PEOPLE OF MI V GARY THOMAS SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 27, 2010
Plaintiff-Appellee,
v
No. 288932
Wayne Circuit Court
LC No. 03-012800-FC
GARY THOMAS SMITH,
Defendant-Appellant.
Before: K. F. Kelly, P.J., and Hoekstra and Whitbeck, JJ.
PER CURIAM.
In 2004, defendant was convicted by a jury of three counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(a), for digitally penetrating the victim’s vagina and anus. The sexual
assaults began when the victim was nine years old and continued over a 15-month period. At
defendant’s original sentencing, the trial court found substantial and compelling reasons to
depart from the sentencing guidelines range of 9 to 15 years and sentenced defendant to three
concurrent terms of 30 to 50 years’ imprisonment each. On appeal, our Supreme Court held that
although the trial court justified its decision to depart from the sentencing guidelines range, it
failed to offer any justification to support the extent of the departure imposed. People v Smith,
482 Mich 292, 299-302, 305-306; 754 NW2d 284 (2008). Accordingly, the Court vacated
defendant’s sentences and remanded the case “for resentencing and for an explanation of the
extent of any departure made on remand.” Id. at 319. On remand, the trial court resentenced
defendant to three concurrent prison terms of 25 to 50 years each. Defendant appeals as of right.
We affirm.
I. Resentencing on Remand
At resentencing, the trial court articulated two rationales for the extent of the departure
and proportionality. As partial justification for the sentences imposed, the trial court first noted
that if defendant had committed the offenses after August 2006, he would have been subject to a
25-year mandatory minimum sentence. See MCL 750.520b(2)(b), as amended by 2006 PA 169,
effective August 28, 2006. The trial court explained that it did not intend to use the amended
statute “in an ex post facto fashion,” but rather as a measure of the Legislature’s viewpoint of an
appropriate sentence. The court explained:
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In this particular case I have been asked to show or demonstrate why my
deviation in this child molesting case, which everyone described as being heinous,
is proportionate.
Now the Supreme Court, at least five of them anyway had said well, I
should look maybe to other jurisdictions to get other viewpoints.
Well, what’s wrong with looking at the viewpoint of the Legislature? The
Legislature has said, you know, we think if you do this, you ought to get 25 years
on the minimum.
***
I do think that in terms of looking at proportionality, in terms of what does
the Legislature think is an appropriate severity [sic] for an offense such as this,
while I will agree that it is a fixed sentence at this particular point now with a 25
year minimum, I do think that it reflects the fact that the People of the State of
Michigan through the Legislature have now stated that the appropriate sentence
for someone who commits this type of sexual assault on a young child, they
should go to prison for a 25 year minimum. That was what the will of the People
has been expressed through the Legislature.
I think if I’m going to look to an Opinion and look for some guidance as to
what might be proportionate, I find that that is the most illustrative for purposes of
this particular resentence.
The trial court also explained that defendant’s exploitation of the victim was not
adequately reflected in the scoring of OV 10, explaining:
This nine year old child came from a dysfunctional family. There was no
father present. The mother had been in prison for drugs, who would disappear for
months at a time and had all but left this nine year old child to be with the
defendant and his wife, who were acting in a child care, running essentially a
child care center kind of environment. So they were holding themselves out as
being people who cared for and were interested in the welfare of children.
This nine year old had no siblings to protect her. There was no adult to
protect her. For a period of 15 months as the evidence showed, she became the
defendant’s sex toy.
And in this particular case also this was the exploitation of this child and
her vulnerability, not just the vulnerability of her physically, not being able to
answer or fight back, but the fact that she was told, according to her own
testimony, that if she told anybody, that she and her baby brother and sister would
be put out on the street, and they would be homeless.
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You know any child longs for security first and foremost. And to threaten
a child with being thrown out on the street and that they’re the precipitating factor
is an outrageous exploitation of that child, an outrageous exploitation of that
child’s vulnerability.
Defendant did not challenge the trial court’s determination that there were substantial and
compelling reasons to depart from the sentencing guidelines range. Instead, he argued that the
court’s reliance on the minimum penalty in MCL 750.520b(2)(b) to justify the extent of the
departure was an improper retroactive application of the law, an ex post facto violation, and a
violation of due process. He further argued that the sentence was disproportionate.
At the conclusion of the hearing, the trial court sentenced defendant to three concurrent
terms of 25 to 50 years’ imprisonment.1
II. Standards of Review
This Court reviews the extent of a sentencing departure for an abuse of discretion. Smith,
supra at 300. Defendant’s arguments concerning the legality of the trial court’s consideration of
the minimum penalty adopted by the Legislature in 2006 are questions of law which this Court
reviews de novo. People v Connor, 209 Mich App 419, 423; 531 NW2d 734 (1995).
