PEOPLE OF MI V GERALD LEE BABCOCK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 19, 2002
9:05 a.m.
Plaintiff-Appellant,
v
No. 235518
Jackson Circuit Court
LC No. 99-095646-FH
GERALD LEE BABCOCK,
Defendant-Appellee.
Updated Copy
June 21, 2002
Before: Sawyer, P.J., and Murphy and Hoekstra, JJ.
PER CURIAM.
This case is before us after previously being remanded by this Court in People v Babcock,
244 Mich App 64; 624 NW2d 479 (2000)(Babcock I). The prosecutor appeals by leave granted
the judgment of sentence entered by the trial court on remand. We affirm.
I. PROCEDURAL HISTORY
Defendant was charged with one count of first-degree criminal sexual conduct, MCL
750.520b, involving a twelve-year-old female relative. Defendant subsequently pleaded guilty to
two counts of second-degree criminal sexual conduct, MCL 750.520c. Defendant was sentenced
to three years' probation, with the first year to be served in jail; however, all but sixty days of
defendant's jail sentence were suspended. The applicable legislative sentencing guidelines
provided for a minimum sentence range of thirty-six to seventy-one months. This Court granted
the prosecutor's application for leave to appeal, which challenged the sentence on the ground that
the downward departure from the sentencing guidelines was error because there was a lack of
substantial and compelling evidence justifying the departure.
In Babcock I, supra at 80, this Court held that "[b]ecause the trial court failed to articulate
a substantial and compelling reason for a downward departure, we conclude that it abused its
discretion in imposing a sentence outside the guidelines range." On remand, the trial court
sentenced defendant to three years' probation with the first year to be served in jail. Once again,
however, all but sixty days of defendant's jail sentence were suspended with defendant being
given sixty-one days' credit for time served.
II. APPLICABLE LAW
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Under the legislative sentencing guidelines, courts in most instances are required to
impose a minimum sentence within the appropriate sentence range pursuant to MCL 769.34(2).1
Babcock I, supra at 72. MCL 769.34(3) provides the following exception:
A court may depart from the appropriate sentence range established under
the sentencing guidelines . . . if the court has a substantial and compelling reason
for that departure and states on the record the reasons for 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, representation by retained 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.
The Babcock I panel noted that MCL 769.34(11)2 requires this Court to vacate and
remand for resentencing where there are not substantial and compelling reasons for a guidelines
departure. Babcock I, supra at 73-74. In defining what constituted "substantial and compelling
reasons," this Court applied the language from People v Fields, 448 Mich 58; 528 NW2d 176
(1995), wherein our Supreme Court defined identical language found in the controlled
substances act. Babcock I, supra at 74-75. The Babcock I panel, relying on Fields, supra at 6768, stated that substantial and compelling reasons exist only in exceptional cases and that the
reasons justifying departure should keenly or irresistibly grab the court's attention and be
recognized as having considerable worth in determining the length of a sentence. Babcock I,
supra at 75.
1
MCL 769.34(2) provides, in part, as follows:
Except as otherwise provided in this subsection or for a departure from the
appropriate minimum sentence range provided for under subsection (3), the
minimum sentence imposed by a court of this state for a felony enumerated in part
2 of chapter XVII committed on or after January 1, 1999 shall be within the
appropriate sentence range under the version of those sentencing guidelines in
effect on the date the crime was committed.
2
MCL 769.34(11) provides that
[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, the court shall remand the matter to the sentencing judge or
another trial court judge for resentencing under this chapter.
-2-
In Babcock I, id., this Court, again relying on Fields, supra at 69-70, stated that the
factors relied on by a court in determining whether there are substantial and compelling reasons
for departure must be objective and verifiable.
"'[T]he 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.'" Babcock I, supra at 75-76, quoting Fields, supra at 77. "'The determination that a
particular factor is objective and verifiable should be reviewed by the appellate court as a matter
of law.'" Babcock I, supra at 76, quoting Fields, supra at 77-78. "'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.'" Babcock I, supra at 76, quoting Fields, supra at 78.3
We note that since this Court's decision in Babcock I, our Supreme Court in People v
Hegwood, 465 Mich 432, 437, n 10; 636 NW2d 127 (2001), partially modified Babcock I, by
stating:
The Court of Appeals indicated in Babcock that the principle of
proportionality is not part of the legislative guidelines, and that there will be no
appellate review of sentence length in cases in which there is a substantial and
compelling reason to depart from the recommended minimum stated in the
legislative guidelines. 244 Mich App 77-78. In this regard, however, we observe
that the statute provides, "A court may depart from the appropriate sentence range
established under the [guidelines] if the court has a substantial and compelling
reason for that departure . . . ." (Emphasis supplied.) MCL 769.34(3). 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 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,
3
We question 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. See n
2. However, we are compelled by MCR 7.215(I)(1) to follow the rule of law established in
Babcock I. Additionally, we are bound by Babcock I under the law of the case doctrine because
there has been no intervening change of law. Ashker v Ford Motor Co, 245 Mich App 9, 13; 627
NW2d 1 (2001). We do note, however, that the controlled substance act, and particularly MCL
333.7401(4), which the Fields Court interpreted, and on which the Babcock I panel relied for
guidance, does not contain a provision such as that found in MCL 769.34(11). As our Supreme
Court noted in People v Hegwood, 465 Mich 432, 439; 636 NW2d 127 (2001), the legislative
guidelines have provided new ground rules that may make inapplicable prior controlling law.
