People v. Stammer

• Decision Date: 20 October 1989
• Docket Number: Docket No. 111458
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Lee STAMMER, Defendant-Appellant. 179 Mich.App. 432, 446 N.W.2d 312
• Court: Court of Appeal of Michigan — District of US

Page 312

446 N.W.2d 312

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Lee STAMMER, Defendant-Appellant.

Docket No. 111458.

179 Mich.App. 432, 446 N.W.2d 312

Court of Appeals of Michigan.

Submitted June 15, 1989.

Decided Aug. 9, 1989.

Released for Publication Oct. 20, 1989.

[179 MICHAPP 433] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph P. Kwiatkowski, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

Ronald W. Powers, Petoskey, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and SAWYER and GRIFFIN, JJ.

PER CURIAM.

Defendant pled guilty to third-degree criminal sexual conduct, M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4), and fourth-degree criminal sexual conduct, M.C.L. Sec. 750.520e(1)(b); M.S.A. Sec. 28.788(5)(1)(b). We affirm.

Because of numerous objections raised by defendant to the presentence report, a lengthy evidentiary[179 MICHAPP 434] hearing was conducted as part of the sentencing proceeding. Dr. James Findlay, defendant's treating psychologist, testified to his diagnosis of borderline personality disorder accompanied secondarily by symptoms of depression, anxiety, and alcohol abuse. Alcohol abuse was precipitated by trauma from an accident involving defendant that resulted in a fatality, and the effect of the alcohol was to reduce control of defendant's impulses. Defendant was not pedophilic, at least in the clinical sense, both because his child abuse was not his exclusive means of sexual gratification and because defendant's disorder was not compulsive. Dr. Findlay testified that it was "debatable" whether defendant was acting out "a drive or uncontrollable urge," but his ultimate conclusion was that defendant was not compulsive. Defendant's sexual involvement with young children was characterized in terms of isolated occurrences. In light of defendant's own history of being a victim of child sexual abuse, defendant's comprehension of his problems, and his personal remorse, Findlay believed that defendant could be successfully treated and rehabilitated by intensive psychotherapy and Alcoholics Anonymous meetings in a local, nonprison setting.

Defendant testified regarding his history of sexual abuse. He denied sexual involvement or desire with respect to a boy named Glenn and other persons in the early 1960s, but he admitted sexual involvement with a boy named Danny (Glenn's brother) in 1962, adding that he then submitted himself for psychological treatment. He married in December of 1967 and functioned sexually in a normal fashion. He denied having sexual relations on a daily basis with a person named Gerald (the victim in the CSC, fourth degree charge) during the summers of 1986 and 1987, but he admitted sexual [179 MICHAPP 435] involvement with five persons, ages ten (the victim in the CSC, third degree charge), fourteen, sixteen, eighteen, and twenty in this time period.

A police officer testified to uncorroborated statements made by other abuse victims that contradicted some of defendant's testimony. In one statement, it was alleged that defendant had sexually abused Glenn, an eight- or nine-year-old boy, in the early 1960s. The person named Gerald gave a statement alleging daily sexual relations with defendant during the last two summers. A report made in 1963 by the clinic treating defendant also indicated that defendant's perpetration of sexual abuse was more extensive than admitted in defendant's own testimony.

The trial court found that allegations in the presentence report concerning Glenn and Gerald should not be stricken, although defendant was permitted to insert his own version of the allegations.

The prosecutor made reference to a report by a limited-license psychologist employed by the Department of Corrections, in which defendant was diagnosed as pedophilic with a pessimistic outlook for successful treatment. Referring to the comments addressed by one victim's mother to the court and to the videotaped evidence of sexual acts involving defendant, the prosecutor urged that defendant was a predator who used his church involvement, his standing in the community, and his professed need to help fatherless boys in order to procure and manipulate victims into consenting to sexual involvement.

The sentencing court explicitly rejected rehabilitation as the object in structuring defendant's punishment, finding instead that the past history and involvement of three to five victims in the present recurrence of abuse rendered recidivism [179 MICHAPP 436] likely; successful treatment of defendant's condition was deemed "questionable" although "possible." Although retribution was an acknowledged factor in sentencing, the court stated that its primary concern was to protect children from the likelihood that sexual abuse would recur. In defendant's favor, the court noted that defendant had no prior record and that his need to engage in abuse stemmed from an extensive history of mistreatment and sexual abuse suffered in defendant's own childhood. Because defendant pled guilty rather than subject his victims to a criminal trial, the court decided not to impose the maximum possible sentences. Defendant was sentenced to concurrent prison terms of seven to fifteen years for third-degree CSC and one to two years for fourth-degree CSC.

Defendant argues that his sentence is excessive and that reasons given for departure from the guidelines range (twenty-four to forty-eight months for third-degree CSC, zero to nine months for fourth-degree CSC) were inadequate.

The familiar Coles standard for a purportedly excessive sentence governs our review:

The excessively severe sentence is one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it.

* * * * * *

We next hold that an appellate court shall, upon a defendant's request in an appeal by right or in an appeal by leave granted, review a trial court's exercise of discretion in sentencing, but may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court. [People v. [179 MICHAPP 437] Coles, 417 Mich. 523, 542-543, 550, 339 N.W.2d 440 (1983).]

Defendant's argument is that the court abused its discretion by not structuring a judicial response to defendant's crime that would have had, as its primary object, defendant's rehabilitation. However, rehabilitation is only one of many societal interests to be fulfilled in sentencing. People v. Girardin, 165 Mich.App. 264, 267-268, 418 N.W.2d 453 (1987), and the sentencing decision, necessarily reflecting the weighing of different interests and trade-offs of competing interests, is appropriately an ad hoc determination, given the unique circumstances of the defendant and the crime. The wide latitude of discretion afforded the sentencing court in Coles reflects this.

In this case, whether or not defendant could be rehabilitated was vigorously disputed, and it is not the function of this Court to second-guess the lower court's decision to adopt one of two competing views, both of which were well developed and supported by appropriate documentation below. Given the entirety of the circumstances of defendant's personal background and his extensive involvement in sexual abuse, the determination of the court that societal protection was a more overriding concern and the resultant sentence appear to be well within the discretion contemplated by Coles. Our conscience is not shocked. The same on-the-record reasoning complied with the procedure for the departure from the guidelines. See People v. Fleming, 428 Mich. 408, 428, 410 N.W.2d 266 (1987).

Defendant makes a two-pronged argument that his legal representation during criminal proceedings below amounted to ineffective assistance of counsel: (1) failure of his defense attorney to investigate[179 MICHAPP 438] and pursue whether defendant was criminally responsible in light of his mental condition, and (2) failure to suppress evidence seized pursuant to a search warrant. Defendant did not seek an evidentiary hearing below on whether his attorney provided effective representation and has not moved for remand in this Court in order to make an appropriate record for review.

The standards applied in Michigan for evaluating whether counsel's performance meets constitutional standards were summarized in People v. Dalessandro, 165 Mich.App. 569, 573-574, 419 N.W.2d 609 (1988), lv. den. 430 Mich. 880, 423 N.W.2d 573 (1988):

In Strickland v. Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the Supreme Court set forth the test to be used in reviewing claims of ineffective assistance of counsel. First, defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not...