PEOPLE OF MI V RICKY JUNIOR NELSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 15, 2002
Plaintiff-Appellee,
v
No. 224297
Crawford Circuit Court
LC No. 99-001747-FC
RICKY JUNIOR NELSON,
Defendant-Appellant.
Before: O’Connell, P.J., and Sawyer and Smolenski, JJ.
O’CONNELL, P.J. (dissenting).
I disagree with my colleagues that vacating defendant’s sentence and remanding for
resentencing is necessary in the instant case. The evidence at trial revealed that defendant
entered the six-year-old victim’s bedroom at night, made her take off her clothes, placed his
penis in her mouth, and told her to “be quiet and don’t tell anyone.” In my view, remanding to
allow for resentencing of this pedophile who preyed on a six-year-old girl would be futile and a
waste of judicial resources where he already received an appropriate sentence. See, e.g., People
v Alexander, 234 Mich App 665, 678; 599 NW2d 749 (1999) (declining to remand for full
resentencing where to do so would waste court resources).
Defendant was convicted of one count of first-degree criminal sexual conduct (CSC I),
MCL 750.520b(1)(a) (penetration with person under age of thirteen). The trial court sentenced
defendant to a term of 9 to 17 years’ imprisonment.1 During trial, the prosecutor presented the
testimony of Deputy Sheriff Randall Herman, who stated that he interviewed defendant on July
13, 1999. After Herman advised defendant of his Miranda2 rights, defendant gave the following
statement regarding his interaction with the six-year-old victim the day before, July 12, 1999.
[Y]esterday with the whole ordeal, I was just . . . basically seeing what [the victim
would] do. . . . You know when the first time I met her, I mean, she was humping
my leg, I was just seeing if she would do anything bad. . . . We were basically
standing up in her bed. . . . [A]t first I woke her up, got everything ready then
1
The legislative sentencing guidelines recommended a minimum sentence in the range of 42 to
70 months’ imprisonment.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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went in there and she was getting undressed and just, I mean, she still had clothes
on, parts of her clothes on. . . . I was just basically seeing if she was going to
scream or keep her mouth shut.
In response to Herman’s question regarding what defendant did to the victim, defendant
indicated that he “rub[bed] her leg” and “the top of [the victim’s] chest.” Defendant further told
Herman that he “fe[lt] terrible” about his actions.
At defendant’s November 29, 1999, sentencing hearing, the trial court made the
following observations.
[CSC I] is one of the most serious crimes that the Court is called upon to
deal with. The long-term ramifications of this type of activity for the victim are
extreme. It is not specific to a particular case, but a pretty general and wellunderstood phenomenon that victims of these types of offenses have a great deal
of difficulty going forward. There is some evidence in the record that this is the
case with this young lady. There was absolutely no thing [sic], other than your
gratification, involved in this matter. It’s very, very bad.
***
The Court acknowledges that the sentence imposed exceeds the
recommended guideline range. . . . The sentence is imposed for the reasons stated
by the Court on the record; it is also imposed for the further reason that the Court
intends to allow this victim a considerable period of time to grow and mature
without any concerns about the Defendant being present in her life.
Because defendant committed this crime after January 1, 1999, the legislative sentencing
guidelines apply. MCL 769.34(1), (2); People v Reynolds, 240 Mich App 250, 254; 611 NW2d
316 (2000). As our Supreme Court recently observed in People v Hegwood, ___ Mich ___ ; ___
NW2d ___ (Docket No. 118373, decided 12/4/01) slip op, 9:
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.
MCL 769.34(3) provides in pertinent part:
A court may depart from the appropriate sentence range established under
the sentencing guidelines set forth in chapter XVII if the court has a substantial
and compelling reason for that departure, and states on the record the reasons for
departure.
Our Supreme Court further explained that the plain and unambiguous language of MCL
769.34(3) reflected the Legislature’s intention that the “‘substantial and compelling’
circumstances articulated by the court must justify the particular departure in a case, i.e., ‘that
departure.’” Hegwood, supra, slip op at 6-7, n 10 (emphasis in original).
