imprisonment. We review constitutional claims de novo. People v Harper, 479 Mich 599, 610; 739 NW2d 523 (2007). Decisions by the trial judge concerning a sentence are reviewed for an abuse of discretion. People v Babcock, 469 Mich 247, ; 666 NW2d 231 (2003). OV-11, MCL , involves scoring for sexual penetration. The statute requires scoring for all sexual penetrations of the victim by the offender arising out of the sentencing offense. In People v Johnson, 474 Mich 96, 102; 712 NW2d 703 (2006), our Supreme Court held that the straightforward language of the statute permitted scoring of points only for sexual penetrations arising out of the sentencing offense. Here, the sentencing offense was CSC-II and there were no penetrations arising from that offense. Thus, the trial court erred in scoring 25 points for OV-11. OV-13, MCL , involves scoring for a continuing pattern of criminal behavior. Here, defendant admitted to police investigators that he committed two acts of fellatio and several acts of unlawful touching of the victim between 2001 and The victim told investigators that defendant had molested him 26 times. We conclude that OV-13 was properly -2-

3 scored at 25 points because the evidence showed there were three or more crimes against the victim between 2001 and The rescoring of OV-11 results in a reduced guidelines recommended range of 12 to 24 months. Generally, when a defendant s sentence is predicated upon an inaccurate calculation of the guidelines range, the defendant is entitled to resentencing. Johnson, supra at 103; People v Francisco, 474 Mich 82, 89-90; 711 NW2d 44 (2006). But resentencing is not required if the trial court made clear that it would have departed upward to the same extent if the guidelines had been properly scored. People v Lathrop, 480 Mich 1036, 1036; 743 NW2d 565 (2008). See also People v Mutchie, 468 Mich 50, 52; 658 NW2d 154 (2003). In this case, the trial court clearly indicated its intention to depart from the guidelines and impose a four-year minimum sentence regardless of the actual minimum range recommended by the guidelines. Accordingly, resentencing is not required simply on the basis that the guidelines were misscored. We reject defendant s claim that the trial court engaged in improper fact finding in violation of his Sixth Amendment rights. Under Michigan s indeterminate sentencing scheme, the Sixth Amendment is not implicated when the trial court finds facts in support of the defendant s minimum sentence. People v Drohan, 475 Mich 140, ; 715 NW2d 778 (2006). Moreover, in Harper, supra at 621, our Supreme Court rejected the defendant s argument regarding the proper application of MCL (4), the intermediate sanction statute. See also People v Uphaus, 480 Mich 939; 741 NW2d 21, reversing 275 Mich App 158, 162; 737 NW2d 519 (2007). Finally, defendant claims the trial court abused its discretion in departing from the sentence guidelines without giving a substantial and compelling reason for doing so. We disagree. We recognize that courts 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. MCL (3)(b). We also recognize that the fact that defendant committed multiple offenses against a young victim that resulted in psychological harm was taken into consideration under various offense variables. However, it is clear from the trial court s statements that there were certain facts that were given inadequate weight in those variables. Specifically, the age of the victim, that the perpetrator was the victim s father, and that the victim reported over 26 separate incidents of criminal sexual conduct. Although OV-13 gave points for three or more crimes, MCL (1)(b), 26 is considerably more than three, making the 25 points scored under OV-13 wholly inadequate to address the egregiousness of the behavior. See Babcock, supra at 258 n 12. Additionally, although OV-10 addresses the victim s youth, it simply provides for 10 points when the offender exploited a victim s... youth. MCL (1)(b). This is no way accounts for the fact that defendant sexually molested his own three-year-old child. Finally, in light of the fact that OV-11 must be scored at 0 based on our analysis above, none of the factors took into account the fact that penetration was involved. It was clear from the trial court s statements that it was appalled by the number of crimes defendant committed, the relationship of the defendant to the victim, and the victim s age, and determined that the sentencing guidelines did not give sufficient weight to the exploitation defendant perpetrated. -3-

