People v. Anderson

Decision Date23 October 2012
Docket NumberDocket No. 301701.
Citation825 N.W.2d 678,298 Mich.App. 178
PartiesPEOPLE v. MICHAEL ANDERSON.
CourtCourt of Appeal of Michigan — District of US

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, Peter J. Hollenbeck, Prosecuting Attorney, and Elizabeth M. Rivard, Assistant Attorney General, for the people.

State Appellate Defender (by Douglas W. Baker), for defendant.

Before: FITZGERALD, P.J., and METER and BOONSTRA, JJ.

PER CURIAM.

A jury convicted defendant of burning a dwelling, MCL 750. 72, and acquitted him of two counts of attempted murder, MCL 750.91, for setting fire to his parent's 1 home while they slept inside. The trial court sentenced defendant to a prison term of 10 to 20 years. Defendant appeals as of right, raising issues related only to his sentencing. We affirm.

I. PRIOR RECORD VARIABLE

Defendant argues that the trial court erred by assessing 10 points for prior record variable (PRV) 6, MCL 777.56. He contends that zero points should have been assessed for PRV 6. We disagree.

This Court reviews a trial court's scoring decision under the sentencing guidelines to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v. Steele, 283 Mich.App. 472, 490, 769 N.W.2d 256 (2009) (quotation marks and citation omitted). “Scoring decisions for which there is any evidence in support will be upheld.” People v. Endres, 269 Mich.App. 414, 417, 711 N.W.2d 398 (2006). “To the extent that a scoring challenge involves a question of statutory interpretation, this Court reviews the issue de novo.” People v. Johnson, 293 Mich.App. 79, 84, 808 N.W.2d 815 (2011).

“PRV 6 considers an offender's relationship to the criminal justice system.” Id. The trial court is to assess 10 points against the defendant if, at the time of the sentencing offense, the offender is “on parole, probation, or delayed sentence status....” MCL 777.56(1)(c). Zero points are to be assessed if the offender has no relationship to the criminal justice system. MCL 777.56(1)(e).

Defendant acknowledges that he was on probation at the time of the sentencing offense. He asserts, however, that he was on probation for a juvenile offense and that, because juvenile matters are not criminal in nature, he did not have a relationship to the criminal justice system. Defendant notes that proceedings involving juvenile offenders [e]xcept as otherwise provided 2 ... are not criminal proceedings,” MCL 712A.1(2), and that juveniledelinquency proceedings are not adversarial or criminal in nature, In re Wilson, 113 Mich.App. 113, 121, 317 N.W.2d 309 (1982). However, [a] juvenile adjudication clearly constitutes criminal activity because ‘it amounts to a violation of a criminal statute, even though that violation is not resolved in a “criminal proceeding.” People v. Harverson, 291 Mich.App. 171, 180, 804 N.W.2d 757 (2010), quoting People v. Luckett, 485 Mich. 1076, 1076–1077, 777 N.W.2d 163 (2010) (Young, J., concurring). As this Court has noted, juvenile proceedings “are closely analogous to the adversary criminal process.” In re Carey, 241 Mich.App. 222, 227, 615 N.W.2d 742 (2000).

The phrase “criminal justice system” is not limited to adversarial criminal proceedings. Courts presume that the Legislature intended the plain meaning of the words it expressed. People v. Gardner, 482 Mich. 41, 50, 753 N.W.2d 78 (2008). Black's Law Dictionary (9th ed.) defines “criminal-justice system” as

[t]he collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The system typically has three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers) and corrections (prison officials, probation officers, and parole officers). [Emphasis added.]

A juvenile can be placed on probation. MCL 712A.18(1)(b). A juvenile can also be incarcerated for violating probation. MCL 771.7; MCL 712A.18i(9); MCL 712A.18i(10)(f). Juveniles on probation are involved with the corrections aspect of the criminal justice system. This Court has refused to “categorize a defendant as having no relationship with the criminal justice system when it is obvious that such a relationship exists.” Johnson, 293 Mich.App. at 88, 808 N.W.2d 815. Accordingly, defendant's prior juvenile adjudications supported the trial court's scoring of this variable.

