PEOPLE OF MI V GERALD LEE BABCOCK
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice
Maura D. Corrigan
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 31, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No.
121310
GERALD LEE BABCOCK,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to consider
whether
the
trial
court
articulated
a
substantial
and
compelling reason, as required under MCL 769.34(3), to justify
its
downward
guidelines.
departure
from
the
statutory
sentencing
The Court of Appeals concluded that the trial
court did not abuse its discretion in departing from the
guidelines and, thus, affirmed defendant’s sentence.
The
Court of Appeals concluded that some of the trial court’s
reasons for departing from the statutory sentencing guidelines
were
not
objective
and
verifiable
substantial and compelling.
and,
therefore,
not
Because the Court of Appeals did
not determine whether the trial court would have departed, and
would have departed to the same degree, had it not relied on
these improper factors, we reverse the judgment of the Court
of Appeals and remand this case to the Court of Appeals for
further consideration pursuant to this opinion.
I.
FACTS
AND
PROCEDURAL HISTORY
Defendant pleaded guilty to two counts of second-degree
criminal sexual conduct and, in exchange, the prosecutor
dismissed the single original charge of first-degree criminal
sexual conduct.
Although the statutory sentencing guidelines
called for a minimum range of thirty-six to seventy-one
months, the trial court sentenced defendant to three years’
probation and one year in jail; however, all but sixty days of
defendant’s jail term were suspended.
The trial court’s
reasons for departing from the guidelines consisted of the
following: (1) defendant had no prior criminal record, (2) the
crime involved a family member, (3) a three-year minimum was
too “harsh,” and (4) treatment outside a prison environment
was more likely to rehabilitate defendant.
In a published
decision (Babcock I), the Court of Appeals vacated defendant’s
sentence, having concluded that the trial court’s reasons for
2
the departure were not substantial and compelling.1
On remand, the trial court again sentenced defendant to
probation
and
a
suspended
jail
term.
The
trial
court
articulated additional reasons for the downward departure,
including the following: (1) the probation officer recommended
probation, rather than a prison term; (2) defendant’s trial
counsel, in an affidavit, recommended against a prison term;
(3) a great portion of the victim’s emotional harm was caused
by defendant’s uncle who abused her and from separation from
defendant’s
grandmother;
(4)
letters
from
defendant’s
brother’s special-education teacher and attorney indicated
that defendant’s brother is severely disabled because of
cerebral palsy and mental retardation and that defendant is
his brother’s primary caregiver; (5) a letter from defendant’s
physician indicated that defendant suffers from herniated
discs; and, finally, (6) the fact that defendant’s uncle, who
has a normal intelligence level, played a much greater 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 verifiable, the
trial court did not abuse its discretion in departing from the
1
244 Mich App 64; 624 NW2d 479 (2000).
3
guidelines.2
We granted the prosecutor’s application for
leave to appeal.3
II.
STANDARD
OF
REVIEW
This case presents an issue of statutory interpretation,
i.e.,
the
interpretation
of
the
statutory
sentencing
guidelines, MCL 769.34, which we review de novo.
Veenstra v
Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643
(2002).
III.
A.
HISTORY
OF
ANALYSIS
SENTENCING GUIDELINES
In 1983, this Court concluded that an appellate court has
the authority to review a trial court’s exercise of discretion
in sentencing.
440 (1983).
People v Coles, 417 Mich 523, 550; 339 NW2d
At the time Coles was decided, there were no
sentencing guidelines; instead, there were merely statutory
minimums and maximums for certain offenses, and a trial court
could sentence a convicted person to any period within this
statutory range.4
In Coles, this Court concluded that the
2
250 Mich App 463; 648 NW2d 221 (2002).
3
467 Mich 872 (2002).
4
At the time, there were also, as there continue to be,
mandatory sentences for certain offenses.
For example, a
first-degree murder conviction mandates a sentence of
imprisonment for life, MCL 750.316, and a conviction for
possession of a firearm during the commission of a felony
mandates a sentence of imprisonment for two years, MCL
750.227b. Neither the judicial nor the statutory sentencing
guidelines would supersede a mandatory sentence.
4
appellate court could review a trial court’s selection of a
sentence within the statutory minimum and maximum; however,
the appellate court could “afford relief to the defendant only
if the appellate court finds that the trial court, in imposing
the sentence, abused its discretion to the extent that it
shocks the conscience of the appellate court.”
In
1983,
this
Court
crafted
Id.
judicial
sentencing
guidelines and promulgated these guidelines by administrative
order.5
As this Court explained in People v Hegwood, 465 Mich
432, 438; 636 NW2d 127 (2001):
This
Court’s
sentencing
guidelines
were
“mandatory” only in the sense that the sentencing
court was obliged to follow the procedure of
“scoring” a case on the basis of the circumstances
of the offense and the offender, and articulate the
basis for any departure from the recommended
sentence range yielded by this scoring. However,
because the recommended ranges found in the
judicial guidelines were not the product of
legislative action, a sentencing judge was not
necessarily obliged to impose a sentence within
those ranges.
In 1990, this Court overruled the Coles “shocks the
conscience” test and adopted in its place the “principle of
proportionality” test, “which requires sentences imposed by
the trial court to be proportionate to the seriousness of the
circumstances
surrounding
the
offense
and
the
offender.”
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
More
specifically, the Court stated that “the Legislature, in
5
Administrative Order No. 1983-3, 417 Mich cxxi (1983).
5
setting a range of allowable punishments for a single felony,
intended persons whose conduct is more harmful and who have
more
serious
prior
criminal
records
to
receive
greater
punishment than those whose criminal behavior and prior record
are less threatening to society.”
Id. at 651.
In 1998, the Legislature enacted statutory sentencing
guidelines, MCL 777.1 et seq.6
As this Court in Hegwood,
supra at 439, explained:
Because the new guidelines are the product of
legislative enactment, a judge’s discretion to
depart from the range stated in the legislative
guidelines is limited to those circumstances in
which such a departure is allowed by the
Legislature.