4 Indeed, these facts keenly and irresistibly grab the attention and are of considerable worth in determining defendant s sentence. Babcock, supra at 257. Moreover, these reasons are objective and verifiable as the defendant s relationship with the child is uncontested and the victim s age and number of offenses defendant committed is a fact outside of the judge s mind and can be independently confirmed. See People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Additionally, we note that defendant pled no contest to CSC II as part of a plea deal that resulted in the dismissal of a CSC I count. CSC I carries a term of life, or any term of years not less than 25 years. MCL b(2)(b). Defendant is serving less than a quarter of the minimum time he could have. Indeed, he is only serving a sentence of the same duration as the abuse he inflicted. To suggest that four years is somehow excessive in light of the fact that, absent the plea, defendant was looking at a sentence somewhere between 25 years to life, is to turn a blind eye to the egregiousness of the evidence before the trial judge. 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. Babcock, supra at 268. At the prior sentencing, the prosecutor told the trial court it s clear that [defendant] also wreaked havoc on his family and that the son he molested is taking medication right now, has had mood swings, has had quite an effect on him, so I certainly would not want to minimize the nature of this offense. The trial court then heard the testimony of the victim s grandfather, who stated: [Defendant] confessed to the state police about molesting [the victim], but, yet, in the community, he tells people that he has not done this, that [the victim] has made up this story. That bothers me that he hasn t showed signs of remorse. [The victim] has been robbed of his innocence,... his self-respect by these acts performed on him at such a young age.... [Defendant] was telling his son that he owned his body and that, if [the victim] told, he would have to go to prison. That s a guilt trip laid on a six and seven, eight-year-old child that is unbelievable.... Please put [defendant] in prison for as long as you can and make his time match his crime. Given the evidence before the trial court, its statement that the guidelines did not adequately address the impact upon the victim and the victim s family, particularly because of his young age and because of the prolonged history of the abuse that was committed against him, was sufficiently substantial and compelling to justify the departure under Babcock. We cannot say that this sentencing departure fell outside the range of principled results. 1 Id. at Our position is supported by the recent holding in People v Smith, Mich ; NW2d (Docket No , decided July 31, 2008), slip op at 8, wherein our Supreme Court confirmed that sexual abuse occurring over a long period is an objective reason for departure. Although the dissent appears to agree that the repeated acts of molestation by this defendant on this victim are objective and verifiable and constitute a valid reason for a departure sentence, it (continued ) -4-

5 Affirmed. /s/ Peter D. O Connell /s/ Stephen L. Borrello ( continued) concludes that the sentence was not proportionate to the crime or to the offender. We strongly disagree. In our opinion, a minimum sentence of four years is proportionate to both this crime and this defendant. -5-

6 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED August 12, 2008 v No Branch Circuit Court WALTER LEE MCELVAIN, LC No FC Defendant-Appellant. Before: O Connell, P.J., and Borrello and Gleicher, JJ. GLEICHER, J. (concurring in part and dissenting in part). I concur with the majority s determinations that the trial court erred by scoring 25 points for offense variable (OV) 11, but properly scored 25 points for OV 13. I also concur in the majority s rejection of defendant s contention that during sentencing the trial court engaged in improper fact finding in violation of his Sixth Amendment rights. However, I respectfully disagree that the trial court appropriately departed upward from the sentencing guidelines when it resentenced defendant to a minimum term equivalent to twice that calculated under the statutory framework provided in MCL et seq. After defendant s nolo contendere plea to second-degree criminal sexual conduct, 1 the trial court sentenced him to four to 15 years imprisonment. That sentence represented a significant upward departure from the statutory guidelines range, which called for a minimum sentence of 19 to 38 months imprisonment. The trial court explained as follows its deviation from the sentence calculated under the guidelines: Indeed these always are sad, tragic cases. Circumstances like this border on the incomprehensible. I suppose, as has been indicated by [defense counsel], the one saving grace is that [the victim] was not put through the ordeal of trial, and certainly the Court takes that into consider [sic]. I, in this particular case, long ago quit imagining that the sentences that I impose are going to deter others. Maybe that may sometime occur. What I m more concerned with are the facts of this case hoping that [the victim] can 1 MCL c(1)(a). -1-