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In the present case, the trial court decided to depart from the legislative sentencing
guidelines’ range on the basis of several factors. Specifically, the trial court noted that defendant
“used a position of authority to rape [the victim],” that defendant did not deny other alleged
sexual misconduct with the victim, the victim was entitled to peace of mind knowing that
defendant would be unable to commit the same despicable act again, and that the victim would
have to undergo counseling.
With regard to the first factor, defendant’s patent abuse of a position of authority with the
victim, I disagree with the majority’s contention that MCL 769.34(3)(b) precluded the trial court
from using this factor as a substantial and compelling reason to justify departure from the
recommended guidelines’ range. I recognize that pursuant to MCL 769.34(3)(b), a trial court
may not use as a basis for departure a factor already accounted for “in determining the
appropriate sentence range unless the court finds . . . that the characteristic has been given
inadequate or disproportionate weight.” However, by including this factor on the sentencing
guidelines departure form (SGDF), the trial court reflected its determination that this factor was
not given adequate weight in fashioning the sentencing guidelines’ range. Specifically, the
SGDF states “[w]hen determining the sentence for the offender, [the trial court] found (1) that
point values for the following offense and prior record factors were inappropriate, and that the
following factors not specifically included in the guidelines led me to choose a sentence outside
the guidelines range.”
Moreover, I agree with the majority that the second factor considered by the trial court –
that defendant did not deny the allegations of other sexual misconduct – was objective and
verifiable and constituted a substantial and compelling reason for departing from the guidelines’
range. People v Babcock, 244 Mich App 64, 75; 624 NW2d 479 (2000).
However, I disagree with the majority’s contention that the victim’s peace of mind and
the potential that she may have to undergo counseling to deal with the ramifications of
defendant’s actions are not objective and verifiable factors that provided the court with
substantial and compelling reasons to deviate from the legislative guidelines’ range. To be
objective and verifiable, “the facts considered by the judge . . . must be actions or occurrences
which are external to the minds of the judge, defendant and others involved in making the
decision and must be capable of being confirmed.” People v Fields, 448 Mich 58, 66; 528
NW2d 176 (1995) (emphasis supplied), quoting People v Krause, 185 Mich App 353, 358; 460
NW2d 900 (1990).
In contrast with the majority, I believe the fact that the six-year-old victim may have to
undergo counseling is a fact “external to the mind[ ] of the judge,” and is likewise capable of
being confirmed. Fields, supra at 66. As the majority notes, in her victim impact statement to
the court, the victim’s grandmother indicated that the child may well need counseling in the
future. In my view, the trial court did not abuse its discretion in finding this to be a substantial
and compelling reason to deviate from the recommended guidelines’ range. Babcock, supra at
78.
In my opinion, defendant’s sentence also satisfied the principle of proportionality, which
requires that a sentence be proportionate to the circumstances surrounding the offense and the
offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). In Babcock, supra at 78,
this Court concluded that once a reviewing court determines that the trial court did not abuse its
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discretion in finding substantial and compelling reasons to depart from the guidelines’ range,
further review of the sentence under the principle of proportionality is precluded. Judge Hood
filed a concurring opinion, in which he disagreed with the majority that Milbourn was relegated
to the “judicial scrap heap” by virtue of the enactment of the legislative sentencing guidelines.
Babcock, supra at 92 (Hood, J., concurring). Specifically, Judge Hood noted that “the
Legislature has not abandoned the principle of proportionality, but, rather, incorporated the
principle into the sentencing guidelines, and it is to be taken into consideration when departing
from the sentencing guidelines.” Id. at 86. Similarly, in Hegwood, supra, slip op at 6-7, n 10,
our Supreme Court appeared to question the Babcock Court’s conclusion that the principle of
proportionality played no part in appellate review pursuant to the legislative sentencing
guidelines.
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 guidelines range. 244 Mich
App 77-78. . . . [W]e 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,
the ‘substantial and compelling’ circumstances articulated by the court must
justify the particular departure in a case, i.e., ‘that departure.’ [Emphasis in
original.]
Because the trial court did not abuse its discretion in finding substantial and compelling
reasons to justify from the recommended guidelines range, and the departure satisfied the
principle of proportionality, I would affirm defendant’s sentence.
/s/ Peter D. O’Connell
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