Under the statutory sentencing guidelines, a departure is only
allowed by the Legislature if there is a “substantial and
compelling
reason”
for
doing
so.7
MCL
769.34(3).8
6
The statutory sentencing guidelines are applicable to
enumerated felonies committed on or after January 1, 1999.
MCL 769.34(2).
7
It is only the minimum sentence that must presumptively
be within the appropriate sentence range. MCL 769.34(2). The
maximum sentence is either set by statute, e.g., the maximum
sentence for extortion is twenty years, MCL 750.213, or it
falls within the judge’s discretion.
In exercising this
judicial discretion, the trial court cannot impose a minimum
sentence that exceeds two-thirds of the maximum sentence.
People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972); MCL
769.34(2)(b).
8
As explained in Hegwood, supra at 440 n 16: “In MCL
769.34(3), the Legislature states a rule that makes no
apparent distinctions between ‘upward departures,’ that
increase the sentence beyond the length stated in the
guidelines, and ‘downward departures,’ that decrease the
6
Accordingly, since the enactment of the statutory sentencing
guidelines, the role of the trial court has necessarily been
altered.
Before the enactment of these guidelines, the trial
court was required to choose a sentence within the statutory
minimum and maximum that was “proportionate to the seriousness
of
the
circumstances
offender.”
surrounding
Milbourn, supra at 636.
the
offense
and
the
Following the enactment
of these guidelines, the trial court is required to choose a
sentence within the guidelines range, unless there is a
“substantial and compelling” reason for departing from this
range.9
Consequently, and as discussed more fully below, the
role of the Court of Appeals has also changed from reviewing
the trial court’s sentencing decision for “proportionality” to
sentence below the length stated in the guidelines.”
9
In at least one circumstance, a sentence may constitute
a departure, and thus require the articulation of a
substantial and compelling reason, even though the sentence is
within the appropriate sentence range. People v Stauffer, 465
Mich 633, 636; 640 NW2d 869 (2002).
MCL 769.34(4)(a)
provides:
If the upper limit of the recommended minimum
sentence range for a defendant determined under the
sentencing guidelines set forth in [MCL 777.1 et
seq.] is 18 months or less, the court shall impose
an intermediate sanction unless the court states on
the record a substantial and compelling reason to
sentence the individual to the jurisdiction of the
department of corrections . . . .
Accordingly, if the upper limit of the appropriate sentence
range is less than eighteen months, the sentencing court
cannot impose a prison sentence absent a finding of a
substantial and compelling reason.
7
reviewing the trial court’s sentencing decision to determine,
first, whether it is within the appropriate guidelines range
and, second, if it is not, whether the trial court has
articulated
a
“substantial
and
compelling”
reason
for
departing from such range.10
B.
“SUBSTANTIAL
AND
COMPELLING REASON ”
The statutory sentencing guidelines, provide in pertinent
part:
A court may depart from the appropriate
sentence range established under the sentencing
guidelines set forth in [MCL 777.1 et seq.] if the
court has a substantial and compelling reason for
that departure and states on the record the reasons
for departure. [MCL 769.34(3).]
In People v Fields, 448 Mich 58; 528 NW2d 176 (1995), this
Court defined “substantial and compelling reasons” in the
context of departures from mandatory minimum sentences in
controlled-substance cases.11
This Court stated that “only
those factors that are objective and verifiable may be used to
judge
whether
substantial
and
compelling
reasons
exist
10
This is not to say, however, that proportionality is
irrelevant under the statutory sentencing guidelines.
See
part 3(D).
11
At the time Fields was decided, the controlled
substances act, MCL 333.7401(4), provided in relevant part:
The court may depart from the minimum term of
imprisonment . . . if the court finds on the record
that there are substantial and compelling reasons
to do so.
8
. . . .”
Id. at 62.
We further stated that “the reasons
justifying departure should ‘keenly’ or ‘irresistibly’ grab
our attention, and we should recognize them as being ‘of
considerable worth’ in deciding the length of a sentence.”
Id. at 67.
Lastly, we stated, “the Legislature intended
‘substantial
and
compelling
exceptional cases.”
reasons’
to
exist
only
in
Id. at 68.
“A legal term of art is a technical word or phrase that
has acquired a particular and appropriate meaning in the law.
It is, in a statute, to be construed and understood according
to such meaning.”
People v Law, 459 Mich 419, 425 n 8; 591
NW2d 20 (1999), citing MCL 8.3a, which provides, “technical
words and phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be construed and
understood
according
to
such
peculiar
and
appropriate
meaning.” The phrase “substantial and compelling reason” has,
in our judgment, acquired a peculiar and appropriate meaning
in the law and, thus, it must be construed according to such
meaning.
That is, a “substantial and compelling reason” must
be construed to mean an “objective and verifiable” reason that
“‘keenly’ or ‘irresistibly’ grabs our attention”; is “of
‘considerable worth’ in deciding the length of a sentence”;
and “exists only in exceptional cases.”
9
Fields, supra at 62,
67-68.12
C. “STATES
The
statutory
ON THE
sentencing
RECORD ”
guidelines,
MCL
769.34(3),
require the trial court to “state[] on the record the reasons
for departure.” Therefore, it is not enough that there exists
some potentially substantial and compelling reason to depart
from the guidelines range.
Rather, this reason must be
articulated by the trial court on the record. Accordingly, on
review of the trial court’s sentencing decision, the Court of
Appeals cannot affirm a sentence on the basis that, even
12
Although the trial court may depart from the guidelines
range on the basis that a substantial and compelling reason to
do so exists, the trial 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 . . . that the characteristic has
been given inadequate or disproportionate weight.”
MCL
769.34(3)(b).
Therefore, if the seriousness of the
defendant’s conduct and his criminal history have already been
taken into account in determining the guidelines range, they
cannot be used to justify the trial court’s departure, unless
the trial court finds that these factors have been given
inadequate or disproportionate weight.
For instance, if a defendant convicted of armed robbery
is scored 25 points under offense variable one because he
stabbed his victim, see MCL 777.31, that the defendant stabbed
his victim probably could not constitute a substantial and
compelling reason to justify a departure because the
Legislature has already determined what effect should be given
to the fact that a defendant has stabbed his victim and the
courts must abide by this determination.