7 overcome the abuse that was inflicted upon him, hoping that for you, Mr. McElvain, such things never would happen again, that people would not be in fear of their children if they were anywhere near you, but also the Court s obligation is to meed [sic] out an appropriate punishment, not withstanding the recommendation in this case which the Court understands very well. Quite frankly the options I see are far more limited. What the Court is going to do is to sentence you to the Michigan Department of Corrections for a minimum term of four years and a maximum term of fifteen years with credit, I believe of one day that was served.... The Court had taken into consideration all of the kind letters that were written on your behalf. At the same time, I feel that the sentence that I have imposed under all of the circumstances is the most appropriate. Defendant sought resentencing in the trial court, challenging the length of his sentence and the scoring of several offense variables. The trial court resentenced defendant to the same term of imprisonment it had originally imposed, articulating as follows its reason for departing from the guidelines: I do not believe that the guidelines adequately address the impact upon the victim and the victim s family, particularly because of his young age and because of the prolonged history of the abuse that was committed against him. As a consequence the Court feels that it really has no option but, in the same way that it did before, to exceed the guidelines. [2] Our Legislature has limited a trial court s ability to deviate from the sentencing guidelines by enacting MCL (3)(b), which provides, 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. In People v Babcock, 469 Mich 247, ; 666 NW2d 231 (2003), our Supreme Court construed MCL (3)(b) as allowing a sentencing court to depart from the recommended sentence range only if a substantial and compelling reason exists for doing so. The substantial and compelling reason justifying departure must be objective and verifiable, meaning that it is external to the minds of the trial court, the defendant, and others involved in making the decision, and is capable of being confirmed. People v Kahley, 277 Mich App 182, 186; 744 NW2d 194 (2007). To qualify as substantial and compelling, the reason also must keenly or irresistibly grab a court s attention, and be of considerable worth in deciding the length of a sentence. Babcock, supra at 257. Substantial and compelling reasons for departing from the 2 The trial court did not prepare a departure evaluation form after either the initial sentencing or the resentencing hearing. -2-

8 statutory guidelines exist only in exceptional cases. Id. [W]hether the factor is objective and verifiable is a question of law that this Court reviews de novo. People v Young, 276 Mich App 446, 448; 740 NW2d 347 (2007). In determining whether a sufficient basis exists to justify a departure, the principle of proportionality... defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed. Babcock, supra at 262. This principle requires that the minimum sentence imposed be proportionate to the defendant s conduct and prior criminal history. People v Smith, Mich ; NW2d (Docket No , decided July 31, 2008), slip op at 7. [E]verything else being equal, the more egregious the offense, and the more recidivist the criminal, the greater the punishment. Babcock, supra at 263. A trial court s departure from the sentencing guidelines must contribute to a more proportionate criminal sentence than is available within the guidelines range. Id. at 264. A trial court must articulate both the reasons for a departure and its justification for the particular departure made. Smith, supra at 11. [I]f 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. Id. at 12. In Young, supra, this Court reviewed a trial court s downward departure based on the defendant s possession of a very small, not overwhelmingly large, or sharp or obviously more dangerous or serious knife, as well as other stated reasons. 3 Id. at 450. We explained as a threshold matter that before considering whether a stated fact constitutes a substantial and compelling reason to depart from the minimum sentence range, a trial court must first examine whether the fact employed was given inadequate or disproportionate weight under the sentencing guidelines. Id. at We further observed that [b]ecause the requirements of MCL (3)(b) are stated in terms of the weight accorded a particular offense or offender characteristic under the sentencing guidelines, before a trial court can determine whether that characteristic was given inadequate or disproportionate weight, the trial court must determine how that characteristic affected the defendant s minimum sentence range. Thus, in order to find that the use of the knife was given inadequate or disproportionate weight, the trial court first had to determine how many points were scored under the guidelines for defendant s use of a knife and then determine what effect, if any, those points had on the recommended minimum sentence range. [Id. at 451.] According to the trial court, the guidelines in this case failed to adequately take into account the impact of defendant s crime on (1) the victim, due to his young age, (2) the victim, because of the prolonged history of the abuse that was committed against him, and (3) the victim s family. The trial court did not articulate any additional facts warranting an upward 3 The trial court also identified as factors supporting its downward departure the facts that the defendant was 22 years old, his lack of a previous criminal record, his history of continuous employment, and his cooperation with law enforcement. Id. at

