Exceeding the sentencing guidelines; objective and verifiable factors

In People v Anderson, __ Mich App __ (#301701, 10/23/2012) the Court of Appeals upheld the upwards departure on the basis of substantial and compelling reasons that were objective and verifiable.

A court may depart from the appropriate sentence range . . . 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). In order to be substantial and compelling, the reasons on which the trial court relied “must be objective and verifiable.” People v Smith, 482 Mich 292, 299 (2008). “To be objective and verifiable, a reason must be based on actions or occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.” People v Horn, 279 Mich App 31, 43 n 6 (2008). The reasons for departure must also “be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention.” Smith, 482 Mich at 299. However, “[t]he 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 . . . that the characteristic has been given inadequate or disproportionate weight.’” Id. at 300, quoting MCL 769.34(3)(b). Moreover, “the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.” Smith, 482 Mich at 303 (emphasis in original). Thus, “the trial court . . . must justify on the record both the departure and the extent of the departure.” Id. at 313 (emphasis in original).

In Anderson the trial court’s upward departure was supported by other objective and verifiable factors that keenly grabbed the court’s attention, including the planning defendant engaged in, the extreme nature of the victims’ injuries, the victims’ unusual level of psychological trauma, defendant’s pattern of escalating violence toward the victims, and defendant’s inability to benefit from counseling. The trial court stated that it thought any one of the reasons it articulated justified an upward departure. Given the court’s comments, the Court of Appeals was satisfied that the court would have departed to the same degree on the basis of the valid reasons alone.

The existence of the victims’ unusually severe burn injuries was objective and verifiable, and the trial court did not abuse its discretion when it determined that the severity of those injuries was a substantial and compelling reason in support of its sentencing departure.

Although OV 4 accounts for psychological injuries suffered by victims, it does not adequately consider the ways in which an offense affects familial relationships, see People v Armstrong, 247 Mich App 423, 425-426 (2001), nor does it always account for the unique psychological injuries suffered by individual victims. See Smith, 482 Mich at 302.  Under the circumstances of this case, the trial court did not err in finding that the guidelines did not adequately account for the psychological injuries suffered by the victims. Consequently, this was a substantial and compelling reason to depart upward from the guidelines.

The trial court’s sixth basis for departing from the guidelines was that defendant had a propensity to re-offend and was therefore a threat to public safety. A court’s opinion or speculation about a defendant’s future dangerousness is not objective or verifiable. People v Cline, 276 Mich App 634, 651 (2007). But the trial court may base a sentencing departure on a defendant’s future dangerousness if objective and verifiable facts support the court’s conclusion, such as the defendant’s past failures to rehabilitate or demonstrated obsessive or uncontrollable urges to commit certain offenses. Horn, 279 Mich App at 45. Recurring and escalating acts of violence are objective and verifiable because they are external occurrences that can be confirmed. Id. at 46.  In this case, the trial court based its conclusions on objective and verifiable facts. The court noted that defendant had been “diagnosed with symptoms of oppositional defiant disorder” and had not benefitted from the various forms of counseling he had received from a young age. Defendant had threatened, stolen from, and damaged the property of his parents on “numerous occasions.” The trial court determined that defendant’s “escalation of violence” toward his parents was not adequately addressed by the sentencing guidelines. The trial court did not simply state that it thought defendant had a propensity to re-offend—it supported its conclusion with objective, verifiable, external determinations.

CSC 1st requires lifetime monitoring unless defendant is sentenced to life without parole.

In People v Johnson, __ Mich App __ (#302173, 10/16/2012) the defendant was convicted of three counts of CSC I and sentenced to 17-1/2 to 40 years in prison and lifetime electronic monitoring pursuant to MCL 750.520n.  Defendant argued on appeal that he was erroneously ordered to lifetime electronic monitoring because the victim was not less than 13 years old at the time of the offenses. The Court of Appeals disagreed.

MCL 750.520b(2) provides that Criminal sexual conduct in the first degree is a felony punishable as follows: (a) Except as provided in subsections (b) and (c), by imprisonment for life or for any term of years. (b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any terms of years, but not less than 25 years. (c) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, by imprisonment for life without possibility of parole if the person was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age.  (d) In addition to any other penalty imposed under subdivision (a) or (b), the court shall sentence the defendant to lifetime electronic monitoring under section 520n.

This section requires three differing prison sentences for first-degree criminal sexual conduct, depending upon the circumstances: (1) imprisonment for life or any term of years; (2) imprisonment for life or any term of years, but not less than 25 years, if the defendant is 17 years or older and the victim is 13 or younger; or (3) imprisonment for life without the possibility of parole, if the defendant was previously convicted of a criminal sexual conduct offense or another attempted CSC offense. The subsection (d) penalty regarding lifetime monitoring is explicitly required to be imposed in addition to the penalties provided in subsections (a) and (b).

The lifetime monitoring penalty specifically does not apply when a defendant is sentenced to prison for life without parole under subsection (c).  

Accordingly, from the plain statutory language of the statute, regardless of the defendant’s and the victim’s age, MCL 750.520b(2) requires lifetime electronic monitoring for first-degree criminal sexual conduct offenses where the defendant has not been sentenced to life in prison without parole.