Therefore, we question the application of Fields with regard to the abuse of discretion standard
of review on the bases that Fields predates the legislative guidelines and MCL 769.34(11)
envisions a different standard of review. This issue has not been raised or briefed by the parties,
and for the reasons stated we are deciding this issue on appeal under an abuse of discretion
standard.
-3-
the "substantial and compelling" circumstances articulated by the court must
justify the particular departure in a case, i.e., "that departure." [Emphasis,
omission, and alteration in original.]
The language in Hegwood indicates that there can be varying degrees of substantial and
compelling circumstances that must be considered in reviewing the extent of a departure. In
other words, if there are substantial and compelling reasons to slightly depart from the
guidelines, e.g., a six-month departure, those same reasons may not be sufficient to support a
more significant departure, e.g., a three-year departure. Moreover, Hegwood indicates that the
principle of proportionality can be considered concerning the extent of a departure.
III. HOLDING IN BABCOCK I
The Babcock I panel reviewed the reasons given by the trial court for departing
downward, and it first rejected the court's reliance on defendant's lack of a criminal record
because, although objective and verifiable, that factor was already considered in scoring the prior
record variables. Babcock I, supra at 79. This Court also rejected the trial court's statement that
the crime involved a family situation that might not happen again, because, although objective
and verifiable with regard to the existence of a family situation, the factor was considered in the
offense variables regarding family victimization for purposes of enhancing rather than reducing
the sentence range. Id. The Babcock I panel also noted that the trial court stated that defendant
"'still didn't fully appreciate what he's done.'" Id. This Court concluded that the trial court failed
to articulate a substantial and compelling reason for a downward departure and therefore abused
its discretion. Id. at 80. The trial court was instructed to impose on remand "any minimum
sentence within the appropriate guidelines range or to depart from that range if there is a
substantial and compelling reason to do so." Id.
IV. THE TRIAL COURT'S REASONING FOR DEPARTURE ON REMAND
The trial court once again departed from the legislative guidelines, as indicated above;
however, the court cited additional reasons for the departure on remand. The trial court believed
that defendant and society would be better served if defendant were treated outside prison.
Further, defendant's probation agent, who is in charge of all Jackson County sex offenders,
believed that defendant had made good progress during the past eighteen months of probation,
including progress in sex offender therapy, which progress might be halted should defendant be
sent to jail or prison. The probation agent indicated that defendant had complied with his
probation requirements, and the agent opined that defendant was amenable to treatment. The
agent further recommended deviation from the guidelines and that defendant do no more jail
time.
The trial court also relied on an affidavit prepared by defendant's attorney, which
indicated that this was an unusual case and that more harm than good would come from further
incarceration of defendant. Additionally, the trial court relied on correspondence from
defendant's brother's special education teacher, which indicated that defendant's brother was
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seriously impaired with cerebral palsy and mental retardation and that defendant assisted in his
brother's care.4 The teacher's correspondence was considered by the court in conjunction with
correspondence from an attorney who was handling probate guardianship matters for defendant's
brother. The probate attorney explained defendant's role in the care of his brother and the
hardship that would result to defendant's mother and family should defendant be removed from
the home. Finally, the trial court considered correspondence from defendant's doctor that
defendant had a herniated disc.
V. ANALYSIS AND CONCLUSION
Some of the factors cited by the trial court are not objective and verifiable, and we will
not consider them in our analysis. Specifically, the court's belief that defendant and society
would be better served if defendant is treated outside prison is neither objective nor verifiable.
Further, the affidavit of defendant's attorney is neither objective nor verifiable.
However, there are factors relied on by the trial court that were objective and verifiable.
Those factors included defendant's compliance with his probation requirements, including sex
offender therapy,5 defendant's herniated disc, and the fact that defendant is involved in providing
care to his impaired brother. The prosecutor does not challenge the existence of these facts.
Additionally, these factors constitute nondiscriminatory reasons not considered by the guidelines.
MCR 769.34(3)(a) and (b).
Although we believe that it is debatable whether the objective and verifiable factors
relied on by the trial court constitute substantial and compelling reasons justifying a downward
departure from the guidelines range, we cannot conclude that the trial court's decision based on
those factors was so palpably and grossly violative of fact and logic that it indicates not the
exercise of will but perversity of will. Babcock I, supra at 76. Therefore, the trial court did not
abuse its discretion in departing downward from the minimum guidelines range. Moreover, for
the same reason, we do not believe that the trial court abused its discretion with regard to the
extent of the downward departure.
Affirmed.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Joel P. Hoekstra
4
The special education teacher, who was also involved in coordinating medical care for
defendant's brother, stated that defendant provides hands-on care for his brother, "including
transfers, bathing, [tube]feeding, and medical administration." The teacher also noted that
defendant's and his brother's mother is an insulin-dependent diabetic with many health problems
that limit her ability to care for defendant's brother.
5
We do note that the probation agent's assertion that defendant is amenable to treatment is
neither objective nor verifiable.
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