People v. Babcock

Decision Date26 June 2002
Docket NumberDocket No. 235518.
Citation250 Mich. App. 463,648 N.W.2d 221
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerald Lee BABCOCK, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John G. McBain, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Bruce A. Barton, Jackson, for the appellee.

Before: SAWYER, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

This case is before us after previously being remanded by this Court in People v. Babcock, 244 Mich.App. 64, 624 N.W.2d 479 (2000) (Babcock I). The prosecutor appeals by leave granted the judgment of sentence entered by the trial court on remand. We affirm.

I. PROCEDURAL HISTORY

Defendant was charged with one count of first-degree criminal sexual conduct, M.C.L. § 750.520b, involving a twelve-year-old female relative. Defendant subsequently pleaded guilty to two counts of second-degree criminal sexual conduct, M.C.L. § 750.520c. Defendant was sentenced to three years' probation, with the first year to be served in jail; however, all but sixty days of defendant's jail sentence were suspended. The applicable legislative sentencing guidelines provided for a minimum sentence range of thirty-six to seventy-one months. This Court granted the prosecutor's application for leave to appeal, which challenged the sentence on the ground that the downward departure from the sentencing guidelines was error because there was a lack of substantial and compelling evidence justifying the departure.

In Babcock I, supra at 80, 624 N.W.2d 479, this Court held that "[b]ecause the trial court failed to articulate a substantial and compelling reason for a downward departure, we conclude that it abused its discretion in imposing a sentence outside the guidelines range." On remand, the trial court sentenced defendant to three years' probation with the first year to be served in jail. Once again, however, all but sixty days of defendant's jail sentence were suspended with defendant being given sixty-one days' credit for time served.

II. APPLICABLE LAW

Under the legislative sentencing guidelines, courts in most instances are required to impose a minimum sentence within the appropriate sentence range pursuant to M.C.L. § 769.34(2).1 Babcock I, supra at 72, 624 N.W.2d 479. MCL 769.34(3) provides the following exception:

A court may depart from the appropriate sentence range established under the sentencing guidelines ... if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. All of the following apply to a departure:
(a) The court shall not use an individual's gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
(b) 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.

The Babcock I panel noted that M.C.L. § 769.34(11)2 requires this Court to vacate and remand for resentencing where there are not substantial and compelling reasons for a guidelines departure. Babcock I, supra at 73-74, 624 N.W.2d 479. In defining what constituted "substantial and compelling reasons," this Court applied the language from People v. Fields, 448 Mich. 58, 528 N.W.2d 176 (1995), wherein our Supreme Court defined identical language found in the controlled substances act. Babcock I, supra at 74-75, 624 N.W.2d 479. The Babcock I panel, relying on Fields, supra at 67-68, 528 N.W.2d 176, stated that substantial and compelling reasons exist only in exceptional cases and that the reasons justifying departure should keenly or irresistibly grab the court's attention and be recognized as having considerable worth in determining the length of a sentence. Babcock I, supra at 75, 624 N.W.2d 479.

In Babcock I, id., this Court, again relying on Fields, supra at 69-70, 528 N.W.2d 176, stated that the factors relied on by a court in determining whether there are substantial and compelling reasons for departure must be objective and verifiable.

"`[T]he existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error.'" Babcock I, supra at 75-76, 624 N.W.2d 479, quoting Fields, supra at 77, 528 N.W.2d 176. "`The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law.'" Babcock I, supra at 76, 624 N.W.2d 479, quoting Fields, supra at 77-78, 528 N.W.2d 176. "`A trial court's determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion.'" Babcock I, supra at 76, 624 N.W.2d 479, quoting Fields, supra at 78, 528 N.W.2d 176.3

We note that since this Court's decision in Babcock I, our Supreme Court in People v. Hegwood, 465 Mich. 432, 437, n. 10, 636 N.W.2d 127 (2001), partially modified Babcock I, by stating:

