PEOPLE OF MI V MARCUS FRANKLIN JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 9, 2003
Plaintiff-Appellee,
v
No. 237729
Genesee Circuit Court
LC No. 01-007554-FC
MARCUS FRANKLIN JOHNSON,
Defendant-Appellant.
ON REMAND
Before: Saad, P.J., and Talbot and Wilder, JJ.
PER CURIAM.
The issue on remand is whether the trial court’s upward departure in sentencing
defendant comports with our Supreme Court’s holding in People v Babcock, 469 Mich 247; 666
NW2d 231 (2003). In People v Johnson, unpublished opinion per curiam of the Court of
Appeals, issued July 12, 2002 (Docket No. 237729), this Court affirmed defendant’s sentence of
35 to 60 years in prison for second-degree murder. In lieu of granting leave to appeal, our
Supreme Court vacated our judgment and remanded this case for reconsideration in light of
Babcock. Upon reconsideration, we affirm.
Defendant’s minimum sentence range was 13.5 to 22.5 years in prison. Under MCL
769.34(3), the statutory sentencing guidelines provide:
A court may depart from the appropriate sentence range established under
the sentencing guidelines set forth in [MCL 777.1 et seq.] if the court has a
substantial and compelling reason for that departure and states on the record the
reasons for the departure.
In Babcock, supra at 264-265, our Supreme Court again articulated our standard of review for
sentence departures:
“[T]he existence or nonexistence of a particular [sentencing] 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
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abuse of discretion.” [Quoting People v Babcock, 244 Mich App 64, 75-76; 624
NW2d 479 (2000), quoting People v Fields, 448 Mich 58, 77-78; 528 NW2d 176
(1995).]
The Supreme Court also explained the abuse of discretion standard in Babcock, supra at 269:
At its core, an abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will
be more than one reasonable and principled outcome. When the trial court selects
one of these principled outcomes, the trial court has not abused its discretion and,
thus, it is proper for the reviewing court to defer to the trial court’s judgment. An
abuse of discretion occurs, however, when the trial court chooses an outcome
falling outside this principled range of outcomes. [Citations omitted.]
Here, the trial court articulated the following reasons for imposing a sentence that
exceeded the minimum guidelines range: the savage nature of the killing and the overall
circumstances of the case, including the age of the victim and the movement of the victim to an
isolated location, and the trauma to the victim’s family.
The trial court did not clearly err in its articulation of the factors for sentencing departure.
As the record clearly shows, defendant and co-defendant, Louis Jones, went to the fourteen-yearold victim’s house with the purpose of hurting him. Defendant and Jones walked the victim to a
secluded tunnel in a nearby park. Defendant argued with the victim and, without physical
provocation, defendant stabbed him with a knife multiple times in the face, neck and chest.
After the victim fell to the ground, screaming, and after Jones kicked the victim in the head,
defendant again stabbed the victim. Defendant and Jones covered the victim with a blanket and
Jones continued to kick the victim in the head. Defendant and Jones then dragged the victim’s
body to a river, and threw it in. Defendant also admitted to “stomping” on the victim and
testified that it was his intent to kill the victim during the assault. Clearly, the factors cited by
the trial court regarding the heinous nature of the crime were supported by the record. Moreover,
the trial court’s finding regarding the pain suffered by the victim’s family was also clearly
supported through statements made by the young victim’s mother and the father’s statements set
forth in defendant’s presentence investigation report.
We also hold, as a matter of law, that the factors cited by the trial court are objective and
verifiable. “The phrase ‘objective and verifiable’ has been defined to mean that the facts to be
considered by the court must be actions or occurrences that 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 Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). On the basis of
the record evidence, we conclude that the factors were confirmed by information in the record.
Regarding whether the factors constitute substantial and compelling reasons for the
departure, the reason must be one that “ ‘keenly’ or ‘irresistibly’ grabs our attention”; is “ ‘of
considerable worth’ in deciding the length of a sentence”; and “exists only in exceptional cases.”
