People v. Babcock

• Decision Date: 27 February 2001
• Docket Number: Docket No. 223624.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerald Lee BABCOCK, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

624 N.W.2d 479

244 Mich. App. 64

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerald Lee BABCOCK, Defendant-Appellee.

Docket No. 223624.

Court of Appeals of Michigan.

Submitted September 6, 2000, at Lansing.

Decided December 26, 2000, at 9:10 a.m.

Released for Publication February 27, 2001.

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, P.C. (by Bruce A. Barton), Jackson, for the defendant.

Before TALBOT, P.J., and HOOD and GAGE, JJ.

TALBOT, P.J.

Defendant was charged with one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; MSA 28.788(2), involving his twelve-year-old "cousin." In exchange for defendant pleading guilty of two counts of second-degree criminal sexual conduct, M.C.L. § 750.520c; MSA 28.788(3), the prosecutor dropped the first-degree criminal sexual conduct charge. Although the legislatively created sentencing guidelines range for the minimum appropriate sentence was thirty-six to seventy-one months, the trial court sentenced defendant to three years' probation, with the first year to be served in jail. All but sixty days of defendant's jail term were suspended. This Court granted the prosecutor's application for leave to appeal. We vacate and remand for resentencing.

On appeal, the prosecutor argues that the trial court's reasons for departing from the minimum statutory guidelines range were not substantial and compelling. Defendant, on the other hand, contends that his sentence was proportionate. The issues raised by the parties require us to review the recent sentencing guidelines legislation and the manner in which the statute affects the scope of appellate review.

By its very nature, sentencing is the community's response to crime. As such, the ultimate authority to provide for sentencing is constitutionally vested in the Legislature, Const. 1963, art. 4, § 45,¹ and delegated by the Legislature to the trial courts. See M.C.L. § 769.1(1); MSA 28.1072(1).² The Legislature empowered the trial court judiciary with the "unique role as the link between a defendant and a victim and between community values and the goals of the criminal justice system." People v. Milbourn, 435 Mich. 630, 670, 461 N.W.2d 1 (1990) (Boyle, J., dissenting). As Justice Boyle explained, id. at 680-681, 461 N.W.2d 1:

The Michigan Constitution gives the Legislature the authority to provide for sentencing, a power which the people gave to that department of government. Pursuant to that authority, the Legislature enacted statutes which set the maximum punishment and gave the authority to set the minimum punishment to the trial court judiciary. Thus, indeterminate sentencing is a legislative delegation of constitutional authority to trial judges to tailor their sentences to the particular offender and the particular offense "within the legislatively prescribed range" of punishment for each felony. Ante, p. 651, 461 N.W.2d 1.

Historically, the trial courts could impose any sentence they deemed appropriate provided the sentence was indeterminate and did not exceed that which was authorized by law. Const. 1963, art. 4, § 45; MCL 769.1(1); MSA 28.1072(1); see also Cummins v. People, 42 Mich. 142, 144, 3 N.W. 305 (1879); People v. Harwood, 286 Mich. 96, 98, 281 N.W. 551 (1938); In re Callahan, 348 Mich. 77, 80, 81 N.W.2d 669 (1957).

A lengthy period of appellate intervention began, however, with People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972), when our Supreme Court created the requirement that a minimum sentence imposed under the indeterminate sentence act could not exceed two-thirds of the maximum term. In People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983), the Court held that sentences were subject to appellate review and implemented a subjective "shocks the conscience" standard as the method for determining whether a sentence constituted a judicial abuse of discretion. The decision to impose this test was deemed justified because, even if the language of the governing constitutional and statutory provisions did not authorize appellate review, neither did it limit it. Id. at 534-535, 339 N.W.2d 440. The first edition of the Michigan Sentencing Guidelines was developed soon after Coles, supra, was published. In an effort to gauge the "seriousness of a particular offense by a particular offender, as well as the disparity in sentencing between courtrooms," the guidelines' commission reviewed an extensive database of cases, representing the actual sentencing practices of trial judges, and created the first guidelines' ranges. Milbourn, supra at 655, 461 N.W.2d 1. To "facilitate judicial review," the Supreme Court called for trial courts to use its commission-created Michigan Sentencing Guidelines, Administrative Order No. 1984-1, 418 Mich. lxxx. See also Administrative Order No. 1985-2, 420 Mich. lxii; Administrative Order No. 1988-4, 430 Mich. ci. A few years later the Supreme Court made it an abuse of discretion for a trial court to impose a minimum sentence longer than the defendant was expected to live, reasoning that, no matter the severity of the crime, a criminal defendant should not be given an order it was impossible to obey. People v. Moore, 432 Mich. 311, 326, 439 N.W.2d 684 (1989).

