People v. Wesley

• Decision Date: 25 August 1987
• Docket Number: No. 17,Docket No. 77844,17
• Citation: 411 N.W.2d 159,428 Mich. 708
• Court: Michigan Supreme Court
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee v. James Harris WESLEY, Defendant-Appellant. Calendar

Page 159

411 N.W.2d 159

428 Mich. 708

The PEOPLE of the State of Michigan, Plaintiff-Appellee v. James Harris WESLEY, Defendant-Appellant.

Docket No. 77844.

Calendar No. 17.

Supreme Court of Michigan.

Argued Jan. 13, 1987.

Decided Aug. 25, 1987.

Martha G. Mettee, Asst. Pros. Atty., George B. Mullison, Bay County Pros. Atty., Bay City, for plaintiff-appellee.

James Krogsrud, Detroit, for defendant-appellant.

Before the Entire Bench

ARCHER, Justice.

Following a jury trial in the Bay Circuit Court, the defendant was convicted of one count of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a), and was sentenced to forty to sixty years in prison. The Court of Appeals affirmed the defendant's conviction and sentence in an unpublished per curiam opinion. At the request of Circuit Judge William Caprathe, the trial judge in this case, the opinion was later published. 148 Mich.App. 758, 384 N.W.2d 783 (1985).

We granted defendant's application for leave to appeal on June 24, 1986, as to whether a defendant must be resentenced when the sentencing judge relies on the defendant's assertion of innocence.

We would hold that while a sentencing court cannot, in whole or in part, base its sentence on a defendant's refusal to admit guilt, People v. Yennior, 399 Mich. 892, 282 N.W.2d 920 (1977), evidence of a lack of remorse can be considered in determining an individual's potential for rehabilitation. Here, the trial court made clear when stating its reasons for exceeding the sentencing guidelines that defendant's assertion of innocence was not the reason for imposing the harsh sentence. We therefore conclude that the trial court did not abuse its discretion in determining the defendant's sentence.

Facts

Defendant, age fifty-seven, was charged with one count of first-degree criminal sexual conduct with a seven-year-old girl. The defendant, who had no prior convictions, testified at trial, maintaining that the criminal act had not occurred. Following a five-day trial, the defendant was convicted of the charged offense and sentenced to forty to sixty years in prison. The minimum sentence recommended by the Supreme Court Sentencing Guidelines indicates thirty-six to seventy-two months (three to six years). Relying on Yennior, supra, the defendant then appealed to the Court of Appeals, claiming that the sentencing judge improperly considered defendant's denial of guilt in setting his sentence, as suggested by the following language:

"Although you deny the offense, Mr. Wesley, a jury found you guilty of the offense. There were three witnesses that testified that you did it. One of the problems here that I see, as far as any kind of rehabilitation is concerned, is that you do not feel you have a problem in this area and, therefore, any kind of rehabilitation or counseling would have to be on some sort of a forced effort. Because, if you don't believe you have a problem, which is your position, and you have a right to take that position, the hope of recovery or rehabilitation, however one wants to put it, diminishes, in my opinion, and makes the situation a difficult situation. If you believe you don't need counseling, then it has a negative impact on any counseling that's required by the Court. Also, that in--is a situation which leads the Court to believe that any kind of rehabilitation would have to take place in prison. Not only because of the less likelihood of rehabilitation taking place, but also the fact that it would be the threat to the safety of society, more particular in this case, the safety of children, if you're out in some sort of a program on the outside being forced to have this kind of counseling."

The defendant argues that his sentence should be vacated and the cause remanded for resentencing by a different judge because the trial court erred in considering defendant's refusal to admit guilt. The defendant specifically requests that we follow our decision in People v. Yennior, supra, where we held that a court cannot base a sentence, even in part, on a defendant's refusal to admit guilt.

We note initially that sentencing is a matter of judicial discretion, and, absent abuse of that discretion to the extent that the sentence shocks the conscience of the appellate court, a trial court's sentencing decision will not be disturbed on appeal. People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983). A trial court's decision as to the proper sentence must be based upon the particular circumstances of each case and dependant upon material facts. Such factors include: (1) the potential for the reformation of the offender, (2) the protection of society, (3) the discipline of the wrongdoer, and (4) the deterrence of others from committing like offenses. People v Snow, 386 Mich. 586, 592, 194 N.W.2d 314 (1972); Coles, supra.