II. DEPARTURE FROM THE SENTENCING GUIDELINES

Alternatively, defendant argues that the trial court failed to articulate substantial and compelling reasons to exceed the recommended guidelines range for his minimum sentence.

Under the legislative sentencing guidelines, defendant's recommended minimum sentence range as a second-offense habitual offender was 57 to 95 months. However, it is well established that [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, 754 N.W.2d 284 (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, 755 N.W.2d 212 (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, 754 N.W.2d 284. 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 disproportionateweight.’ Id. at 300, 754 N.W.2d 284, 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, 754 N.W.2d 284. Thus, “the trial court ... must justify on the record both the departure and the extent of the departure.” Id. at 313, 754 N.W.2d 284.

If the trial court departs from the sentencing guidelines, this Court reviews for clear error whether a particular factor articulated by the trial court exists. People v. Babcock, 469 Mich. 247, 264, 666 N.W.2d 231 (2003). A trial court's determination that a factor is objective and verifiable presents a question of law that this Court reviews de novo. People v. Uphaus (On Remand), 278 Mich.App. 174, 178, 748 N.W.2d 899 (2008). This Court reviews for an abuse of discretion the trial court's conclusion that the factors provide substantial and compelling reasons to depart from the guidelines. Babcock, 469 Mich. at 264–265, 666 N.W.2d 231. The trial court abuses its discretion when its result lies outside the range of principled outcomes. Id. at 269, 666 N.W.2d 231;Smith, 482 Mich. at 300, 754 N.W.2d 284.

In this case, the trial court articulated six primary reasons for its upward departure. The trial court found that defendant “deliberated this crime” and gave it “a great deal of thought” and that “the premeditated nature of that alone is not adequately considered by the guidelines.” The court found that defendant meant to terrorize his parents and that this fact was not adequately considered by the guidelines. The court further stated that defendant had numerous opportunities to do something about his parents' safety, but that seemed to have been “a second thought in [his] mind.” The court also found that offense variable (OV) 3, MCL 777.33 (physical injury to victim), did not adequately account for the severity of the prolonged nature of the pain from the burns the victims suffered. The court further found that the victims' psychological injuries exceeded the scope of OV 4, MCL 777.34 (psychological injury to victim), because the victims were defendant's parents. Finally, the court noted reports from counselors regarding defendant's ‘pervasive pattern of disregard for and violation of the rights of others and failure to conform to social norms' along with his escalating aggression against his parents and concluded that his parents and the public deserved to be protected from him. The trial court based its reasons for departure on the facts elicited at trial as well as the facts contained in the presentence investigation report (PSIR). A trial court's reason for departure is objective and verifiable when it relies on the PSIR or testimony on the record. See People v. Gonzalez, 256 Mich.App. 212, 228–229, 663 N.W.2d 499 (2003). Defendant argues, however, that the legislative sentencing guidelines already took into account the trial court's reasons for departure.

A. PLANNING AND DELIBERATION

The trial court's first basis for departure was its finding that the guidelines did not account for the fact that defendant planned and deliberated the crime. Defendant argues that planning is part of committing arson and therefore cannot be a substantial and compelling factor. We disagree. Defendant joked with his friends earlier in the day about “taking his grandfather out.” Defendant attempted to get a friend to assist him in burning down the house. Defendant walked to the garage, obtained gasoline, and placed it in and around the house. An accelerant was also found underneath the bedroom windows. Defendant admitted his actions and explained that he was angry with his parents.

The prosecution and defendant both attempt to characterize defendant's attempt to get help after starting the fire...

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    ...occurrences external to the minds of those involved in the decision, and must be capable of being confirmed.' " People v. Anderson, 298 Mich.App. 178, 183, 825 N.W.2d 678 (2012), quoting Horn, 279 Mich.App. at 43 n. 6, 755 N.W.2d 212. The reason or reasons given justifying the departure "mu......
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