The Court later abandoned the "shocks the conscience" test as unworkable and replaced it with the equally amorphous "principle of proportionality." Milbourn, supra at 635, 644-649, 461 N.W.2d 1. The Court held that a given sentence was invalid if it was not proportionate to the seriousness of the matter, taking into account the nature of the offense and the background of the offender. Id. at 651, 461 N.W.2d 1. Proportionality became the standard for measuring all sentences, and the guidelines were deemed a persuasive mechanism for judging whether the sentence was proportionate. The Court, id. at 656, 461 N.W.2d 1, also described the administratively ordered use of its guidelines as a "barometer" for determining appropriate sentencing practices, and explained that "[e]ven where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality." Id. at 660, 461 N.W.2d 1.

The principle of proportionality has been subject to criticism. In People v. Merriweather, 447 Mich. 799, 805, 527 N.W.2d 460 (1994), Justice Boyle noted that this Court's opinion reversing the sentence imposed on the basis that it was disproportionate, "vividly evidence[s] that elaborate rationalizations for lowering sentences distance the appellate judiciary from meaningful connection with reality and distort the concept of individualized justice." Id. In her view, by mediating the victim's tragedy through the "processes of proportionality and guidelines' evaluation, the focus of the reviewing court shifts from the horror of [the victim's] blood, feces, and burned flesh, to the image of an enfeebled and sympathetic defendant...." Id. Justice Boyle also wrote:

I do not retreat from the view that in People v. Milbourn... the Court violated separation of powers and usurped the authority constitutionally confided by the people of this state in their Legislature,... and by the Legislature in the trial courts.... [Id. at 805, 527 N.W.2d 460.]

The Merriweather majority went on to reject the premise that every prisoner must be eligible for parole, implicitly overruling Moore, supra. Id.

at 805, 808-809, 811, 527 N.W.2d 460.

However, throughout the complex and sometimes tumultuous history of judicially created sentencing review, there has never been any legitimate dispute that the Legislature holds ultimate authority for determining the appropriate sentencing scheme for our state. Const. 1963, art. 4, § 45. For that reason, even at the height of its involvement in creating a framework for appellate sentencing review, our Supreme Court determined that it was "not prepared to require adherence" to the judicially created sentencing guidelines because of their lack of legislative mandate. Milbourn, supra at 656-657, 461 N.W.2d 1. The Legislature has now reasserted its constitutional authority over the sentencing process by enacting M.C.L. § 769.34; MSA 28.1097(3.4). This statute codifies the new sentencing guidelines applicable to crimes committed on or after January 1, 1999, M.C.L. § 769.34(1) and (2); MSA 28.1097(3.4)(1) and (2); People v. Greaux, 461 Mich. 339, 342, n. 5, 604 N.W.2d 327 (2000),³ and establishes clear and definitive standards for sentencing and sentencing review.

The statutory scheme returns a carefully defined sentencing responsibility to trial courts. Among other things, the statute requires trial courts in most instances to impose a minimum sentence within the appropriate sentence range. MCL 769.34(2)(a) and (b); MSA 28.1097(3.4)(2)(a) and (b). Recognizing that circumstances may exist that would warrant a departure, the statute permits trial courts to depart from the guidelines, but only where there is a substantial and compelling reason to do so. MCL 769.34(3); MSA 28.1097(3.4)(3).

The issues raised by the parties require us to examine the provisions of the statute that provide for appellate review. Statutory interpretation is a question of law that we review de novo on appeal. People v. Stone Transport, Inc., 241 Mich.App. 49, 613 N.W.2d 737 (2000). The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999). To determine the Legislature's intent, this Court must first look to the specific language of the statute. Id. If the plain and ordinary meaning of the statute is clear, judicial construction is not permitted. Id. A court may not go beyond the words of the statute to determine the Legislature's intent unless the...