III. Analysis
Defendant first argues that the 2006 amendment of MCL 750.520b(2) may only be
applied prospectively to offenses committed after its effective date. We agree. However, in this
case, the trial court did not impose a 25-year minimum sentence on defendant pursuant to MCL
750.520b(2). The trial court specifically acknowledged that the statutory mandatory minimum
penalty did not apply to defendant, and instead decided to impose 25-year minimum sentences as
an exercise of its independent discretion to impose a sentence within the guidelines range or to
depart from the guidelines range for substantial and compelling reasons. The trial court
considered the recently adopted mandatory minimum penalty only as a tool or benchmark for
determining a proportionate sentence. Thus, the court did not retroactively apply the statutory
amendment to offenses that occurred before its effective date. Cf. People v Doxey, 263 Mich
App 115; 687 NW2d 360 (2004).
Citing People v Michielutti, 474 Mich 889; 704 NW2d 705 (2005), Doxey, supra at115,
People v Thomas, 260 Mich App 450, 457-459; 678 NW2d 631 (2004), and People v IzarrarasPlacante, 246 Mich App 490, 496-499; 633 NW2d 18 (2001), defendant asserts that courts of
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The resentencing transcript reveals the trial court actually stated, “So I will amend the sentence
in this particular case, and it is the sentence of the Court that the defendant be committed to the
Michigan Department of Corrections for a period of not less than 25 years, a period not greater
than 60 years.” (Emphasis added.) However, the October 30, 2008, judgment of sentence, as
well as the amended judgment of sentence dated January 7, 2009, both reflect sentences of 25 to
50 years. Because neither party on appeal raises this discrepancy, we assume that the trial court
either misspoke or the transcript is in error.
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this state have held that ameliorative changes in sentencing statutes for controlled substance
offenses cannot be used to favor defendants who committed their offenses before the effective
date of the changes. Defendant argues that because such ameliorative changes cannot be used to
favor defendants who committed their offenses before the effective date of the legislation, “it
would be fundamentally unfair, and thus a violation of due process, to allow changes to the law
to be used retroactively to the detriment of a criminal defendant.” In the cases cited by
defendant, the appellate court did not apply a general rule that ameliorative changes in the law
cannot be used retroactively to benefit a defendant in sentencing. Rather, in each case the
appellate court was required to determine the respective trial court’s sentencing authority as
derived from its interpretation of the statutes in question in order to ascertain and give effect to
the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006).
The present case does not involve a question of statutory interpretation, but rather an exercise of
the trial court’s unquestioned sentencing authority to depart from the guidelines and impose a
sentence for any term of years. Moreover, as indicated previously, the trial court recognized that
the recently enacted mandatory minimum penalty did not apply to defendant’s case. Due process
does not require that this Court balance the unfavorable results received by defendants in
controlled substances cases with a favorable result in the present appeal.
Defendant further argues that had the trial court correctly sentenced him in 2004, the
court would not have been able to use the 2006 amendment of MCL 750.520b(2) as a
benchmark. He contends that due process requires that he not be punished for having
successfully appealed his sentences. He argues that prospective application of the amendment
and a prohibition on using it to justify the extent of a departure is the only interpretation that
avoids violating the proscription on ex post facto laws in the state and federal constitutions. US
Const, art I, § 9 cl 3; US Const, art I, § 10, cl 1; Const 1963, art 1, § 10.2 We disagree.
Neither due process nor the prohibition on ex post facto laws require a court to exercise
its discretion at resentencing using only information that was available at the original sentencing.
To the contrary, in Wasman v United States, 468 US 559, 572; 104 S Ct 3217; 82 L Ed 2d 424
(1984), the Court stated, “We hold that after retrial and conviction following a defendant’s
successful appeal, a sentencing authority may justify an increased sentence by affirmatively
identifying relevant conduct or events that occurred subsequent to the original sentencing
proceedings.” Here, the trial court had already determined that defendant’s conduct warranted a
significant sentence, and considered a subsequent legislative enactment only to assist it in
fashioning a proportionate sentence. Although defendant contends that it is unfair to consider
the amended penalty in MCL 750.520b(2) as a benchmark for determining a proportionate
sentence because that penalty was not in existence at the time of his original sentencing, our
Supreme Court rejected a similar argument in People v Fisher, 442 Mich 560; 503 NW2d 50
(1993).
2
“[A]though the Ex Post Facto Clause does not apply directly to the judiciary, it applies by
analogy through the Due Process Clause of the Fifth and Fourteenth Amendments of the United
States Constitution.” People v Potts, 436 Mich 295, 300; 461 NW2d 647 (1990).
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In Fisher, the defendant was convicted of second-degree murder for an offense
committed in 1985. He was sentenced to prison for 40 to 60 years, which was a significant
departure from the recommended range of 7 to 16 years under the first edition of the judicial
sentencing guidelines. This Court remanded for resentencing and a more complete explanation
of the trial court’s reasons for departure. Id. at 564. On remand, the trial court again sentenced
the defendant to 40 to 60 years, and this Court vacated that sentence and remanded for a second
resentencing by a different judge. Id. at 564-565. At the second resentencing, the trial court
indicated that it was considering the second edition of the judicial sentencing guidelines, which
became effective on October 1, 1988. Id. at 565. The recommended range under the revised
version was 10 to 25 years. Id. The trial court resentenced the defendant to a prison term of 25
to 50 years. Id. This Court held that the trial court erred by considering the second edition of the
sentencing guidelines. Id. The Supreme Court, however, rejected the defendant’s contention
that retroactive application of the revised sentencing guidelines violated the defendant’s right to
due process, the prohibition on ex post facto laws, or the defendant’s right to appeal. Id. at 580.
