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.

The judge's role in a Medical Marijuana Section 8 motion.

In People v Anderson, __ Mich App __ (#300641, 9/18/2012) the defendant was arrested after police officers discovered marijuana plants and plant material in his home in June 2009. The prosecutor charged him with manufacturing marijuana, see MCL 333.7401(1) and (2)(d)(iii), and the district court bound Anderson over for trial in March 2010. Id. at 41. In April 2010, Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. Id. at 41-42.

On remand from the Supreme Court, the Court of Appeals further remanded the case to the trial court for an evidentiary hearing under People v Kolanek, 491 Mich 382 (2012).  As set forth in Kolanek, the trial court’s role at the evidentiary hearing is limited: it must determine whether the defendant has presented sufficient evidence from which a reasonable jury could conclude that the defendant established the elements of his or her § 8 defense and then determine, given the evidence presented at the hearing, if there is a material factual dispute concerning one or more of those elements. Id. at 411-413. The trial court may not weigh the evidence, assess credibility, or resolve factual disputes at the hearing. Id. at 411 (“Questions of fact are the province of the jury, while questions of law are reserved to the courts.”). Rather, the trial court must determine—as a matter of law—if the defendant established his or her right to have the charges dismissed under § 8, or if there are material factual disputes that must be resolved by a jury. Id. at 411-413.

Appointment of a DNA expert for the defense.

In People v Webb, Unpub (#305017, 8/16/2012) the Court of Appeals reversed convictions of first-degree home invasion, safe breaking, felon in possession of a firearm, and two counts of felony-firearm. 

At trial DNA evidence was the only evidence linking defendant to the crime. Before trial, defendant requested the appointment of a DNA expert witnessed, which the trial court denied.  According to the Court of Appeals, the trial court abused its discretion in denying defendant’s request for an expert witness.

“Under the Due Process Clause, states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such rights.” People v Leonard, 224 Mich App 569, 580 (1997). MCL 775.15 provides that an indigent defendant may request that the judge, “in his discretion[,] . . . make an order that a subpoena be issued” for a material

witness favorable to defendant “without whose testimony [defendant] cannot safely proceed to a trial[.]” As reflected in this permissive language, it is a discretionary decision and “a trial court is not compelled to provide funds for the appointment of an expert on demand.” People v Tanner, 469 Mich 437, 442 (2003). “[A] defendant must show a nexus between the facts of the case and the need for an expert.” Leonard, 224 Mich App at 582. Also, “[i]t is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.” Tanner, 469 Mich at 443 (internal quotations and citation omitted).

In this case the only evidence linking defendant to the crime was the DNA evidence. Thus, there was a nexus between the facts of the case and the need for a DNA expert, Leonard, 224 Mich App at 582. Without the ability to have an independent DNA expert examine the blood samples, defendant was deprived of an opportunity to present a defense to the charged crimes. “[F]undamental fairness requires that the state not deny [indigents] an adequate opportunity to present their claims fairly within the adversary system.” Leonard, 224 Mich App at 580 (internal quotations and citation omitted). In spite of this concern for fundamental fairness, the trial court failed to articulate any reasons justifying the denial of defendant’s request for an independent DNA expert.  This was reversible error.

Mars, Inc. Lands Victory in Pension Benefits Misrepresentation Suit, Guest blog by Emily Hootkins.

August 9, 2012 | Posted by Emily Catherine Hootkins |  Alston & Bird

In a recent pension benefits misrepresentation decision, the Southern District of Ohio granted summary judgment for the defense on Plaintiff Virginia Stark’s claims for estoppel and breach of fiduciary duty. Stark v. Mars, Inc., et al., No. 2:10-cv-642, 2012 WL 2918410 (S.D. Ohio July 17, 2012).  At the time of the Court’s order, the sole Defendants in this action were Plaintiff’s former employer, Mars, Inc. (“Mars”), and the Mars Inc. U.S. Benefit Plans Committee (the “Committee”). The Court’s 40-page opinion contains a detailed recital of the precise misrepresentations at issue in this case. In short, Plaintiff was misinformed on multiple occasions on the amount of her pension benefits. Further, she was overpaid (in line with the misrepresentations) by approximately $15,000.

At the time that Plaintiff elected to begin receipt of her pension benefits, Hewitt Associates (“Hewitt”) was under contract with Mars to operate and maintain the computer database records for the Mars retirement plan involved in this lawsuit. Apparently due to a computer programming error, a web page and call center employees misinformed Plaintiff regarding the amount of her pension benefits. Once the error was discovered and Plaintiff’s benefits were properly reduced, Plaintiff brought suit alleging multiple claims, of which only estoppel and breach of fiduciary duty remained at the time of the Court’s decision.

Estoppel Claim

The Court in this case easily found that the Defendants were entitled to summary judgment on Plaintiff’s estoppel claim. First, the Court noted that “[b]ecause the Committee, not Mars, is charged with paying benefits. . . the Committee is the only proper defendant to the estoppel claims.” Id. at *7. Second, the Court found that several of the elements of estoppel were not met. Most significantly, Plaintiff lacked justifiable and detrimental reliance.

This case presents many lessons for plan sponsors and administrators. First, one of the main reasons Plaintiff’s claims failed was that the incorrect statements regarding the amount of Plaintiff’s pension benefits were consistently underscored as “estimates” and subject to various disclaimers. Thus, Plaintiff was on notice that the pension benefit figures were not guaranteed to be accurate. As a result, Plaintiff could not prove justifiable reliance. Another smart choice by Mars was to permit Plaintiff to keep the $15,307.25 overpayment. Instead of demanding repayment from Plaintiff, Mars took it upon itself to reimburse the plan for the overpayment plus interest. In doing so, Mars nearly eliminated Plaintiff’s claim of detrimental reliance because even assuming that Plaintiff increased her discretionary spending during the overpayment period (which was not proven), those increases were more than covered by the inflated pension benefits which Plaintiff was allowed to keep. Of note, Plaintiff did not incur any major debt in reliance on the erroneous pension amounts.