However, if the
defendant stabbed his victim multiple times, or in a manner
designed to inflict maximum harm, that might constitute a
substantial and compelling reason for a departure because
these characteristics may have been given inadequate weight in
determining the guidelines range.
10
though the trial court did not articulate a substantial and
compelling reason for departure, one exists in the judgment of
the panel on appeal.
Instead, in such a situation, the Court
of Appeals must remand the case to the trial court for
resentencing or rearticulation.
The obligation is on the
trial court to articulate a substantial and compelling reason
for any departure.
As discussed below, the obligation of the
Court of Appeals is to review the trial court’s determination
that
a
substantial
and
compelling
reason
exists
for
departure.13
Further, the trial court must go beyond articulating a
substantial and compelling reason for some departure. Rather,
the trial court can depart from the guidelines range only “if
the court has a substantial and compelling reason for that
departure . . . .”
MCL 769.34(3) (emphasis added).
As we
explained in Hegwood, supra at 437 n 10:
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
13
Although the trial court must articulate a substantial
and compelling reason to justify its departure, the trial
court is not required to use any formulaic or “magic” words in
doing so. Although the better practice may be for the trial
court to specifically state that “[t]he substantial and
compelling reason that justifies my twelve-month departure
here is . . . ,” something short of this may well suffice as
long as the trial court has articulated a substantial and
compelling reason that justifies its departure. In any event,
however it is articulated, the quality of the trial court’s
statement must be sufficient to allow for effective appellate
review.
11
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 in original.]
Thus,
the
trial
court
must
articulate
on
the
record
a
substantial and compelling reason to justify the particular
departure imposed.14
Because the trial court must articulate on the record a
substantial and compelling reason to justify the particular
departure, if the trial court articulates multiple reasons,
and the Court of Appeals determines that some of these reasons
are substantial and compelling and some are not, the panel
must determine the trial court’s intentions. That is, it must
determine whether the trial court would have departed and
would have departed to the same degree on the basis of the
substantial and compelling reasons alone.15
If the Court of
14
However, this is not to say that the trial court must
explain why it chose a twelve-month departure as opposed to an
eleven-month departure (or indeed as opposed to any one of
countless other potential departures).
Rather, the trial
court must simply explain why the actual departure that it
imposed is justified by the substantial and compelling reasons
articulated.
15
When the trial court articulates multiple reasons for
its departure and possesses doubts regarding whether one of
these reasons is a substantial and compelling reason, but
would sentence the defendant the same regardless of this
reason, the best practice would be for the trial court to
explicitly state, if it is true, that “I would impose the same
sentence regardless of this reason.” However, something short
12
Appeals is unable to determine whether the trial court would
have
departed
to
the
same
degree
on
the
basis
of
the
substantial and compelling reasons, or determines that the
trial court would not have departed to the same degree on the
basis of the substantial and compelling reasons, the Court of
Appeals
must
resentencing
remand
or
the
case
to
rearticulation
of
the
its
trial
court
for
substantial
and
compelling reasons to justify its departure.16
For instance,
if the trial court departs from the guidelines range by twelve
months and articulates reasons A, B, and C to justify this
departure, and if the Court of Appeals determines that reasons
A and B are not substantial and compelling reasons,17 but that
C is, the Court of Appeals must determine whether the trial
of such an explicit statement may well suffice as long as it
is clear from the record that the trial court would not have
sentenced defendant differently if it had not relied on this
improper reason.
16
On remand, the trial court does not necessarily have
to impose a different sentence.
It may impose the same
sentence as long as it articulates a substantial and
compelling reason that justifies this sentence.
17
There are several reasons the Court of Appeals may
determine that a reason is not a substantial and compelling
reason, such as that it is not “objective and verifiable”; it
does not “‘keenly’ or ‘irresistibly’ grab our attention”; or
it is not of “‘considerable worth’” in deciding the length of
a sentence.” Fields, supra at 62, 67. Additionally, it may
be concluded that an offense or offender characteristic has
already been taken into account in determining the guidelines
range, and that the trial court has not found that the
characteristic has been given inadequate or disproportionate
weight. MCL 769.34(3)(b).
13
court would have departed from the guidelines range by twelve
months on the basis of reason C alone.
D.
PROPORTIONALITY
If the trial court’s sentence is within the appropriate
guidelines
sentence
range,
unless
the
the
Court
trial
of
Appeals
court
erred
must
in
affirm
the
scoring
the
guidelines or relied on inaccurate information in determining
the defendant’s sentence.
MCL 769.34(10).18
However, if the
sentence is not within the guidelines range, the Court of
Appeals must determine whether the trial court articulated a
substantial and compelling reason to justify its departure
from that range.
MCL 769.34(11).19
In determining whether a sufficient basis exists to
justify a departure, the principle of proportionality—that is,
18
MCL 769.34(10) provides in relevant part:
If
a
minimum
sentence
is
within
the
appropriate guidelines sentence range, the court of
appeals shall affirm that sentence and shall not
remand for resentencing absent an error in scoring
the sentencing guidelines or inaccurate information
relied
upon
in
determining
the
defendant’s
sentence. . . .
19
MCL 769.34(11) provides:
If, upon review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
14
whether the sentence is proportionate to the seriousness of
the defendant’s conduct and to the defendant in light of his
criminal
record—defines
the
standard
against
which
the
allegedly substantial and compelling reasons in support of
departure
are
to
assessed.20
be
proportionality is obvious.
The
relevancy
of
As in any civilized society,
punishment should be made to fit the crime and the criminal.
