People v. Gauntlett

• Decision Date: 02 August 1984
• Docket Number: Docket Nos. 76435,76564 and 76578
• Citation: 352 N.W.2d 310,134 Mich.App. 737
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger A. GAUNTLETT, Defendant-Appellant, and Wayne County Prosecutor, Amicus Curiae. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roger A. GAUNTLETT, Defendant-Appellee, and Wayne County Prosecutor, Amicus Curiae. 134 Mich.App. 737, 352 N.W.2d 310
• Court: Court of Appeal of Michigan — District of US

Page 310

352 N.W.2d 310

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger A. GAUNTLETT, Defendant-Appellant, and Wayne County Prosecutor, Amicus Curiae.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roger A. GAUNTLETT, Defendant-Appellee, and Wayne County Prosecutor, Amicus Curiae.

Docket Nos. 76435, 76564 and 76578.

134 Mich.App. 737, 352 N.W.2d 310

Court of Appeals of Michigan.

Submitted April 9, 1984.

Decided May 17, 1984.

Released for Publication Aug. 2, 1984.

[134 MICHAPP 739] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the People.

Gemrich, Moser, Dombrowski, Bowser & Fette by William L. Fette, Kalamazoo, for defendant-appellant.

[134 MICHAPP 740] John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Civil Appellate Asst. Pros. Atty., and Timothy A. Baughman, Asst. Pros. Atty., for amicus curiae Wayne County Prosecutor.

Before T.M. BURNS, P.J., and BEASLEY and KAUFMAN ^*, JJ.

PER CURIAM.

In Docket Nos. 76435 (as of right) and 76564 (on leave to appeal granted), defendant appeals from his July 12, 1983, conviction, on plea of nolo contendere before Judge John E. Fitzgerald, Kalamazoo County Circuit Court, to one count of criminal sexual conduct in the first degree and the probation sentence with conditions imposed January 30, 1984, by Judge Robert L. Borsos, Kalamazoo County Circuit Court. In Docket No. 76578, the people have filed a claim of appeal from the sentence.

In the Fall of 1982, a complaint and warrant issued, charging defendant with two counts of criminal sexual conduct in the first degree arising from defendant's acts of sexual intercourse with his 14-year-old stepdaughter in April and October, 1981. The complaint also charged three counts of criminal sexual conduct in the second degree arising from defendant's sexual fondling of his 12-year-old stepson in January, 1982. The district court conducted a preliminary examination on October 21, 1982, and bound defendant over for trial on those charges. An information charging those offenses was filed November 1, 1982.

Defendant appeared before Judge Fitzgerald July 12, 1983, and offered to plead nolo contendere to one count of criminal sexual conduct in the first degree with the stepdaughter pursuant to an [134 MICHAPP 741] agreement that the other counts would be dismissed at sentencing. After advising defendant of the rights and privileges required by GCR 1963, 785.7, the court accepted defendant's plea.

On October 18, 1983, Judge Fitzgerald met in chambers with the parties and counsel and discussed the sentence he intended to impose. It reportedly included a probation term, one year jail time and a requirement that defendant contribute to a rape counselling center for Kalamazoo County. At the conclusion of the hearing, Judge Fitzgerald made a brief statement on the record:

"The court has shared with counsel what its inclination is. The court obviously has not pronounced the sentence and therefore the matters that we discussed in chambers are exactly that: matters discussed in chambers and not a matter of public record and should be kept as such."

The assistant prosecutor assigned to the case informed the victim's father about the proposed sentence. When it became public, the Kalamazoo County Circuit Judges filed a grievance with the State Bar Grievance Commission against the assistant prosecutor. The commission later dismissed the grievance after the circuit court requested it be withdrawn and after the commission found no basis for action. In the meantime, the prosecution filed a motion to disqualify Judge Fitzgerald. November 16, 1983, Judge Fitzgerald disqualified himself on his own motion because of those developments.

The chief circuit judge assigned the case by blind draw to Judge Richard Lamb. The prosecution moved to disqualify Judge Lamb because he joined in the circuit court's grievance against the assistant prosecuting attorney. Defendant later [134 MICHAPP 742] filed a motion to disqualify the assistant prosecutor. On January 20, 1984, the assistant prosecutor withdrew his motion to disqualify Judge Lamb and requested that the case be assigned to another attorney within the prosecutor's office. On January 25, 1984, Judge Lamb filed an opinion and order disqualifying himself on his own motion. That day Judge Fitzgerald, then chief circuit judge, reassigned the case to Judge Borsos.