9 departure, despite having two opportunities to do so, i.e., the original sentencing hearing and the resentencing hearing. Nor did the trial court offer any factually specific explanation for its conclusion that the guidelines afforded inadequate weight to the impact of defendant s crime. 4 Application of the analytical process described in Babcock, Smith and Young reveals that the trial court erred by enhancing defendant s sentence based on facts not in the record or lacking objective verification, and by failing to articulate any justification for the extent of the particular departure it imposed, independent of the reasons providing the basis for the departure. Offense variable 4 addresses the degree of psychological injury to a victim. MCL (1). Ten points may be scored if the [victim s] serious psychological injury may require professional treatment. MCL (2). The trial court scored 10 points for this offense variable, and this scoring embodied a determination that the victim had sustained serious psychological injury. According to the majority, the victim s grandfather s testimony at the first sentencing hearing supports the trial court s determination that the guidelines did not adequately address the impact upon the victim and the victim s family. However, the record reflects that the grandfather criticized defendant for lacking remorse and expressed concerns about the victim s loss of innocence and self-respect. These opinions qualify as entirely subjective, and provide the trial court with no factual or verifiable information that could support a finding that the victim had sustained a more serious psychological injury than the maximum score under OV 4 could take into account. Furthermore, at the resentencing hearing, the grandfather reported that the victim had undergone a lot of counseling, and that when I ve been in his presence, with his mother, he s acted much better because of the medication and the counseling. The presentence investigation report similarly reflects that the victim was doing better in his grandparents custody and had no academic or school problems. Given these facts, I am unable to discern an objective and verifiable rationale for concluding that the maximum score under OV 4 inadequately addressed the victim s psychological injuries. The trial court offered no explanation or analysis regarding the inadequacy of OV 4 s scoring mechanism under the circumstances presented in this case. Offense variable 10 addresses a defendant s exploitation of a vulnerable victim. MCL (1). If [t]he offender exploited a victim s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status, MCL (1)(b) instructs the sentencing court to assess a maximum of 10 points under OV 10. Here, the trial court imposed 10 points because the victim was defendant s young son. The majority observes that although OV 10 addresses the victim s youth, [t]his in no way accounts for the fact that defendant sexually molested his own three-year-old child. That defendant s abuses of his own young child were abhorrent cannot be debated. A sentencing review, however, should not involve an appellate judge s emotional reaction to the nature of the crime, 4 The trial court record includes no sworn testimony whatsoever. The trial court relied on a state police report to establish the factual basis for defendant s nolo contendere plea. The police report includes a description of defendant s sexual abuse of the victim as reported by the then eight-year-old child, who recounted events that occurred when he was between ages three and seven. -4-

10 but must remain focused on whether the reasons cited by the trial court for its upward departure were predicated on actions or occurrences that are external to the minds of the judge, defendant, and others involved in making the decision, and must be capable of being confirmed. People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Here, the trial court premised its departure on the impact upon the victim and the victim s family, but failed to articulate how or why OV 10 inadequately addressed the circumstances of defendant s crime. In my view, despite the victim s young age, the objective and verifiable facts of record do not support the majority s conclusion that OV 10 was inadequately weighted. Smith, supra at n 21. The prolonged nature of a defendant s criminal activity is addressed in OV 13, which permits a trial court to score 25 points when an offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person. MCL (1)(b). The trial court scored 25 points because defendant committed the abuse over the course of several years. That sexual abuse occurred over a long period is an objective reason for departure. Smith, supra at 8. According to the majority, the victim s report of more than 26 incidents of sexual abuse renders the 25 points scored under this offense variable wholly inadequate to address the egregiousness of the behavior. Once again, however, the majority has substituted its own judgment regarding objective and verifiable reasons supporting a sentencing departure for those enunciated by the trial court. Despite the trial court s two opportunities to explain the reasons for its upward departure, it offered no reasons at the first hearing, and focused entirely on the impact upon the victim and the victim s family at the resentencing. Along with the majority, I can imagine reasons or facts that might connect multiple incidents of abuse over a long period and an impact on the victim. However, nothing generated by my imagination or that of the majority amounts to an objective and verifiable reason for the trial court s departure in this case. 5 Furthermore, even assuming that the trial court actually meant to disassociate the prolonged nature of the abuse and an impact on the victim, it failed to articulate reasons in support of the sentencing departure it imposed. Defendant had a prior record variable (PRV) score of zero, and his total OV score of 70 placed him within a minimum sentence range of 19 to 38 months imprisonment. 6 The trial court s minimum sentence of four to 15 years imprisonment corresponds to offenders with PRV scores over 25 points and OV scores exceeding those calculated for defendant. 7 The prolonged nature of the offense may supply an appropriate basis for the departure. But the trial court failed to articulate why the prolonged nature of the offense justified a substantial departure that punished defendant to a degree 5 I am also unconvinced that the number of crimes defendant committed is capable of being confirmed, given the victim s young age and the discrepancies between his account and that of defendant. 6 His new range, with properly scored guidelines, is 12 to 24 months. 7 According to the applicable sentencing grid, an offender with a PRV between 25 and 49 points (Level D) and an OV score of 75 or more points (Level VI) would merit a minimum sentence comparable to defendant s, between 50 and 100 months. -5-