BMW of North America, Inc, v
S
Ct
1589;
punishment
134
L
should
Ed
fit
2d
Gore, 517 US 559, 576 n 24; 116
809
the
(1996)(“The
crime
‘is
principle
deeply
rooted
that
and
frequently repeated . . . .’”)(citation omitted); Weems v
United States, 217 US 349, 367; 30 S Ct 544; 54 L Ed 793
(1910)(“It is a precept of justice that punishment for crime
should
be
graduated
and
proportioned
to
the
offense.”);
Thomas Jefferson, A Bill for Proportioning Crimes & Punishment
in Virginia, 1779 (“[G]overnment would be defective in its
principal purpose [were it not] a duty in the legislature to
arrange in a proper scale the crimes which it may be necessary
for them to repress, and to adjust thereto a corresponding
gradation
of
punishments”);
Beccaria,
On
Crimes
and
Punishments (1764)(“Therefore, the means made use of by the
20
In other words, while “substantial and compelling” sets
forth the quality of the reasons that must be set forth in
support of a departure from the guidelines, the principle of
“proportionality” defines the standard against which the
decision to depart, and the particular departure imposed, must
be assessed.
15
legislature to prevent crimes should be more powerful in
proportion as they are destructive of the public safety and
happiness, and as the inducements to commit them are stronger.
Therefore there ought to be a fixed proportion between crimes
and punishments.”); Note, Mandatory life sentence without
parole
found
constitutionally
permissible
For
cocaine
possession-Harmelin v Michigan, 67 Wash L R 713, 714 (1992)
(“The belief that the punishment should fit the crime is
deeply rooted in Western civilization.
The proportionality
concept appears in fundamental social documents such as the
Bible and the Magna Carta.”)
Accordingly, jaywalking is not
punishable by life imprisonment, first-degree murder is not
punishable by thirty days in jail, and a person convicted of
robbery for the fourth time generally faces a more severe
punishment than a person convicted of robbery for the first
time.
The premise of our system of criminal justice is that,
everything else being equal, the more egregious the offense,
and
the
more
recidivist
the
criminal,
the
greater
the
punishment.
The Legislature has subscribed to this principle of
proportionality in establishing mandatory sentences as well as
minimum and maximum sentences for certain offenses.
Milbourn, supra at 635-636.
See
It has also subscribed to this
principle of proportionality in establishing the statutory
sentencing guidelines.
Under the guidelines, offense and
16
prior record variables are scored to determine the appropriate
sentence range.
Offense variables take into account the
severity of the criminal offense, while prior record variables
take into account the offender’s criminal history. Therefore,
the appropriate sentence range is determined by reference to
the principle of proportionality; it is a function of the
seriousness of the crime and of the defendant’s criminal
history.
Accordingly, in considering whether to depart from the
guidelines, the trial court must ascertain whether taking into
account an allegedly substantial and compelling reason would
contribute to a more proportionate criminal sentence than is
available within the guidelines range.
In other words, if
there are substantial and compelling reasons that lead the
trial court to believe that a sentence within the guidelines
range
is
not
proportionate
to
the
seriousness
of
the
defendant’s conduct and to the seriousness of his criminal
history, the trial court should depart from the guidelines.
Additionally, in departing from the guidelines range, the
trial
court
must
consider
whether
its
sentence
is
proportionate to the seriousness of the defendant’s conduct
and his criminal history because, if it is not, the trial
court’s
departure
is
necessarily
substantial and compelling reason.
17
not
justified
by
a
E.
STANDARD
OF
REVIEW
OF
SENTENCES OUTSIDE GUIDELINES
In Babcock I, supra at 75-76, the Court of Appeals,
quoting Fields, supra at 77-78, concluded that
“the 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.
The determination that a particular factor is
objective and verifiable should be reviewed by the
appellate court as a matter of law.
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.”
We agree.
In Babcock II, supra at 467 n 3, the Court of Appeals
concluded that, although it was bound by the above language,
it “question[ed] the Babcock I holding regarding the abuse of
discretion standard of review in light of the language in MCL
769.34(11), which appears to suggest that our review is de
novo.”
MCL 769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
Defendant contends that the trial court’s decision that
there is a substantial and compelling reason to depart from
the guidelines range should be reviewed for an abuse of
discretion.
On the other hand, the prosecutor contends that
18
such a decision should be reviewed de novo. Although we agree
with Babcock I’s articulation of the applicable standards of
review—whether a factor exists is reviewed for clear error,
whether a factor is objective and verifiable is reviewed de
novo, and whether a reason is substantial and compelling is
reviewed for abuse of discretion—we take this opportunity to
clarify the meaning of an abuse of discretion with regard to
the Court of Appeals review of a trial court’s decision that
there is a substantial and compelling reason that justifies a
sentencing departure.
In Babcock I, the Court of Appeals quoted the abuse of
discretion test taken from Spalding v Spalding, 355 Mich 382,
384-385; 94 NW2d 810 (1959), which is that an abuse of
discretion occurs when the lower court’s decision is “so
palpably and grossly violative of fact and logic that it
evidences not the exercise of will but perversity of will, not
the
exercise
of
judgment
but
defiance
thereof,
not
the
exercise of reason but rather of passion or bias.”
The Spalding abuse of discretion standard is one that
entitles the trial court the utmost level of deference.
our
judgment,
while
the
Legislature
intended
to
In
accord
deference to the trial court’s departure from the sentencing
guidelines range, it did not intend this determination to be
entitled to Spalding’s extremely high level of deference.
19
MCL 769.34(11) clearly states that if “the court of
appeals finds the trial court did not have a substantial and
compelling reason for departing from the appropriate sentence
range, the court shall remand the matter to the sentencing
judge or another trial court judge for resentencing . . . .”
“Find”
is
defined
consideration
.
.
Dictionary (1991).
as:
.
.”
“to
discover
Random
House
or
perceive
Webster’s
after
College
Therefore, if, after consideration, the
Court of Appeals discovers or perceives that the trial court
did not have a substantial and compelling reason to justify
its
departure,
the
Court
must
remand
the
case
for
resentencing. This statute clearly does not require the Court
of Appeals, in accord with Spalding, to affirm “unless the
result [is] so palpably and grossly violative of fact and
logic that it evidences not the exercise of will but the
perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or
bias.”21
Spalding, supra at 384-385.