While this Court has never specifically addressed the issue, in determining whether sentencing was improperly influenced by defendant's failure to admit guilt, the Court of Appeals has focused upon three factors: (1) the defendant's maintenance of innocence after conviction, (2) the judge's attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. See, e.g., People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975); People v. Grable, 57 Mich.App. 184, 225 N.W.2d 724 (1974); People v. Fleming, 142 Mich.App. 119, 127, 369 N.W.2d 499 (1985). Under the Court of Appeals analysis, if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant's persistence in his innocence. If, however, the record shows that the court did no more than address the factor of remorsefulness as it bore upon defendant's rehabilitation, then the court's reference to a defendant's persistent claim of innocence will not amount to error requiring reversal. See, e.g., People v. Gray, supra; People v. Stubbs, 99 Mich.App. 643, 298 N.W.2d 612 (1980); People v. Camon, 110 Mich.App. 474, 313 N.W.2d 322 (1981), lv. den. 414 Mich. 859 (1982); People v. Pottruff, 116 Mich.App. 367, 323 N.W.2d 402 (1982), lv. den. 414 Mich. 924 (1982); People v. Ross, 145 Mich.App. 483, 378 N.W.2d 517 (1985). Using similar analyses, other jurisdictions have made the distinction between a court's consideration of a defendant's failure to admit guilt and its consideration of a defendant's lack of remorse. ¹ We would approve of the Court of Appeals analysis and would adopt its conclusion that a defendant's lack of remorse may be considered by a court in imposing sentence.

It is permissible to infer a defendant's lack of remorse from statements contained in presentence reports. M.C.L. Sec. 771.14; M.S.A. Sec. 28.1144; People v. Lee, 391 Mich. 618, 218 N.W.2d 655 (1974); People v. Carter, 128 Mich.App. 541, 550, 341 N.W.2d 128 (1983). As noted by Maine's Justice Caroline D. Glassman,

"The sort of information collected in presentence reports provides a far more finely brushed portrait of a man than do a few hours or days at trial." State v. Farnham, 479 A.2d 887, 896 (Me, 1984).

The propriety of a sentencing court's consideration of a defendant's remorsefulness at sentencing is also evidenced by the statutory requirement that the court be provided with reports on the "antecedents, character, and circumstances" of a defendant before sentencing. ²

The defendant's attitude as it reflects his rehabilitative potential is a factor by which courts of review determine whether sentencing was improperly influenced by a failure to admit guilt following conviction. See, e.g., Gray, supra; Stubbs, supra; Camon; Pottruff; Ross, supra.

In the case at bar, the sentencing judge made an extensive record, stating the criteria which he had considered before determining sentence. The court repeatedly alluded to the defendant's failure to acknowledge his sexual "problem." As stated by the court:

"Although you deny the offense, Mr. Wesley, a jury found you guilty of the offense. There were three witnesses that testified that you did it. One of the problems here that I see, as far as any kind of rehabilitation is concerned, is that you do not feel you have a problem in this area and, therefore, any kind of rehabilitation or counseling would have to be on some sort of a forced effort. Because, if you don't believe you have a problem, which is your position, and you have a right to take that position, the hope of recovery or rehabilitation, however one wants to put it, diminishes, in my opinion, and makes the situation a difficult situation. If you believe you don't need counseling, then it has a negative impact on any counseling that's required by the Court. Also, that in--is a situation which leads the Court to believe that any kind of rehabilitation would have to take place in prison. Not only because of the less likelihood of rehabilitation taking place, but also the fact that it would be the threat to the safety of society, more particular in this case, the safety of children, if you're out in some sort of a program on the outside being forced to have this kind of counseling." (Emphasis added.)

The emphasized language, particularly the three references to the defendant's failure to recognize that he has a problem, manifests the trial judge's concern with the defendant's failure to appreciate the detrimental effect of his sexual actions, as opposed to his failure to admit guilt.

The present case is unlike Grable, supra, where the sentencing court erroneously considered the defendant's failure to admit guilt. Here, the sentencing judge neither asked defendant to admit his guilt nor offered him a lesser sentence if he did. While rewarding a defendant for a posttrial admission of guilt would violate the defendant's right to appeal, the implication of better treatment on sentencing found in Grable and its progeny, if he admitted his guilt was not present...