11 applicable to an offender with the same OV score and a lengthy history of felony convictions, or an offender with the same PRV score and the maximum possible OV score. 8 Psychological injury to a victim s family appears in the statutory offense variables at OV 5, which provides that 15 points may be scored if the serious psychological injury to the victim s family may require professional treatment, even though the fact that treatment has not been sought is not conclusive. MCL (2). Inexplicably, the trial court did not assess 15 points under OV 5, despite concluding at the resentencing hearing that defendant s crime had a serious or profound effect on the victim s family. The victim s grandfather offered no information regarding any impact on other family members. As described in Young, supra, the zero scoring of OV 5 eliminates the trial court s ability to employ impact on the victim s family as a reason to increase defendant s sentence, because the guidelines adequately accounted for this form of injury. Id. at I simply find no objective, verifiable information in the record supporting the trial court s decision to deviate from the guidelines for any of the reasons it actually articulated. The sentencing judge may depart from the guidelines range, but he must articulate the basis for doing so, and he must explain why an alternative sentence better comports with the aims of the law, in particular the law s pursuit of proportionate and uniform criminal sentences. Smith, supra, concurring opinion by Markman, J., slip op at 4 (emphasis in original). Contrary to this Court s guidance in Young, the trial court utterly failed to articulate the threshold finding that any of the reasons for its departure were given inadequate or disproportionate weight under the sentencing guidelines. Young, supra at At resentencing, the trial court offered only a formulaic explanation for its departure, which entirely failed to explain how the guidelines inadequately accounted for the consequences of defendant s crime. And contrary to the Supreme Court s holdings in Babcock and Smith, the trial court failed to offer any justification for the proportionality of its sentence. In Babcock, supra at , our Supreme Court explained that we must review de novo whether a factor utilized to depart from the guidelines is objective and verifiable. In this case, defendant unquestionably engaged in repugnant criminal sexual conduct. Although some emotional reasons may exist that urge a departure from the guidelines, [a] reviewing court may not substitute its own reasons for departure, and also may not 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. Smith, supra at 28. The trial court specifically premised its departure on the impact of defendant s crime on the victim and the victim s family. However, the record does not contain objective and verifiable information supporting the existence of an impact qualifying as substantial or compelling, and the court never described any guideline inadequacy specifically applicable to this case. Further, because the majority now holds that defendant s proper minimum sentence range is 12 to 24 months, the discrepancy between the minimum guidelines range and the sentence the trial court imposed is even more disproportionate to the sentence required by the guidelines. I would remand for resentencing 8 According to the applicable grid, the legislatively selected sentence for an offender with a PRV score of zero and an OV score of 75 points or more is 29 to 57 months. -6-

12 based on properly scored guidelines and within the statutory guidelines range, absent the trial court s identification of substantial and compelling reasons for a departure and a justification for the particular departure selected. /s/ Elizabeth L. Gleicher -7-