21
Further, application of Spalding’s abuse of discretion
standard to the trial court’s finding of a substantial and
compelling reason to justify its departure from the guidelines
range would not further the manifest purpose of the statutory
sentencing guidelines.
The Legislature adopted these
guidelines intending to reduce unjustified disparities in
sentencing.
See 1994 PA 445, § 33(1)(e)(iv)(stating that
sentencing guidelines shall, “Reduce sentencing disparities
based on factors other than offense characteristics and
offender characteristics and ensure that offenders with
similar
offense
and
offender
characteristics
receive
substantially similar sentences.”)(repealed March 7, 2002).
20
That said, some degree of deference is nevertheless owed
the trial court’s finding, and thus a review de novo would be
inappropriate.
The structure and content of the sentencing
guidelines, as well as the organization of the appellate
system itself, plainly reveal the Legislature’s recognition
that the trial court is optimally situated to understand a
criminal case and to craft an appropriate sentence for one
convicted in such a case.
For example, the trial court “may
depart from the appropriate sentence range established under
the sentencing guidelines . . . if the court has a substantial
and
compelling
769.34(3).
departure
reason
for
that
departure.
.
.
.”
MCL
Additionally, the trial court may even “base a
on
an
offense
characteristic
or
offender
characteristic already taken into account in determining the
appropriate sentence range” if “the court finds . . . that the
characteristic has been given inadequate or disproportionate
weight.”
MCL 769.34(3)(b).
Finally, the Court of Appeals
must affirm the trial court’s sentence if it is within the
appropriate guidelines range, unless the trial court made an
“Thus, the very premise of the guidelines is that judicial
discretion will be restricted to a certain degree.” Hegwood,
supra at 438.
However, if the trial court is allowed to
depart from the guidelines unless its decision to do so is “so
palpably and grossly violative of fact and logic that it
evidences not the exercise of will but the perversity of will,
not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias,” Spalding,
supra, the Legislature’s intent to reduce unjustified
disparities in sentencing will be significantly thwarted.
21
error in scoring the sentencing guidelines or relied on
inaccurate information in determining the sentence.
MCL
769.34(10).
It is clear that the Legislature has imposed on the
trial court the responsibility of making difficult decisions
concerning criminal sentencing, largely on the basis of what
has taken place in its direct observation.
Review de novo is
a form of review primarily reserved for questions of law, the
determination of which is not hindered by the appellate
court’s
distance
and
separation
evidence produced at trial.
from
the
testimony
and
The application of the statutory
sentencing guidelines to the facts is
not a generally recurring, purely legal matter,
such as interpreting a set of legal words, say,
those of an individual guideline, in order to
determine their basic intent. Nor is that question
readily resolved by reference to general legal
principles and standards alone.
Rather, the
question at issue grows out of, and is bounded by,
case-specific
detailed
factual
circumstances.
[Buford v United States, 532 US 59, 65; 121 S Ct
1276; 149 L Ed 2d 197 (2001).]
Because of the trial court’s familiarity with the facts and
its experience in sentencing, the trial court is better
situated than the appellate court to determine whether a
departure is warranted in a particular case.
Accordingly,
review de novo, in which a panel of appellate judges could
substitute its own judgment for that of the trial court, is
surely not the appropriate standard by which to review the
22
determination that a substantial and compelling reason exists
to justify a departure from the guidelines range.
Instead,
the appellate court must accord this determination some degree
of deference.
Therefore, the appropriate standard of review must be one
that is more deferential than de novo, but less deferential
than the Spalding abuse of discretion standard.
At its core,
an abuse of discretion standard acknowledges that there will
be circumstances in which there will be no single correct
outcome; rather, there will be more than one reasonable and
principled outcome.
See People v Talley, 410 Mich 378, 398;
301 NW2d 809 (1981)(LEVIN , J., concurring), quoting Langes v
Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931)(“‘The
term “discretion” denotes the absence of a hard and fast
rule.’”).
When
the
trial
court
selects
one
of
these
principled outcomes, the trial court has not abused its
discretion and, thus, it is proper for the reviewing court to
defer to the trial court’s judgment.
An abuse of discretion
occurs, however, when the trial court chooses an outcome
falling outside this principled range of outcomes.
See
Conoco, Inc, v JM Huber Corp, 289 F3d 819, 826 (CA Fed,
2002)(“Under
an
abuse
of
discretion
review,
a
range
of
reasonable determinations would survive review.”); United
States v Penny, 60 F3d 1257, 1265 (CA 7, 1995)(“a court does
not abuse its discretion when its decision ‘is within the
23
range of options from which one would expect a reasonable
trial judge to select’”)(citation omitted).
We believe that
this test more accurately describes the appropriate range of
the
trial
court’s
discretion
with
regard
to
determining
whether a substantial and compelling reason exists to justify
its departure from the appropriate sentence range.
Further,
we believe that this test will contribute significantly to
more consistent sentencing, both by enabling the Court of
Appeals to more effectively constrain departures from the
appropriate
range
of
discretion
by
trial
courts
and
by
imposing a more consistent standard of review upon the Court
of Appeals itself.
Accordingly, the Court of Appeals must determine, upon a
review
of
substantial
the
record,
and
whether
compelling
the
reason
trial
to
court
depart
had
from
a
the
guidelines, recognizing that the trial court was in the better
position
to
make
such
a
determination
determination appropriate deference.
and
giving
this
The deference that is
due is an acknowledgment of the trial court’s extensive
knowledge of the facts and that court’s direct familiarity
with the circumstances of the offender.
The Court of Appeals
is to conduct the thorough review required by MCL 769.34(11),
honoring the prohibition against departures not grounded in a
substantial and compelling reason.
MCL 769.34(3).
In doing
so, however, the Court must proceed with a caution grounded in
24
the inherent limitations of the appellate perspective.
IV. APPLICATION
In this case, the Court of Appeals concluded that some of
the reasons articulated by the trial court were not objective
and verifiable.