Babcock, supra at 258, quoting Fields, supra at 62, 67-68. The guidelines also state, pursuant to
MCL 769.34(3)(b), that “[t]he 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
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investigation report, that the characteristic has been given inadequate or disproportionate
weight.”
The offense variables take into account the factors cited by the trial court as substantial
and compelling reasons for departure. Defendant scored fifty points for OV 7, “aggravated
physical abuse,” because the “victim was treated with . . . excessive brutality . . . .” MCL
777.37(1)(a). Defendant scored fifteen points for OV 8, “victim asportation,” because the
“victim was asported to another place of greater danger or to a situation of greater danger . . . .”
MCL 777.38(1)(a). Defendant received ten points for OV 10, “exploitation of a vulnerable
victim,” because he “exploited [the] victim’s . . . youth . . . .” MCL 777.40(1)(b). Finally,
defendant scored fifteen points for OV 5, “psychological injury to a member of a victim’s
family,” because of the substantiated pain suffered by the victim’s parents and sibling.
The trial court did not abuse its discretion by finding that the viciousness of defendant’s
attack on the victim was given inadequate weight and that it constitutes a substantial and
compelling reason for an upward departure. The trial court described in detail the brutality of
defendant’s conduct and the extent of the victim’s injuries. While defendant scored 50 points for
excessive brutality, defendant’s conduct “keenly” and “irresistibly” grabs our attention and is “
‘of considerable worth’ in deciding the length of a sentence.” Babcock, supra. The repeated
stabbings to the young victim’s face and the continued “stomping” on his head clearly stands out
as a disgustingly brutal attack. Therefore, and “recognizing that the trial court was in the better
position to make such a determination and giving this determination appropriate deference,” we
will not substitute our judgment for that of the trial court in finding that the exceptional brutality
of defendant’s actions justified an upward departure. Babcock, supra at 268.
We also find that the trial court did not abuse its discretion by finding that the
psychological impact on the victim’s family was given inadequate weight by the statutory
variables and constituted a substantial and compelling reason for departure. Ample information
in the presentence investigation report and the statements at sentencing established that the
victim’s parents and sibling have suffered severe psychological trauma by the horrific
circumstances of the young victim’s death. Again, “because of the trial court’s familiarity with
the facts and its experience in sentencing,” the trial court was in a better position to make this
determination and we will not substitute our judgment for that of the trial court. Babcock, supra
at 268.
However, we hold that the trial court abused its discretion by, or failed to properly
articulate the basis for, ruling that the other factors constitute substantial and compelling reasons
for departure in this case. Specifically, the trial court did not to explain how the offense
variables fail to give adequate weight to the victim’s age and the asportation factor and how
those factors constitute substantial and compelling reasons for the departure.
As our Supreme Court directed in Babcock, supra at 260, “[b]ecause the trial court must
articulate on the record a substantial and compelling reason to justify the particular departure, if
the trial court articulates multiple reasons, and the Court of Appeals determines that some of
these reasons are substantial and compelling and some are not, the panel must determine the trial
court’s intentions.” Here, we conclude that “the trial court would have departed and would have
departed to the same degree on the basis of the substantial and compelling reasons alone.” Id.
The trial court’s remarks at sentencing point to its overriding and unmistakable purpose in
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imposing the increased sentence in this case - the shocking brutality of the crime and the
attendant psychological impact to the family. While the trial court cited the two other factors
during its explanation of the circumstances of the case, the court clearly found that defendant’s
intentional, unyielding and atrocious attack warranted the 12.5-year departure in this case.
Moreover, we are convinced that the sentence imposed by the trial court was proportionate to the
seriousness of the offense and offender and clearly did not fall outside the principled range of
potential outcomes in this case. Id. at 262-264, 269.
Affirmed.
/s/ Henry William Saad
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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