Breach of Fiduciary Duty Claim

Plaintiff was also unable to establish a claim for breach of fiduciary duty based on the alleged misrepresentations. Under Sixth Circuit case law, the elements for this claim are: (1) that the defendant was acting in a fiduciary capacity when it made the challenged representations; (2) that these representations constituted material misrepresentations; and (3) that the plaintiff relied on those misrepresentations to her detriment. Similar to its decision on the estoppel claims, the Court determined “the evidence is insufficient to show that plaintiff’s reliance on the representations was reasonable, particularly in light of the disclaimers.” Id. at *21. Thus, the third element for this claim was not met.  Further, Plaintiff’s breach of fiduciary duty claim failed because the misrepresentations were made by non-fiduciaries – Hewitt and employees at the call center. There was no evidence that Hewitt or any of the employees at the call center exercised the discretionary authority or control necessary for fiduciary status. The Court also determined that Mars and the Committee could not be faulted for relying on the information provided by Hewitt. There was no evidence that Hewitt had provided inaccurate information prior to this instance. Further, Mars audits ten percent of retirements on a monthly basis at random to ensure accuracy and Hewitt sent Mars audit reports. Thus, adequate steps were taken to insulate against a breach of fiduciary claim based on reliance on Hewitt.

Conclusion

This is a good opinion for plan sponsors and administrators. Plan sponsors and administrators should consider periodic auditing of retirement plan accounts in order to catch and fix any errors promptly (this will also help fend off a fiduciary breach claim). Further, disclaimers and limiting language should accompany any benefit representations. If an error is discovered, remedial measures should be promptly taken. Making some concessions to affected participants may be a wise choice to curb potential liability, for example waiving overpayments and allowing participants to suspend pension payments to resume at a later date and/or elect another form of payment.

The case is Virginia Stark v. Mars, Inc., et al., No. 2:10-cv-642, 2012 WL 2918410 (S.D. Ohio July 17, 2012).

MSC holds that impeachment evidence may be grounds for a new trial.

In People v Grissom, __ Mich __ (#140147, 7/31/2012) the Michigan Supreme Court held that impeachment evidence may be grounds for a new trial if it satisfies the four-part test set forth in People v Cress, 468 Mich 678 (2003).    In Cress, supra, the court held that a defendant must show that (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.

A material, exculpatory connection must exist between the newly discovered evidence and significantly important evidence presented at trial, but it may be of a general character and need not contradict specific testimony at trial. Also, the evidence must make a different result probable on retrial.   Not every instance will justify a new trial, but when it is established that  (1) the necessary exculpatory connection exists between the heart of the witness’s testimony at trial and the new impeachment evidence and (2) a different result is probable on retrial, a court should not refuse to grant a new trial solely on the ground that the newly discovered evidence is impeachment evidence. It should not refuse even if the new evidence is not directly contradictory to specific trial testimony.

At a motion for a new trial, the defendant is entitled to have the trial court carefully consider the newly discovered evidence in light of the evidence presented at trial. The trial court must evaluate the new evidence and determine whether there exists an exculpatory connection between it and the heart of the complainant’s testimony. With the caveat that the only facts that the trial court should consider in deciding whether to grant a new trial are those in the newly discovered evidence and those in the record.  Newly discovered impeachment evidence concerning immaterial or collateral matters cannot satisfy Cress. But if it has an exculpatory connection to testimony concerning a material matter and a different result is probable, a new trial is warranted.

MSC allows expert witness testimony regarding interrogation techniques and psychological factors claimed to generate false confessions.

In People v Kowalski, __ Mich __ (#141932, 7/30/2012) the Michigan Supreme Court indicated it would allow expert witness testimony regarding interrogation techniques and psychological factors claimed to generate false confessions under MRE 702 and MRE 403.

MRE 702 establishes prerequisites for the admission of expert witness testimony. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782, 789 (2004): If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

A court thereby evaluating proposed expert testimony must ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case.  An expert who lacks ‘knowledge’ in the field at issue cannot ‘assist the trier of fact.  Likewise, expert testimony without a credible foundation of scientific data, principles, and methodologies is unreliable and, thus, unhelpful to the trier of fact.

First, the trial court must determine whether the proposed expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue”—If the proffered testimony is not relevant or does not involve a matter that is beyond the common understanding of the average juror, the same is not allowable as opinion testimony.  If answered in the affirmative, the court must then consider the other requirements of MRE 702 before determining whether to exclude the proposed testimony.  Second, the proposed testimony is admissible under MRE 702 if it meets the other requirements of the evidentiary rule: the “witness [is] qualified as an expert by knowledge, skill, experience, training, or education,” the “testimony is based on sufficient facts or data,” the “testimony is the product of reliable principles and methods,” and the “witness has applied the principles and methods reliably to the facts of the case.” When evaluating the reliability of a scientific theory or technique, courts should consider certain factors, including but not limited to whether the theory has been or can be tested, whether it has been published and peer-reviewed, its level of general acceptance, and its rate of error if known. This analysis requires courts to ensure that “each aspect of an expert witness’s proffered testimony—including the data underlying the expert’s theories and the methodology by which the expert draws conclusions from that data—is reliable.”