As explained above, if a reason is not
objective and verifiable, it cannot constitute a substantial
and compelling reason.22 As also explained above, if the trial
court articulates multiple reasons, and the Court of Appeals,
as in this case, determines that some of these reasons are
substantial and compelling and some are not, and the Court of
Appeals is unable to determine whether the trial court would
have
departed
to
the
same
degree
on
the
basis
of
the
substantial and compelling reasons, the Court must remand the
case to the trial court for resentencing or rearticulation.
Because the Court of Appeals in this case did not determine
whether the trial court would have departed, and would have
departed to the same degree, absent consideration of the
reasons that the Court of Appeals found to be not objective
and verifiable,
we reverse its judgment and remand this case
to the Court of Appeals for further consideration.
V. CONCLUSION
For the above reasons, we reverse the judgment of the
22
While a reason cannot be a substantial and compelling
reason unless it is objective and verifiable, the opposite is
not always true. A reason can be objective and verifiable
without being substantial and compelling.
25
Court of Appeals and remand this case to the Court of Appeals
for further consideration pursuant to this opinion.
Stephen J. Markman
Marilyn Kelly
Clifford W. Taylor
CORRIGAN, C.J.
I concur in all except parts IIIC and IV.
Maura D. Corrigan
CAVANAGH, J.
I concur in all except part IIIB.
Michael F. Cavanagh
APPENDIX
In order to assist the bench and bar, the following is a
summary of the responsibilities of the trial court and Court
of Appeals under the statutory sentencing guidelines:
1.
A trial court is required to choose a minimum
sentence within the guidelines range, unless there is a
substantial and compelling reason for departing from this
range.
2.
MCL 769.34(2), (3).
If a trial court’s sentence is within the guidelines
range, the Court of Appeals must affirm the sentence unless
the trial court erred in scoring the guidelines or relied on
inaccurate
sentence.
information
in
determining
MCL 769.34(10).
26
the
defendant’s
3.
A
substantial
and
compelling
reason
must
be
“objective and verifiable”; must “‘keenly’ or ‘irresistibly’
grab our attention”; and must be “of ‘considerable worth’ in
deciding the length of a sentence.”
4.
Fields, supra at 62, 67.
A trial court must articulate on the record a
substantial
departure,
and
and
compelling
explain
why
reason
this
for
reason
its
particular
justifies
that
departure. MCL 769.34(3); People v Daniel, 462 Mich 1, 9; 609
NW2d 557 (2000).
5.
A trial 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 . . . that the characteristic has
been
given
inadequate
or
disproportionate
weight.”
MCL
769.34(3)(b).
6. In considering whether, and to what extent, to depart
from the guidelines range, a trial court must ascertain
whether taking into account an allegedly substantial and
compelling reason would contribute to a more proportionate
criminal sentence than is available within the guidelines
range.
MCL 769.34(3).
7.
In reviewing sentencing decisions, the Court of
Appeals may not affirm a sentence on the basis that, although
the
trial
court
did
not
articulate
a
substantial
and
compelling reason for a departure, one nonetheless exists in
27
the judgment of the Court of Appeals.
Instead, in such a
situation, the Court of Appeals must remand the case to the
trial court for resentencing.
8.
MCL 769.34(3); MCL 769.34(11).
If a trial court articulates multiple “substantial
and compelling” reasons for a departure from the guidelines,
and the Court of Appeals determines that some of these reasons
are substantial and compelling and others are not, the panel
must determine whether the trial court would have departed,
and would have departed to the same degree, on the basis of
the substantial and compelling reasons alone.
9.
MCL 769.34(3).
If a trial court departs from the guidelines range,
and its sentence is not based on a substantial and compelling
reason to justify the particular departure, i.e., the sentence
is not proportionate to the seriousness of the defendant’s
conduct and his criminal history, the Court of Appeals must
remand to the trial court for resentencing.
10.
MCL 769.34(11).
“‘[T]he existence or nonexistence of a particular
[sentencing]
sentencing
factor
court
to
is
a
factual
determine,
determination
and
should
for
therefore
reviewed by an appellate court for clear error.’”
the
be
Babcock I,
supra at 75-76, quoting Fields, supra at 77.
11.
“‘The determination that a particular [sentencing]
factor is objective and verifiable should be reviewed by the
appellate court as a matter of law.’”
quoting Fields, supra at 78.
28
Babcock I, supra at 76,
12.
“‘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.’”
at 78.
Babcock I, supra at 76, quoting Fields, supra
An abuse of discretion occurs when the trial court
chooses an outcome falling outside the permissible principled
range of outcomes.
29
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No.
121310
GERALD LEE BABCOCK,
Defendant-Appellee.
____________________________________
CORRIGAN, C.J. (concurring in part and dissenting in part).
Although I concur with much of the majority’s analysis
and its result, I cannot agree with the majority’s analysis of
the remand requirement.
Accordingly, I respectfully dissent
in part.
I would limit the requirement of a reviewing court to
remand for resentencing or rearticulation to that explicitly
provided by the Legislature in MCL 769.34(11).
Rather than
interpret the statutory text, the majority creates a new
remand requirement out of whole cloth. The majority concludes
that “if the trial court articulates multiple reasons [for
departure], and the appellate court . . . determines that some
of these reasons are substantial and compelling and some are
not, and the Court of Appeals is unable to determine whether
the trial court would have departed to the same degree on the
basis of the substantial and compelling reasons, the Court
must remand the case to the trial court for resentencing or
rearticulation.”
Ante at 26.
This formulation is found
nowhere in the text of the sentencing guidelines and imposes
an unnecessary burden on both sentencing and reviewing courts.
MCL 769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter. [Emphasis added.]
The Legislature only requires the reviewing court to determine
whether the trial court had “a substantial and compelling
reason” for departing from the sentencing range.
Therefore,
under the statute, the Court of Appeals may only remand for
resentencing or rearticulation if it finds that the trial
court did not articulate a single substantial and compelling
reason for the departure.
