PEOPLE OF MI V JAMES ALLEN ROSS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 11, 2003
Plaintiff-Appellee,
v
No. 227964
St. Clair Circuit Court
LC No. 99-002685-FH
JAMES ALLEN ROSS,
Defendant-Appellant.
ON REMAND
Before: Smolenski, P.J., and Neff and White, JJ.
PER CURIAM.
This case returns to us on remand from our Supreme Court1 for reconsideration in light of
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), (Babcock III). We adopt our previous
holding and affirm defendant’s convictions of felonious assault, MCL 750.82, and assault with
intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and sentence for
felonious assault. However, in light of Babcock III, we remand for resentencing with regard to
defendant’s conviction of AWIGBH.
The minimum guidelines’ sentencing range for the AWIGBH conviction was 15 to 34½
months’ imprisonment. The trial court departed upwards, sentencing defendant to a minimum
term of forty-seven months, citing (1) defendant’s failure to accept responsibility for his criminal
acts, (2) the fact that defendant was the aggressor, (3) the excessive violence of defendant’s
actions, and (4) inadequacy of the guidelines to protect the community. Babcock III provides the
framework by which we must review the guidelines departure. Applying the relevant portions of
the framework laid out in Babcock III, supra at 272-274, we reach the following conclusions:
1. Of the factors relied upon as compelling reasons for departure, some were objective
and verifiable, while one was not. The transcript of defendant’s allocution at sentencing
confirms clearly that he did not accept responsibility for his criminal acts and the testimony at
trial just as clearly confirmed that he was the aggressor. As noted in our previous opinion,
1
People v Ross, Order of the Michigan Supreme Court, (Docket No. 121967, issued October 3,
2003).
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[w]e find that the trial court articulated a substantial and compelling
reason for a departure, defendant’s violent behavior—the violence with which
defendant perpetrated the act. Although this is accounted for in MCL 777.33, the
trial court expressly found that the statutory sentencing guidelines did not
adequately address that factor.2
These three factors also “grab our attention” as justifications for the length of the sentence. Id. at
272. However, whether the guidelines minimum was inadequate to protect the community from
defendant is not so susceptible of objective and verifiable confirmation, and we cannot determine
whether the trial court would have departed to the same degree on the basis of the substantial and
compelling reasons alone.
2. The trial court did not explain why the substantial and compelling reasons for the
departure justified the particular departure or how the departure contributed to a more
proportionate sentence than provided by the guidelines.
Therefore, we remand to the trial court for resentencing on the AWIGBH charge in light
of Babcock III. The trial court is directed to conduct resentencing within twenty-eight days of
the issuance of this opinion, and to issue its opinion and/or order within fourteen days after
completion of the proceedings. We retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Helene N. White
2
It should also be noted that defendant had seventeen prior misdemeanor convictions, only seven
of which were taken into account in the calculation of the sentencing guidelines and that of the
seventeen prior convictions four were for assaultive crimes, one was for the unlawful discharge
of a firearm, and one was for fleeing and eluding.
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