The Court referred to its previous decision in People v Potts, 436 Mich 295; 461 NW2d 647
(1990), in which it held that retroactive use of the second edition of the judicial guidelines did
not violate the proscription against ex post facto laws because the guidelines did not convey any
substantive rights and did not limit the trial court’s sentencing discretion. The Fisher Court then
extended the reasoning in Potts, explaining:
Given our conclusion in Potts, that the revised guidelines convey no
substantive rights, it logically follows that application of the revised nonbinding
sentencing guidelines to a defendant who has appealed his sentence neither chills
his right to appeal nor infringes upon his right to due process. The revised
guidelines did not increase defendant’s punishment in this case; the only change
was in what was deemed appropriate punishment pursuant to the guidelines.
Moreover, the revisions did not limit the discretion afforded the sentencing judge.
[Fisher, supra at 582 (citation omitted).]
Similarly, in the present case, the Legislature’s adoption of a minimum penalty pursuant
to 2006 PA 169 did not limit the trial court’s discretion or increase defendant’s punishment. The
trial court’s consideration of the amended penalty only as a benchmark for determining a
proportionate penalty is comparable to the trial court’s consideration of the nonbinding revised
judicial guidelines in Fisher. The fact that the revised edition of the guidelines was not in
existence at the time of defendant Fisher’s original sentencing did not mean that consideration of
those guidelines at his resentencing was improper. Similarly, the fact that the minimum penalty
in MCL 750.520b(2), as amended, was not enacted until after defendant was originally sentenced
does not establish that the trial court’s consideration of the change at resentencing was improper.
Next, defendant argues that the trial court failed to articulate why the sentences it
imposed were proportionate to the offenses and this offender, as required by the Supreme
Court’s decision. He contends that the trial court’s reference to the 25-year minimum penalty in
MCL 750.520b(2), as amended, is inadequate to comply with the Supreme Court’s directive
because “[a] mandatory minimum is the antithesis of proportionate sentencing.” We disagree.
Unlike what occurred at defendant’s original sentencing, the trial court on remand
provided an “explanation for the extent of the departure that was independent of the reasons
given to impose a departure sentence.” Smith, supra at 305-306. Although the court did not
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compare the sentences with the guidelines ranges for other Class A offenses, that method is only
a “potential means” to offer a justification for the extent of a departure and is not required. Id. at
306, 309. The trial court here explained why it chose the particular degree of departure and
provided substantial and compelling reasons to justify the departure from the appropriate
guidelines range. The trial court’s articulation of its reasons is sufficient to allow adequate
appellate review. The trial court was “not required to use any formulaic or ‘magic’ words” to
justify its departure. People v Babcock, 469 Mich 247, 259 n 13; 666 NW2d 231 (2003). “The
requirement that the trial court justify the extent of the departure is not overly burdensome. The
court need only reasonably comply with the statutory articulation requirement in order to
facilitate appellate review,” Smith, supra at 315, and to “further the legislative goal of
sentencing uniformity,” id. at 319. The trial court satisfied its obligation to articulate the reasons
for the sentences it imposed.
Defendant also argues that his sentences are disproportionate and notes that the Supreme
Court’s analysis of his original 30-year sentences and their relationship to the grid for Class A
offenses, is equally applicable to the 25-year sentences because both the 30-year (360-month)
and 25-year (300-month) sentences fall within the guidelines range only for E-VI, F-V, and F-VI
cells. He also cites several unpublished decisions of this Court referencing lesser sentences for
convictions of first-degree criminal sexual conduct, as well as People v Reincke (On Remand),
261 Mich App 264, 265; 680 NW2d 923 (2004), in which the trial court departed from the
sentencing guidelines range of 81 to 135 months and sentenced the defendant to 30 to 60 years of
imprisonment for a conviction of first-degree criminal sexual conduct. The reasons for the
departure in Reincke were the injuries to the three-year old child, which involved the tearing of
the tissue separating the vagina from the rectum, the child’s vulnerability, and the need to protect
society from the defendant. Id. at 268.
However, as this Court observed in Reincke, we are not to substitute our judgment for
that of the trial court. We must accord deference to the trial court’s determinations and
acknowledge the trial court’s extensive knowledge of the facts and the offender. Id. at 267-268.
An abuse of discretion exists only where the trial court selects an outcome that falls outside the
principled range of outcomes. Id. at 268. In this case, the trial court fashioned minimum
sentences that are consistent with the lowest minimum sentence deemed appropriate for an adult
offender who commits first-degree criminal sexual conduct against an individual less than 13
years old. In light of the Legislature’s recognition that such a sentence is appropriate in these
circumstances, regardless of the offender’s prior record, we conclude that the sentences chosen
by the trial court are within the range of principled outcomes, and therefore, not an abuse of
discretion.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
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