PEOPLE OF MI V SMITH BEACH ATWOOD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 7, 2002
Plaintiff-Appellant,
v
No. 232361
Washtenaw Circuit Court
LC No. 99-012337-FC
SMITH BEACH ATWOOD,
Defendant-Appellee.
Before: Sawyer, P.J., and Murphy and Hoekstra, JJ.
PER CURIAM.
On appeal by leave granted, the prosecution challenges defendant’s sentence of twelve to
eighteen months’ imprisonment, which the trial court imposed for defendant’s plea-based
conviction of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b). We vacate
defendant’s sentence and remand.
This case arises from defendant’s fifteen-year-old adopted daughter’s allegations that
defendant had committed several acts of sexual conduct, including one act of digital penetration,
with her. Defendant pleaded no contest to one count of CSC I and to six counts of seconddegree criminal sexual conduct (CSC II), MCL 750.520c(1)(b). In a prior appeal, the prosecutor
challenged defendant’s initial sentence, imposed pursuant to a Cobbs1 agreement, of a term of
one day to one year and a day for the CSC I conviction, but did not challenge the trial court’s
sentence of five years’ probation for the CSC II convictions. This Court held that the CSC I
sentence was “disproportionately lenient and therefore invalid” and vacated that sentence and
remanded for resentencing. People v Atwood, unpublished opinion per curiam of the Court of
Appeals, issued October 27, 2000 (Docket No. 224315). On remand, after the trial court
indicated that it was inclined to impose a term of twelve to eighteen months’ imprisonment for
the CSC I conviction, defendant affirmed his no contest plea, and the trial court imposed the
stated sentence.
In the instant appeal, the prosecutor challenges the reasons on which the trial court relied
in making a downward departure from the sentencing guidelines. Because the offense that
1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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formed the basis for the CSC I conviction occurred after January 1, 1999, the legislative
sentencing guidelines apply to defendant’s sentence. MCL 769.34(2).
Under the legislative sentencing guidelines act, a court must, in most instances, impose a
sentence in accordance with the recommended sentencing guidelines range. MCL 769.34(2);
People v Babcock, 244 Mich App 64, 72; 624 NW2d 479 (2000) (Babcock I). A court may
depart from the sentencing guidelines range if it has a substantial and compelling reason to do so
and states on the record the reasons for departure. MCL 769.34(3); Babcock I, supra. Reasons
for departure must be objective and verifiable. Id. at 75-76, quoting People v Fields, 448 Mich
58, 77-78; 528 NW2d 176 (1995). In reviewing a departure from the guidelines range, the
existence of a particular factor is a factual determination subject to review for clear error, the
determination that the factor is objective and verifiable is reviewed as a matter of law, and the
determination whether the factors considered constituted substantial and compelling reasons for
departure is reviewed for an abuse of discretion. People v Babcock, __ Mich App __, __, n 3; __
NW2d __ (2002) (Babcock II); Babcock I, supra, citing Fields, supra. The Fields Court
“instructed that when both appropriate and inappropriate factors are considered, the case should
be remanded for the sentencing court to determine whether it finds substantial and compelling
reasons to deviate from the statutory minimum sentence solely on the basis of appropriate
factors.” People v Perry, 216 Mich App 277, 282; 549 NW2d 42 (1996), citing Fields, supra at
80.
In this Court’s prior decision, we agreed with the prosecution that the trial court imposed
a disproportionately lenient sentence for the CSC I conviction, and thus we vacated the sentence
and remanded for further proceedings. Unfortunately, we must again vacate the sentence
imposed and remand for further proceedings. Although the trial court presented a lengthy
explanation of its reasons for imposing the given sentence, it failed to limit its reasons to those
that are objective and verifiable. Fields, supra; Babcock I, supra. The trial court did, in fact,
state on the record objective and verifiable reasons for a downward departure from the
sentencing guidelines range, all of which are appropriate here, including age, absence of previous
criminal history, absence of a history of violence, an excellent work history, strong family
support, immediate admission of responsibility and cooperation with the police, and a history of
substantial work within the community and school system, see Fields, supra at 76-77, but it
expressly stated that these reasons were “not the substance” of its departure. Instead, the trial
court focused on the “best interest of the victim”:
The substance upon which the [c]ourt was basing its departure on [in the
prior sentencing] is the same thing that the [c]ourt is basing its departure on today
for the most part and that is the best interest of this victim. [Emphasis supplied.]