The Court of Appeals indicated in Babcock that the principle of proportionality is not part of the legislative guidelines, and that there will be no appellate review of sentence length in cases in which there is a substantial and compelling reason to depart from the recommended minimum stated in the legislative guidelines. 244 Mich.App. 77-78, 624 N.W.2d 479. In this regard, however, we observe that the statute provides, "A court may depart from the appropriate sentence range established under the [guidelines] if the court has a substantial and compelling reason for that departure...." (Emphasis supplied.) MCL 769.34(3). In light of such language, we do not believe that the Legislature intended, in every case in which a minimal upward or downward departure is justified by "substantial and compelling" circumstances, to allow unreviewable discretion to depart as far below or as far above the guideline range as the sentencing court chooses. Rather, the "substantial and compelling" circumstances articulated by the court must justify the particular departure in a case, i.e., "that departure." [Emphasis, omission, and alteration in original.]

The language in Hegwood indicates that there can be varying degrees of substantial and compelling circumstances that must be considered in reviewing the extent of a departure. In other words, if there are substantial and compelling reasons to slightly depart from the guidelines, e.g., a six-month departure, those same reasons may not be sufficient to support a more significant departure, e.g., a three-year departure. Moreover, Hegwood indicates that the principle of proportionality can be considered concerning the extent of a departure.

III. HOLDING IN BABCOCK I

The Babcock I panel reviewed the reasons given by the trial court for departing downward, and it first rejected the court's reliance on defendant's lack of a criminal record because, although objective and verifiable, that factor was already considered in scoring the prior record variables. Babcock I, supra at 79, 624 N.W.2d 479. This Court also rejected the trial court's statement that the crime involved a family situation that might not happen again, because, although objective and verifiable with regard to the existence of a family situation, the factor was considered in the offense variables regarding family victimization for purposes of enhancing rather than reducing the sentence range. Id. The Babcock I panel also noted that the trial court stated that defendant "`still didn't fully appreciate what he's done.'" Id. This Court concluded that the trial court failed to articulate a substantial and compelling reason for a downward departure and therefore abused its discretion. Id. at 80, 624 N.W.2d 479. The trial court was instructed to impose on remand "any minimum sentence within the appropriate guidelines range or to depart from that range if there is a substantial and compelling reason to do so." Id.

IV. THE TRIAL COURT'S REASONING FOR DEPARTURE ON REMAND

The trial court once again departed from the legislative guidelines, as indicated above; however, the court cited additional reasons for the departure on remand. The trial court believed that defendant and society would be better served if defendant were treated outside prison. Further, defendant's probation agent, who is in charge of all Jackson County sex offenders, believed that defendant had made good progress during the past eighteen months of probation, including progress in sex offender therapy, which progress might be halted should defendant be sent to jail or prison. The probation agent indicated that defendant had complied with his probation requirements, and the agent opined that defendant was amenable to treatment. The agent further recommended deviation from the guidelines and that defendant do no more jail time.

The trial court also relied on an affidavit prepared by defendant's attorney, which indicated that this was an unusual case and that more harm than good would come from further incarceration of defendant. Additionally, the trial court relied on correspondence from defendant's brother's special education teacher, which indicated that defendant's brother was seriously impaired with cerebral palsy and mental retardation and that defendant assisted in his brother's care.4 The teacher's...

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    • United States
    • Court of Appeal of Michigan — District of US
    • 29 Mayo 2003
    ...factors presented substantial and compelling reasons to depart from the legislative sentencing guidelines. People v. Babcock, 250 Mich.App. 463, 465-468, 648 N.W.2d 221 (2002). B. Defendant Gonzalez's Consecutive Sentences Defendant Gonzalez next argues that the trial court erred in orderin......
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    ...role in harming the victim than did defendant, who has a "borderline-to-normal" intelligence level. After remand, in a published decision (Babcock II), the Court of Appeals affirmed the sentence, having concluded that, although some factors cited by the trial court were not objective and ve......
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