PEOPLE OF MI V ARTHUR LEE HORTON JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 1, 2005
Plaintiff-Appellee,
v
No. 257312
Monroe Circuit Court
LC No. 03-033280-FC
ARTHUR LEE HORTON, JR.,
Defendant-Appellant.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of assault with intent to do great
bodily harm less than murder, MCL 750.84. Defendant was sentenced to 80 to 120 months in
prison, with 266 days’ credit for time served. We affirm. This case is being decided without
oral argument pursuant to MCR 7.214 (E).
On appeal, defendant contends that there were no substantial and compelling reasons for
exceeding the statutory minimum sentencing guidelines range and that his sentence is
disproportionate to the offense and offender. We disagree.
“[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. 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.” People v
Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003) (citations omitted).
A trial court must state objective and verifiable factors that exist to justify an upward
departure and these factors must be substantial and compelling. Furthermore, the sentence
imposed must be proportionate to the offense and the offender. Id.
The trial court listed numerous factors for exceeding the sentencing guidelines.
However, the trial court also stated:
I would also indicate that one of the main reasons that I imposed minimum
guidelines on Mr. Adams was because of the disparity in the sentences that are
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gonna [sic] apply to these two gentlemen, and that does not apply to him. The
jury could have – could have easily convicted Mr. Horton of the principal charge.
What their reasoning was, nobody really knows. But nevertheless, that resulted in
a big discrepancy between these [c]o-defendants, and I have considered that in
Mr. Adams’ case. [Emphasis added.]
Based on this statement, defendant suggests that the trial court gave defendant a sentence
outside the guidelines simply because it thought defendant should be sentenced in a manner
similar to codefendant. Defendant argues that this was improper because codefendant was
convicted of the greater crime of assault with intent to murder, while defendant was convicted of
the lesser crime of assault with intent to do great bodily harm. However, the statement made by
the trial court focuses on the reasoning for the sentence imposed on codefendant, rather than on
the reasoning for the upward departure for defendant’s sentence. Because the trial court’s
statement referred to codefendant’s rather than defendant’s sentence, defendant’s argument lacks
merit.
The trial court justified an upward departure for defendant’s sentence based on the
existence of the following four factors that the guidelines do not take into consideration:
(1) this assault was a surprise attack on the victim; (2) there were multiple assaults
committed on the victim; (3) this crime involved multiple assaults by a group of
people including the defendant; and (4) the victim was abandoned after being
brutally assaulted and left unconscious on a public sidewalk. The guidelines do
not take these factors into consideration.
This Court must first determine whether these factors exist and whether they are
objective and verifiable. First, the trial court found that this assault was a surprise attack on
James Deaton. There was evidence that defendant accompanied Deaton along with a group of
men to an area away from the public street and suddenly began attacking him just as Deaton was
getting ready to smoke some cocaine. The surprise nature of the crime is supported by the record
and comprises an objective and verifiable factor existing in this case.
Second, the trial court found that there were multiple assaults committed on Deaton. The
evidence shows that defendant was among the group that first attacked Deaton behind the homes
of Almyra and that subsequently attacked an already injured Deaton as he was stumbling down
the street. Therefore, the record shows the existence of multiple assaults, which is an objective
and verifiable factor in this case.
Third, the trial court found that the assaults involved a group of people. There was
evidence that defendant was among a group of assailants who attacked Deaton behind the homes
of Almyra. Furthermore, defendant was accompanied by codefendant and another individual
when he later attacked Deaton as he was stumbling down Almyra. Therefore, there is the
objective and verifiable existence of groups of individuals involved in the assaults in this case.
Fourth, the trial court found that Deaton was abandoned after being brutally assaulted and
left unconscious on a public sidewalk. The evidence showed defendant deliberately left Deaton
in an incapacitated state on the sidewalk following the second brutal attack. The abandonment
was an objective and verifiable factor in this case. Therefore, the four factors that the trial court
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relied on to impose a higher sentence are supported by the record and are objective and
verifiable.
This Court must also determine if these factors represent substantial and compelling
reasons for departing from the sentencing guidelines range where such reasons must be objective
and verifiable and grab the reviewing Court’s attention. First, the trial court correctly observed
that the sentencing guidelines did not properly address the surprise nature of the crime. This
consideration receives some attention within offense variable (OV) 10 of the sentencing
guidelines, which addresses offender exploitation of a vulnerable victim. MCL 777.40. This
variable includes factors such as exploiting a victim’s physical disability, mental disability, youth
or agedness, or a domestic relationship or the offender abused his or her authority status, but it
does not include any factors relating to a surprise attack. Because this variable does not include
among its listed considerations the launching of a surprise attack, the trial court properly
considered this factor as a reason for upward departure.
Second, the trial court correctly observed that the sentencing guidelines did not properly
address the multiple assaults involved in this crime. OV 3 refers to physical injury to a victim
and OV 6 addresses the intent to kill or injure another individual, but neither of these variables
refers to multiple assaults, as was the case in this situation. MCL 777.33; MCL 777.36. The
sentencing guidelines do not contemplate the multiple assaults that occurred in this case,
therefore, the trial court properly considered this factor as a reason for upward departure from the
sentencing guidelines.
Third, the trial court correctly observed that the sentencing guidelines did not properly
address the number of attackers that assaulted Deaton. Although OV 9 refers to the number of
victims involved in the attack, there is no reference in the sentencing guidelines to the number of
attackers involved in an assault. MCL 777.39. Because this factor is not contemplated by the
sentencing guidelines, the trial court properly considered it as a basis for upward departure.
Fourth, abandonment is not among the factors mentioned in the sentencing guidelines. In
People v Ross, 145 Mich App 483, 495; 378 NW2d 517 (1985), this Court noted that the
defendant, like defendant here, abandoned the victim, leaving him unconscious on the street.
Abandonment was considered an important detail regarding the nature and severity of the crime.
Because abandonment is not contemplated by the sentencing guidelines, the trial court properly
considered it in formulating an upward departure.
In sum, because the legislature did not contemplate these factors in the sentencing
guidelines, they have been given inadequate weight in determining the guidelines range. The
existence of these factors provides substantial and compelling reasons for a departure.
Finally, this Court must determine whether the extent of the departure was warranted.
The sentence must be proportionate to the severity of the crime and the defendant’s prior history.
Defendant has previously been charged with two misdemeanors and has a juvenile record.
Furthermore, the severity of the crime is reflected in the record. As discussed above, the four
factors listed by the trial court in the record are supported by the evidence and represent
substantial and compelling reasons for departing from the sentencing guideline range. Defendant
attacked Deaton along with a group of others in a surprise assault. Not once, but twice defendant
engaged in these attacks, rendering Deaton paralyzed and severely incapacitated. Taking into
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account the severity of this offense, an upward departure of thirteen months in excess of the
guidelines range is within a range of reasonable and principled outcomes.
In giving the proper amount of deference to the trial court and acknowledging that the
key to proportionality is whether the sentence reflects the seriousness of the offense and the
offender, we hold that the trial court did not abuse its discretion by sentencing defendant beyond
the minimum sentencing guidelines range. Therefore, we conclude that the trial court did not err
in departing from the minimum sentencing guidelines range when it sentenced defendant to
thirteen months in excess of that range.
Affirmed.
/s/ Michael R. Smolenski
/s/ Bill Schuette
/s/ Stephen L. Borrello
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