In determining the best interest of the victim, the trial court relied on psychological reports and
the victim’s own statement. Regardless of the nature of the information on which the trial court
relied, the best interest of the victim is not an objective and verifiable factor. Rather, the trial
court’s evaluation of the best interest of the victim involves a subjective determination of what
the trial court thinks or believes would be best under the given circumstances. Thus, as a matter
of law, the trial court erred in focusing on the best interest of the victim as the basis for a
departure from the sentencing guidelines. Babcock I, supra at 75-76.
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To the extent that the trial court may have relied to some degree on the previously stated
objective and verifiable factors, the trial court failed to provide an explanation why it considered
these factors.2 While our Supreme Court has cited these factors as potentially substantial and
compelling reasons for departure in Fields, supra, that case “does not authorize the mere listing
of garden variety ‘factors,’ even objective and verifiable ones, as a means of complying with
legislative intent. . . . [T]he sentencing court must also specifically articulate the reasons why the
factors it identifies and relies upon collectively provide ‘substantial and compelling’ reasons to
except this case from the legislatively mandated sentencing regime.” People v Daniel, 462 Mich
1, 8-9; 609 NW2d 557 (2000), quoting People v Johnson (On Remand), 223 Mich App 170, 173174; 566 NW2d 28 (1997).
Because the trial court principally relied on an inappropriate factor that was not objective
or verifiable in conjunction with appropriate factors, Perry, supra, and failed to articulate why
the appropriate factors cited constituted substantial and compelling reasons for departure in this
case, Daniel, supra, we again vacate defendant’s CSC I sentence and remand for resentencing on
the CSC I conviction only. MCL 769.34(11).3 However, we find no support in the record for the
prosecutor’s argument that the case should be remanded to a different circuit, nor do we find it
necessary for resentencing to be before a different judge. People v Hill, 221 Mich App 391, 398;
561 NW2d 862 (1997); People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986).4
Defendant’s sentence on the CSC I conviction is vacated. We remand for resentencing in
accordance with this opinion. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Joel P. Hoekstra
2
We note that the trial court did address some, but not most, of these factors in its comments at
the first sentencing and at the resentencing incorporated those comments by reference.
3
We acknowledge that defendant has served the maximum term imposed on remand, and has
been released from custody. However, a court has the authority to determine whether a sentence
was invalid and to correct and invalid sentence, even after the defendant has been discharged
from the invalid sentence. People v Hill (After Remand), 202 Mich App 520, 523-524; 509
NW2d 856 (1993). Defendant is entitled to credit for all time served on the invalid sentence. Id.
at 524; People v Gregorczyk, 178 Mich App 1, 4; 443 NW2d 816 (1989).
4
We reject defendant’s two arguments concerning alternative grounds for affirming the trial
court’s sentences. First, we disagree that the law of the case limits this Court’s consideration in
this appeal. “When a case is remanded from [this] Court because the entire sentence is invalid,
every aspect of the sentence is before the judge de novo unless the remand order indicates
otherwise.” People v Williams (After Second Remand), 208 Mich App 60, 65; 526 NW2d 614
(1994). To the extent that defendant argues that this Court should not undertake a
proportionality review of defendant’s sentence, we note that under People v Hegwood, 465 Mich
432, 437, n 10; 636 NW2d 127 (2001), “there can be varying degrees of substantial and
compelling circumstances that must be considered in reviewing the extent of departure,” and “the
principle of proportionality can be considered concerning the extent of a departure.” Babcock II,
supra at __.
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