In
determining
whether
a
trial
court
articulated
a
substantial and compelling reason for departing from the
appropriate
sentence
necessarily
determine
requirements
articulate
a
of
MCL
range,
the
whether
the
769.34(3):
substantial
and
2
Court
(1)
of
trial
did
compelling
Appeals
court
the
met
trial
reason
for
must
the
court
that
particular departure, and (2) did the trial court state that
substantial and compelling reason on the record. Provided the
trial court complied with the requirements of MCL 769.34(3),
with the result that the Court of Appeals finds at least one
substantial and compelling reason for the departure imposed by
the trial court, then MCL 769.34(11) does not require a
remand.
Using the hypothetical example proposed by the majority,
even
if
a
trial
court
provides
multiple
reasons
for
a
departure and some of those reasons are later determined not
to be substantial and compelling, the statute only requires a
remand if the Court of Appeals finds that the trial court did
not provide a single substantial and compelling reason for
that departure from the statutory sentence range. There is no
textual support for the majority’s requirement that the Court
of Appeals must remand any time any reason is determined not
to
be
substantial
and
compelling,
no
matter
how
many
substantial and compelling reasons remain, unless it is clear
to the reviewing court that the trial court would have imposed
the same departure on the basis of the remaining reasons.
Not only is the majority’s analysis without textual
support, it also renders MCL 769.34(11) superfluous.
It is a
cardinal rule of statutory interpretation that “effect shall
be given to every word, phrase, or clause of a statute.”
3
Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d
567 (2002).
The majority’s interpretation, however, gives no
meaning to the Legislature’s explicit provision regarding
appellate review; rather, it simply collapses the appellate
inquiry into the initial determination to depart under MCL
739.34(3).
In
doing
so,
the
majority
ignores
the
Legislature’s decision to specify the scope and purpose of
review by the Court of Appeals in subsection 11.
Had the Legislature intended to require the Court of
Appeals to read the mind of the trial court in conducting its
review, it would have been sufficient to set forth the trial
court requirements in subsection 3 and omit subsection 11.
Instead, the Legislature provided for a specific standard of
review by the Court of Appeals in subsection 11: the Court of
Appeals shall only remand “[i]f, upon a review of the record,
the court of appeals finds the trial court did not have a
substantial and compelling reason for departing from the
appropriate sentence range.”
If the majority’s analysis is
correct and the Court of Appeals must remand every time it is
unable to discern whether the trial court would have made the
same departure under the existing substantial and compelling
reasons, this language has no meaning.
The plain language of subsection 11 requires the Court of
Appeals to conduct its own inquiry regarding whether the trial
4
court articulated a substantial and compelling reason for
departing from the guidelines. Random House Webster’s College
Dictionary (2d ed, 1997), defines “find” as “to discover or
perceive after consideration,” “to ascertain by study or
calculation,” and “to determine after a judicial inquiry.”
Therefore, subsection 11 requires the Court of Appeals, upon
reviewing
the
record
provided
by
the
trial
court,
to
“discover,” “ascertain,” or “determine” whether the trial
court had a substantial and compelling reason for departing
from the guidelines. This is the entire scope and function of
the Court of Appeals inquiry.
Nothing in the statutory text
requires the Court of Appeals to “find” that the trial court
would have departed and departed to the same degree on the
basis of a substantial and compelling reason, as the majority
would require.
The Legislature provided only that the Court
of Appeals must determine for itself whether the trial court
articulated at least one substantial and compelling reason for
departing from the guidelines, and we are bound by that
legislative
provision.
The
majority’s
creation
of
an
extratextual remand inquiry renders subsection 11 superfluous
and usurps legislative authority.
Further, as a practical matter, the majority’s approach
will force the Court of Appeals to remand innumerable cases to
the trial courts for resentencing or rearticulation.
5
In any
case in which the Court of Appeals is not comfortable with its
ability to divine the workings of the mind of the sentencing
judge, it will be forced to remand even though it finds that
a substantial and compelling reason justifies the departure.
This extreme level of inefficiency is not required by the
statutory text and will create needless additional work for an
already overburdened trial bench.
To mitigate the effect of
the majority’s extratextual requirement, I strongly suggest
that every trial judge add the following disclaimer to the end
of every judgment of sentence:
I am persuaded that the defendant should serve
the sentence I have rendered and it is my intention
that this sentence be sustained if an appellate
court determines that any of my rationales for
departure survive review.
Although this disclaimer is not required by the statutory
text, it is now functionally required by the majority’s
creation of a new remand inquiry.
Because I believe we are bound by the statutory language,
I
would
hold
that
a
remand
is
only
required
under
MCL
769.34(11) if the Court of Appeals, after reviewing the record
provided by the trial court, determines that there is not a
single substantial and compelling reason for departing from
the guidelines, as defined in MCL 769.34(3).
Accordingly, I respectfully dissent in part from the
majority’s decision.
6
Maura D. Corrigan
Robert P. Young, Jr.
7
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
No. 121310
v
GERALD LEE BABCOCK,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority except to the extent it continues to utilize the definition
of “substantial and compelling reasons” from People v Fields, 448 Mich 58; 528 NW2d
176 (1995). Ante at 7-8. I remain committed to the Fields dissent and would not
improperly impose limitations on the types of factors a sentencing court may consider.
In Fields, this Court addressed “substantial and compelling reasons” necessary
for departure under the controlled substance act, then in effect, and stated that “only
those factors that are objective and verifiable may be used to judge whether substantial
and compelling reasons exist.” Fields at 62.
The Fields dissent conducted an
exhaustive review of the case law interpreting “substantial and compelling,” as used in
the statute at issue, and the Legislature’s intent in enacting the statute. The dissent also
examined the plain language of the statute at issue and pointed out that the Legislature
did not specify any limit on the types of factors the sentencing court may consider.
Fields at 99 (CAVANAGH,J., dissenting). The Legislature only specified that the reasons
for a sentencing departure must meet the substantial and compelling threshold. Id.
There is nothing in the language of the statute or the legislative history limiting a
sentencing judge’s consideration to only “objective and verifiable” factors. Therefore,
a sentencing court should consider all the factors and circumstances surrounding an
individual case.
