PEOPLE OF MI V LATOSHA ANN CARTER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 10, 2009
Plaintiff-Appellant,
v
No. 279911
Kalamazoo Circuit Court
LC No. 05-002384-FH
LATOSHA ANN CARTER,
Defendant-Appellee.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
FORT HOOD, J. (dissenting).
I respectfully dissent. At the beginning of the sentencing hearing, it was agreed that the
minimum guideline sentencing range was 51 to 85 months. However, the probation department
recommended a substantial departure from the guidelines range of two years’ probation.
Counsel for defendant urged the sentencing court to follow the recommendation of the probation
department, noting the letters of support from defendant’s family and community that outlined
her change in lifestyle, her employment record, her achievement of an associate’s degree and
pursuit of a bachelor’s degree, and her involvement in the community. On the contrary, the
prosecutor recommended that the minimum sentence for each offense be served consecutive to
one another. The trial court stated:
Ms. Carter, in sentencing you I am attempting to balance punishment,
rehabilitation, the protection of society, and the deterrent effect of the sentence.
I’m also considering whether to depart downward from the guidelines in light of
the recommendation presented to me.
As Counsel have noted, I presided at the trial in this case so I have a fairly
good sense of what occurred.
There are a number of things that suggest rehabilitation in your case is
very likely. Those include the offense occurred some years ago now. You have
no history of conviction since then. Prior to that time you have a limited history
as a juvenile.
As the report points out, you’re employed. You have been for some time.
You’ve earned an Associate’s degree; you’re working on an advanced degree.
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No evidence of any substance abuse or issues like that in your life.
The Court has received letters of support for you that outline both your
personal efforts and efforts in the community.
On the other hand, one of the things I find troubling, having listened to the
evidence and even considering the report, is you seem to have almost no sense of
the trouble you were getting yourself into potentially and the risk to others of the
conduct you were engaging in, which involved the delivery of large quantities of
controlled substance.
The Court is also mindful that – although it’s not considered by the
guidelines – in essence, based on the proofs, these transactions were organized by
law enforcement, as the Court gathered from the proofs, basically in the hope to
kind of work through you to get to somebody else who was, frankly, using you,
who was putting you in the position of great personal risk so they could make
money.
Ms. Carter, I have decided, reflecting on all of this, that I’m going to
follow the recommendation. The Court recognizes this is a major departure from
the guidelines.
The Court finds there are substantial and compelling reasons to do so, all
of which are objective.
First, it is the recommendation of an experienced agent who scored the
guidelines and was well aware of them.
I am departing based on your youth, relative absence of prior record –
which the Court recognizes is scored by the guidelines – and, most importantly,
your conduct since the offense.
While there’s no evidence that you cooperated with law enforcement in
any way, on a personal level you’ve done everything it looks like you reasonably
could have to get your life in order. You are successful. You’re pursuing further
education that should only make you more successful.
I find all of these compelling reasons that in the Court’s view fall within a
range of principled outcomes; and I note, particularly, this is an outcome
recommended by the agent who spent some time preparing this report.
Therefore, it is the sentence of this Court that you be placed on probation
for two years. … I am adding … that you serve 12 months in the county jail
subject to review at the end of probation with credit for three days served.
Appellate review of a sentence is not de novo, but limited. “[T]he trial court is optimally
situated to understand a criminal case and to craft an appropriate sentence for one convicted in
such a case.” People v Babcock, 469 Mich 247, 267; 666 NW2d 231 (2003). Therefore, the trial
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court may depart from the sentencing guidelines range when a substantial and compelling reason
exists for the departure. Id. The decision to depart may be based on an offense characteristic or
an offender characteristic previously incorporated into the guidelines if the sentencing court finds
that the characteristic has been given inadequate or disproportionate weight. Id. at 267-268; see
also MCL 769.34(3)(b). To depart from the sentencing guidelines range, the sentencing court
must state the substantial and compelling reason to depart on the record. MCL 769.34(3).
The Legislature gave the sentencing court the responsibility of making the difficult
determination of rendering the appropriate sentence “largely on the basis of what has taken place
in its direct observation.” Babcock, supra at 268. “Because of the trial court’s familiarity with
the facts and its experience in sentencing, the trial court is better situated than the appellate court
to determine whether a departure is warranted in a particular case.” Id. Review de novo would
allow appellate judges to substitute their own judgment for that of the trial court. Id. Therefore,
an abuse of discretion standard is applied to sentencing decisions, which acknowledges that there
will be no single correct outcome because there may be more than one reasonable and principled
outcomes. Id. at 269. “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.” Id. That is, when the sentencing court chooses an outcome falling
outside the range of outcomes, an abuse of discretion occurs. Id.
The appropriateness of a sentence should take into account four factors: (1)
rehabilitation, (2) deterrence, (3) the protection of society, and (4) punishment. People v Schultz,
435 Mich 517, 531-532; 460 NW2d 505 (1990). “Indeterminate sentences are to be individually
tailored, and the availability of judicial discretion is an integral aspect of indeterminate
sentencing[.]” Id. at 531. “The sentencing courts of this state are authorized to exercise
discretion and, in appropriate cases presenting substantial and compelling circumstances, to
depart from the Public Health Code’s mandatory minimum terms.” Id. A defendant’s
employment history is not taken into account in the sentencing guidelines and may be considered
as an objective and verifiable reason to depart from the guidelines, although taken alone, it may
not constitute a substantial and compelling reason to depart from the guidelines. People v
Young, 276 Mich App 446, 456; 740 NW2d 347 (2007). Similarly, the age of a defendant, taken
alone, may not warrant a substantial and compelling reason to depart. Id.
In the present case, the sentencing court presided over a trial where defendant and her
boyfriend engaged in a drug transaction with a confidential informant. The confidential
informant contacted police in an attempt to obtain favors for a relative who was in trouble with
law enforcement. At the commencement of trial, it was learned that the confidential informant
was never subpoenaed to appear at trial and refused to appear. The trial court ultimately
excluded the earlier testimony by the confidential informant, citing the lack of effort by police to
obtain his appearance at trial. Also at the start of trial, it acknowledged that a plea deal had been
offered to defendant that would allow for the dismissal of one count of delivery of 50 or more
but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii), and a sentencing recommendation
of probation, with the prosecutor remaining silent as to jail time. At trial, the police officer who
served as the liaison to the confidential informant acknowledged that he tried to get defendant to
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cooperate with police against her boyfriend. The police officer testified that defendant’s
boyfriend1 was more culpable than defendant, and she merely served as a “middleman” for him.
Although the offenses occurred in April 2004, the trial did not take place until June 2007.
Between the time of the offenses and the time of trial, defendant had earned an associate’s
degree in business and held a part-time job at Borgess Medical Center. She was continuing her
education in pursuit of a bachelor’s degree. Defendant had since given birth to a child and was
the primary caregiver. She also served as a tutor and mentor to children with behavioral and
emotional disabilities in the Kalamazoo Public Schools. These factors were all objective and
verifiable and documented by letters of support submitted by her supervisor and administrator at
the school.
In the present case, defendant was given the same sentence that was recommended at the
start of trial. She should not be penalized for exercising her right to a jury trial. Moreover, it
was clear that the subject of investigation was not defendant, but her boyfriend. Defendant’s
age, employment, and educational development were objective and verifiable factors that when
taken together with the goal of rehabilitation justified a downward departure. On this record, I
cannot conclude that the trial court abused its discretion.
/s/ Karen M. Fort Hood
1
In the record, it was learned that defendant’s boyfriend was detained in another jurisdiction
facing drug charges.
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