People v. Smith

Decision Date31 July 2008
Docket NumberDocket No. 134682.
Citation482 Mich. 292,754 N.W.2d 284
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Thomas SMITH, Defendant-Appellant.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jacqueline J. McCann) for the defendant.



At issue in this case is whether the trial judge fulfilled his obligation to articulate a substantial and compelling rationale for the sentences that he imposed. For each conviction, defendant's minimum sentence was an extreme upward departure from the range set by the sentencing guidelines. We conclude that the judge articulated adequate reasons to support a departure, but failed to justify the extent of this departure.

We hold that the departure was an abuse of discretion because the trial judge did not establish why the sentences imposed were proportionate to the offense and the offender. Therefore, we vacate defendant's sentences and we remand this case to the trial judge for resentencing and articulation of the rationale for the extent of any departure made on remand.


This is a case involving sexual abuse of a child. The victim's mother began taking the victim to defendant's home for day care when she was one year old. Over time, the mother developed a friendship with defendant and with his wife. The victim, whose family life was fatherless, chaotic, and disorganized, began to see defendant as a father figure. When the mother was sent to a halfway house for nine months for drug abuse, the victim and her younger sister moved into defendant's home. Eventually, the mother moved to Atlanta, Georgia, taking her children with her. However, the families stayed in touch and remained close. The victim and her sister returned to Michigan during the summers to spend time with defendant and his wife.

When the mother lost her job in Atlanta, defendant and his wife offered to rent her a room. She accepted. After the school year ended, she sent her daughters back to Michigan to live with defendant and his wife. The victim was nine years old at the time. The mother followed her daughters to Michigan at the end of the summer. She, her two daughters, and their younger brother all shared a room in defendant's home.

The victim testified that defendant began to sexually abuse her when she was nine years old. All the assaults were similar. When the victim was alone on a couch with defendant watching television, defendant would touch her buttocks and penetrate her vagina and anus with his finger. The victim testified that defendant's actions frightened her and that defendant would stop assaulting her when she got up and left the room. The victim also testified that defendant threatened that he would evict her family from the house if she told anyone about the assaults.

The assaults continued over a 15-month period, until the victim revealed them to a friend. The information made its way to the victim's mother, who called the police. Defendant was charged with and a jury convicted him of three counts of first-degree criminal sexual conduct (CSC-I).1 The recommended minimum sentence range under the sentencing guidelines was 9 to 15 years' imprisonment. The prosecutor requested that the trial judge sentence defendant to a minimum sentence at the high end of the guidelines with a "very, very lengthy tail."2

The judge went further than requested. He imposed a minimum sentence for each conviction that exceeded the guidelines recommendation, explaining:

This is the type of case that I think manifests the absolute worst type of exploitation. A child was placed in a position of trust and care with the defendant and his wife. This was at a time a 10 year old child had come from a clearly dysfunctional family, and this was an opportunity for [defendant] to provide a sense of refuge and a sense of stability clearly for [the victim].

There was no male figure in her life, and [defendant] had that opportunity to fill that role, which could have been not only a blessing for him but certainly a blessing for [the victim].

Those of us who have daughters certainly understand that fathers are in a very unique position with regard to their daughters and that we have the opportunity in many respects based on our relationship and the nature of the relationship that we have with our daughters to model or pattern the type of healthy or unhealthy relationship that young women then grow up to have with men in the future as adults.

And so what happened here? Here this 10 year old child looking for, and in fact starved for a positive adult male role model ends up being over a period of about 15 months a sex toy for the defendant. To what extent she will be damaged in the future, who knows? One certainly hopes that she will be able to do well.

But certainly this was a circumstance where [defendant] chose to exploit this relationship. And then in his testimony to blame the child, categorize her as a liar.

And through this particular ordeal forcing the victim, this 10 year old, to have to go through a rather, for her, for a 10 year old, the kind of frightening gynecological type of examination certainly adding to the trauma in this particular case, I think that certainly the Michigan Supreme Court in People v. Babcock has stated that if the Court is going to go outside the guidelines, the Court must in fact look to objective and verifiable facts and circumstances in evidence.

Certainly it is an objective and verifiable fact that the defendant stood in the role of a parental figure for a child who had none. That this was a child who was sexually exploited over a period of 15 months. That's verifiable.

These are the characteristics that I think don't adequately get covered in the guidelines. They don't. I mean it's unimaginable to me to think that a 10 year old who may be fearful of the fact that she may lose the roof over her head for herself, her mother and her two siblings, is forced to silently endure this kind of sexual exploitation.

The guidelines didn't calculate that, but I am.

On a departure evaluation form, the judge summarized his reasons for the departure: (1) defendant's role as a child-care provider,3 (2) the period over which the abuse occurred, (3) the defendant's threat to evict the victim and her family if she told anyone about his conduct, and (4) the gynecological examination the victim was forced to undergo. The judge sentenced defendant to three concurrent terms of 30 to 50 years' imprisonment, with credit for 23 days served. The minimum term of 30 years' imprisonment is twice the highest minimum term defendant could have received had the judge sentenced him within the guidelines recommendation.

The Court of Appeals affirmed defendant's convictions and sentences in an unpublished opinion per curiam.4 It concluded that the reasons the judge gave for departure were objective and verifiable.5 It further concluded that the judge did not abuse his discretion in determining that his reasons were substantial and compelling.6 Finally, the Court of Appeals held that the sentences were proportionate to the seriousness of the crimes.7

Defendant applied for leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other peremptory action.8


Under MCL 769.34(3), a minimum sentence that departs from the sentencing guidelines recommendation requires a substantial and compelling reason articulated on the record. In interpreting this statutory requirement, the Court has concluded that the reasons relied on must be objective and verifiable. They must be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court's attention.9 Substantial and compelling reasons for departure exist only in exceptional cases.10 "In determining whether a sufficient basis exists to justify a departure, the principle of proportionality ... defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed."11 For a departure to be justified, the minimum sentence imposed must be proportionate to the defendant's conduct and prior criminal history.12

The 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, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight."13

On appeal, courts review the reasons given for a departure for clear error.14 The conclusion that a reason is objective and verifiable is reviewed as a matter of law.15 Whether the reasons given are substantial and compelling enough to justify the departure is reviewed for an abuse of discretion, as is the amount of the departure.16 A trial court abuses its discretion if the minimum sentence imposed falls outside the range of principled outcomes.17

Under MCL 769.34(7), the court must advise a defendant that he or she may seek appellate review of a sentence that is more severe than the guidelines recommendation. There is no preservation requirement for review of such a sentence.18

In this case, the trial judge articulated the reasons for his departure. In particular, he referred to the 15-month period over which the serial abuse occurred. The fact that defendant abused the victim for more than a year was not reflected in the guidelines.

That sexual abuse occurred over a long period is an objective and verifiable reason for departure. The abuse in this...

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