Additionally, what rises to the level of substantial and compelling is clearly
subjective. “It relates to this defendant and to this sentencing judge, who is examining
this individual and this offense.” Id. at 104 (emphasis in original). Thus, the weighing
of all the factors and circumstances before the sentencing court includes inherently
subjective inquiries.
Further, as was discussed at length in the Fields dissent, the “objective”
limitation is unworkable. See, e.g., Id. at 95-96, 101-102, 103-104, 105-106. There are
certain factors, such as a defendant’s remorse or a defendant’s family support, that
may be considered objective by one sentencing judge and subjective by another. The
dissent in Fields stated, “[t]he better test is whether the sentencing judge is satisfied
that the nature and extent of the defendant’s remorse [or family support] are
substantial and compelling reasons to support a sentencing departure.” Id. at 105. I
remain committed to the position that the “objective” criteria utilized by this Court is
unworkable.
Therefore, while I agree with the remainder of the majority opinion, I must
2
dissent to the extent this Court continues to employ the Fields “objective” definition of
“substantial and compelling reasons.”
Michael F. Cavanagh
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No.
121310
GERALD LEE BABCOCK,
Defendant-Appellee.
____________________________________
WEAVER, J. (dissenting in part and concurring in part).
I dissent from the majority’s result and opinion and
would affirm the Court of Appeals decision. I dissent because
(1) I continue to believe that the phrase “a substantial and
compelling
reason”
does
not
limit
the
trial
court
to
considering only factors that are “objective and verifiable”
and (2) I agree with the standard for remand articulated by
the Chief Justice in her partial dissent rather than with the
majority’s
remand
analysis.
I
majority’s
basic
recognition
that
769.34(3)
requires
the
court
to
concur
the
state
only
in
(1)
the
language
of
MCL
on
the
record
a
substantial and compelling reason for departing from the
guidelines and (2) the majority’s refinement of the abuse of
discretion standard.
First, pursuant to the legislative sentencing guidelines,
A court may depart from the appropriate
sentence range established under the sentencing
guidelines set forth in [MCL 777.1 et seq.] if the
court has a substantial and compelling reason for
that departure and states on the record the reasons
for that 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,
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. [MCL 769.34(3).]
While I concur in the majority’s basic recognition that the
language of the statute requires the trial court to state on
the record “a substantial and compelling reason” for its
departure from the sentencing guidelines, I dissent from the
rest of the majority’s analysis.
is
plain
and
unambiguous,
and
The language of the statute
the
majority’s
excessive
interpretation of this language, which is clear on its face,
is unnecessary.
Second, I agree with the standard for remand articulated
by the Chief Justice in her partial concurrence and partial
2
dissent, rather than with the majority’s remand analysis. MCL
769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentencing range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
Pursuant to this language, a remand to the trial court is only
required “if the Court of Appeals, after reviewing the record
provided by the trial court, determines that there is not a
single substantial and compelling reason for departing from
the guidelines, as defined in MCL 769.34(3).”
Ante at 7.
Further, as the Chief Justice notes, the majority’s approach
will, as a practical matter, “force the Court of Appeals to
remand innumerable cases to the trial courts for resentencing
or rearticulation” and “will create needless additional work
for
an
already
Consequently,
I
overburdened
agree
trial
with
the
bench.”
Chief
Ante
Justice
at
that
6.
the
majority’s opinion functionally requires at the end of every
judgment of sentence the disclaimer she articulates.
Third, I continue to believe that a “substantial and
compelling
reason”
does
not
limit
the
trial
court
to
considering only factors that are “objective and verifiable.”
Rather, I continue to subscribe to the position articulated in
my dissent in People v Daniel, 462 Mich 1, 22-23; 609 NW2d 557
3
(2000), that all relevant factors, not only those that are
objective
and
verifiable,
should
be
considered
when
determining whether there is a substantial and compelling
reason to depart from the sentencing guidelines.
Fourth, I concur with the majority’s refinement of the
abuse of discretion standard.
Ante at 19-24.
The abuse of
discretion standard, as previously articulated in Spalding v
Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), was so
exaggerated
that
it
unreasonably
limited
appellate
court
review.
Sentencing a defendant for the crime committed is a
discretionary act.
As recognized by the majority, “the trial
court is optimally situated to understand a criminal case and
to craft an appropriate sentence for one convicted in such a
case.”
Ante at 21.
Consequently, a considerable degree of
deference should be afforded the trial court.
Today, the
majority provides a reasonable definition of that deferential
standard:
At its core, an abuse of discretion standard
acknowledges that there will be circumstances in
which there will be no single correct outcome;
rather, there will be more than one reasonable and
principled outcome. When the trial court selects
one of these principled outcomes, the trial court
has not abused its discretion and, thus, it is
proper for the reviewing court to defer to the
trial court’s judgment.
An abuse of discretion
occurs, however, when the trial court chooses an
outcome falling outside this principled range of
4
outcomes. [Ante at 22-23 (citations omitted).]
I emphasize that according to this standard, the trial court
does not abuse its discretion if it selects a different
principled outcome than the reviewing court would have chosen
from the range of principled outcomes.
Applying the principles discussed herein to the facts of
this case and considering all relevant factors, I would
conclude that the trial court did not abuse its discretion in
departing downward from the sentencing guidelines.
The trial
court offered the following reasons for its departure: (1) the
probation agent recommended probation, (2) abuse of the victim
by her uncle and separation from her grandmother caused a
great part of the harm suffered by the victim, (3) defendant’s
original attorney recommended probation, (4) correspondence
from defendant’s brother’s special-education teacher and from
defendant’s brother’s attorney indicated that defendant was
the caregiver for his brother, who suffers severe disability
because of cerebral palsy and mental retardation, and (5) a
letter from defendant’s physician indicated that defendant has
a herniated disc in his back.
factors
satisfies
the
The articulation of these
requirement
that
the
trial
court
articulate a substantial and compelling reason on the record
for its downward departure.
Moreover, the trial court’s
decision did not venture beyond the range of principled
5
outcomes under the circumstances.
Therefore, the trial court
did not abuse its discretion, and the judgment of the Court of
Appeals should be affirmed.
Elizabeth A. Weaver
6
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