On January 26, 1984, Judge Borsos gave the assistant prosecutor, defendant and defense counsel sealed envelopes with the warning that the attorneys not open them until 9:00 a.m. Saturday, January 28, 1984. The court allowed defendant to open his envelope in private sooner but directed him not to discuss the contents until after 9:00 a.m. Saturday. The envelope contained a two-page bibliography of medical articles dealing with drug treatment of male sex offenders, two articles from the American Journal of Psychiatry on the same subject and a two-page description of the drug Depo-Provera from the Physicians' Desk Reference. Defendant and the attorneys respected the limitations placed on the information by Judge Borsos, but a local newspaper reporter found out about the envelope and Judge Borsos received many phone calls from the media. So, about 10:00 a.m. on Saturday, January 28, 1984, Judge Borsos took a copy of the medical information to the local newspaper.

In the meantime, on January 26, 1984, Judge Borsos considered on his own motion the matter of his qualification to sentence defendant and filed an 11-page opinion in which he concluded that he was not disqualified. He set sentencing for January 30, 1984.

On January 27, 1984, defendant filed a motion to [134 MICHAPP 743] limit sentence to the sentence "imposed" by Judge Fitzgerald and, on January 30, 1984, a motion for reconsideration of Judge Borsos's decision that he was not disqualified. At sentencing on January 30, 1984, the assistant prosecutor also filed a motion to disqualify Judge Borsos and defendant argued his motion to limit the sentence to that "imposed" by Judge Fitzgerald. Judge Borsos denied both motions. The assistant prosecutor then handed the court a written motion to refer the matter of disqualification to the chief judge pursuant to GCR 1963, 912.3(c)(1). Judge Borsos immediately denied the motion. The assistant prosecutor then took the position that the court lacked jurisdiction to proceed with sentencing and indicated an intention not to participate in the proceedings any further.

Defense counsel requested a five- to seven-day adjournment of sentencing in order to discuss with his client the possibility of withdrawing his plea. Judge Borsos refused an adjournment but offered to hear defendant's motion to withdraw his plea. Counsel for defendant insisted that defendant was not in a position to make a rational decision on whether to retain or withdraw his plea. In light of that, Judge Borsos denied the motion for an adjournment.

The court proceeded to sentencing. Defendant declined an opportunity for allocution. His attorney spoke to the court on his behalf and contradicted some of the matters mentioned in the presentence report.

In a preamble to the sentence, Judge Borsos said, in part:

"Recently, however, there have been important scientific discoveries and medical studies on what medical people have always known to be true, that some men are truly over-sexed; they have a greater supply of male [134 MICHAPP 744] hormones that causes them to have much stronger sex urges than the normal male and are much less able to resist temptation; like a furnace which overheats a house if the thermostat is set too high."

Judge Borsos said to defendant:

"On your behalf, there are many things that you are not. You are not a violent rapist who drags women and girls off the street and into the bushes or into your car from a parking lot; and I have had a lot of these in my courtroom, and I'm sure we have many in our community that I will see in the future, and we probably have some that I won't see. You are not a child chaser, one whose obsession with sex causes him to seek neighborhood children or children in parks or in playgrounds, and we see these people in court. You are a man who has warm personal feelings for your stepchildren, but you let them get out of hand, and we see a number of people like you in our courts."

Judge Borsos sentenced defendant to five years probation, with the first year in the county jail "with no credit for time you have already served". Judge Borsos also ordered defendant to pay "to the County of Kalamazoo as court costs the sum of $25,000 for part of the expense the county has been put to by this case". Finally, Judge Borsos ordered that defendant "within 30 days submit yourself to castration by chemical means patterned after the research and treatment of the Johns Hopkin[s] Hospital in Baltimore, Maryland, and continue same for the five years of your probation under the supervision of this Court". Judge Borsos reserved the matter of restitution until a later time.

In "post-sentencing remarks", the court suggested that defendant might later want to make a [134 MICHAPP 745] contribution for a research and treatment center for sex offenders. He said:

"We need such a center, but I'm not making it part of the sentence. If after all the motion dies down you feel that a community has treated you fairly and want to do something for Southwestern Michigan, the establishment of such a center would be a great thing. It might also make you feel that your life, like that of your ancestor W.E. Upjohn, was important to this community and that you left this world a better place for having been here."

Judge Borsos denied defendant's motion for bond pending appeal. Defendant began serving his sentence in the Kalamazoo County jail immediately after it was imposed.

On February 6, 1984, without notice to the parties, Judge Borsos filed a...