PEOPLE OF MI V SALLY ANN BENNETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2008
Plaintiff-Appellee,
v
No. 277682
Saginaw Circuit Court
LC No. 01-020409-FH
SALLY ANN BENNETT,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Bandstra and O’Connell, JJ.
PER CURIAM.
Defendant Sally Ann Bennett pleaded guilty to one count of embezzlement by an
administrator, executor, or guardian, MCL 750.176, after she appropriated and gambled away
over $100,000 from the estate of Helen Oomen. On August 27, 2002, defendant was sentenced
as a habitual offender, second offense, MCL 769.10, to 7 to 15 years’ imprisonment, with
185 days’ credit for time served, and she was ordered to pay $109,964.20 in restitution. The
prison term imposed was an upward departure from the guidelines range of zero to seven
months. This case comes to us on remand from our Supreme Court “for consideration as on
leave granted of whether the defendant’s sentence is invalid, see MCR 6.508(D)(3)(b)(iv);
People v Kimble, 470 Mich 305, 314 n 6 (2004); and People v Babcock, 469 Mich 247 (2003).”
People v Bennett, 480 Mich 1118; 745 NW2d 765 (2008). We affirm.
Defendant argues that her sentence is invalid because the trial court departed from the
appropriate sentence range without a substantial and compelling reason, and because the extent
of the departure renders the length of the sentence grossly disproportionate to the seriousness of
the offense and the offender. We disagree. The trial court had substantial and compelling
reasons for sentence departure, and the extent of departure was justified under the circumstances
presented here.
We review for an abuse of discretion a trial court’s denial of relief from judgment under
MCR 6.508. People v Ulman, 244 Mich App 500, 508; 625 NW2d 429 (2001). A defendant
may not base a motion for relief from judgment on an issue that could have been raised on direct
appeal unless the defendant demonstrates both good cause for failing to raise the issue on appeal
and actual prejudice. MCR 6.508(D)(3). “Actual prejudice” includes situations where, “in the
case of a challenge to the sentence, the sentence is invalid.” MCL 6.508(D)(3)(b)(iv). Here, we
find that defendant has shown good cause for failing to raise the issue of departure on direct
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appeal because appellate counsel’s delayed application for leave to appeal was dismissed as
untimely. Thus, we consider whether defendant has demonstrated actual prejudice.
“[A] judge’s discretion to depart from the range stated in the legislative [sentencing]
guidelines is limited to those circumstances in which such a departure is allowed by the
Legislature.” People v Babcock, 469 Mich 247, 255; 666 NW2d 231 (2003), quoting People v
Hegwood, 465 Mich 432, 439; 636 NW2d 127 (2001).
If the upper limit of a guidelines range is 18 months or less, the court must impose an
intermediate sanction unless there are substantial and compelling reasons to sentence the
defendant to imprisonment. MCL 769.31(b); MCL 769.34(4); People v Harper, 479 Mich 599,
617-618; 739 NW2d 523 (2007). A substantial and compelling reason exists only in exceptional
cases. Babcock, supra at 258. The reason must be “objective and verifiable,” it must “keenly or
irresistibly [grab] [the court’s] attention,” and it must be “of considerable worth in deciding the
length of a sentence.” Id. (internal citations and quotation marks omitted). “To be objective and
verifiable, a reason must be based on actions or occurrences external to the minds of those
involved in the decision, and must be capable of being confirmed.” People v Horn, 279
Mich App 31, 43 n 6; 755 NW2d 212 (2008). Furthermore, the substantial and compelling
reason articulated by the trial court “must justify the particular departure at issue.” People v
Havens, 268 Mich App 15, 17; 706 NW2d 210 (2005); see also MCL 769.34(3).
A court must articulate its reasons for imposing its sentence on the record at the time of
sentencing. Babcock, supra at 258-259. In the absence of such articulation, this Court must
remand the case to the trial court for resentencing or rearticulation. Id. at 259. When the trial
court articulates multiple reasons for its departure, we must examine each one. Id. at 260. If we
find that some, but not all, of the articulated reasons are substantial and compelling, we must
then “determine whether 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. If we are unable
to make either determination, “[we] must remand the case to the trial court for resentencing or
rearticulation of its substantial and compelling reasons to justify its departure.” Id. at 260-261.
Here, the trial judge’s characterizations of defendant’s conduct as “deplorable,”
“appalling,” and “outrageous” are subjective and do not constitute substantial and compelling
reasons for departure. See Havens, supra at 18 (observing that a court’s “characterization of
defendant’s offenses as ‘egregious’ is a subjective determination, is not objective and verifiable,
and cannot be used as a substantial and compelling reason for departing from the sentencing
guidelines”). Beyond that, the judge justified the departure by calling attention to the
manipulative nature of defendant’s actions, to the effect of her actions on the victim’s family,
and to defendant’s prior criminal record.
In calculating defendant’s sentence range under the guidelines, the court took into
account conduct governed by offense variable (OV) 10 (exploitation of a vulnerable victim).
MCL 777.40(1). Defendant received ten points under OV 10 for exploiting “a victim’s physical
disability, mental disability, youth or agedness, or a domestic relationship” or for abusing
defendant’s “authority status.” MCL 777.40(1)(b). Thus, because the manipulative nature of
defendant’s actions was already taken into account by the sentencing guidelines, the court could
only rely on this offense characteristic as a reason for departure if it found that the variable was
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given inadequate or disproportionate weight. We believe that the trial court properly made this
determination.
The victim was an elderly woman, and the embezzled funds constituted the vast bulk of
her assets. The victim’s family was depending on this inheritance for their financial security
and, in the absence of receiving any money from the victim’s estate after her death, they were
forced to declare bankruptcy. At sentencing, the judge stated that defendant “cozied up to an old
lady, got [her]self appointed as her representative for her estate,” accepted a car from her, and
then “betrayed somebody whose very life was in [defendant’s] hands.” The trial judge also
justified her decision to depart from the sentence range by stating that, although defendant was
authorized to pay the victim’s bills, she used her access to the victim’s finances to steal the
victim’s money and the children’s inheritance, leaving the family without even enough money to
pay for the victim’s funeral. The judge concluded that defendant had “devastated” the victim’s
family. Further, the trial court judge also gave defendant a week to determine if she would be
able to pay back the $109,964.20 in restitution that she owed the victim’s family, and the judge
sentenced defendant to prison after defendant expressed no indication that she would be able to
repay the victim’s family. The financial impact of defendant’s actions on the victim’s family is
objective and verifiable. Defendant’s conduct displayed complete disregard for the victim’s
family and the victim’s wishes regarding her family. The trial court did not abuse its discretion
when it identified the predatory nature of defendant’s conduct as a justification for an upward
departure from the sentencing guidelines.
The court also appears to have relied on defendant’s prior criminal record, referring to
her as a “seasoned criminal.” Prior record variables (PRVs) “take into account the offender’s
criminal history.” Babcock, supra at 264. At sentencing, the judge enumerated defendant’s prior
convictions for welfare fraud over $500 and welfare fraud for failing to inform in 1981, as well
as the prosecution arising from her tender of an insufficient funds check, which had only been
resolved when defendant repaid the money. However, defendant’s welfare fraud convictions
could not be used in calculating her PRV score because these prosecutions and convictions
occurred over ten years before. See MCL 777.50(1). Therefore, defendant’s prior criminal
history was not taken into account by the guidelines.
Because the guidelines did not adequately address defendant’s criminal history, this
history also constituted a substantial and compelling reason for the trial court’s departure from
the recommended sentence range. Prior convictions are objective and verifiable, and they may
be sufficient to permit a court to conclude that defendant demonstrates an inability to “conform
[her] conduct to the laws of society.” People v Hansford (After Remand), 454 Mich 320, 326;
562 NW2d 460 (1997). Further, defendant’s prior criminal history indicates that she is
continuing along a pattern of fraudulent behavior spanning much of her adult life, and that her
earlier punishment for committing similarly deceitful acts did not cause her to permanently
reform her behavior.
Further, the trial court did not abuse its discretion when it concluded that the extent of its
departure was justified in this instance. “The premise of our system of criminal justice is that,
everything else being equal, the more egregious the offense, and the more recidivist the criminal,
the greater the punishment.” Babcock, supra at 263. Both defendant’s prior criminal history and
the repulsive nature of her offense were not adequately taken into account by the guidelines.
Further, as the trial court noted at sentencing, the level of injustice that occurred as a result of
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defendant’s actions warranted a departure from the guidelines to the extent imposed by the trial
court. Therefore, the trial court adequately explained both the nature and the extent of the
departure, and it did not abuse its discretion when it sentenced defendant to 7 to 15 years’
imprisonment.1 People v Smith, 482 Mich 292, 293; 754 NW2d 284 (2008).
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
1
The concurring opinion states, without citation to authority, that the Legislature has determined
that prior offenses that are not scored under the guidelines cannot be used as a basis for a
departure from the recommended sentence. We respectfully disagree. Unscored prior
convictions are objective and verifiable, and in this case, the nature of the prior convictions
properly grabbed the trial court’s attention. Therefore, the trial court appropriately identified
defendant’s prior convictions as a substantial and compelling reason to depart from the
guidelines.
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