PEOPLE OF MI V RICHARD JAMES FARRELL (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 7, 2011
Plaintiff-Appellee,
v
No. 297318
Oakland Circuit Court
LC No. 2006-206284-FH
RICHARD JAMES FARRELL,
Defendant-Appellant.
Before: METER, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
After a second resentencing, defendant again appeals by right the sentence imposed on
his jury conviction of manslaughter with a motor vehicle, MCL 750.321. He was resentenced to
84 months to 22½ years in prison, which is a departure from the scored guidelines of 29 to 71
months. We affirm.
Defendant argues that on resentencing, the sentencing court again relied on inappropriate
factors to justify its departure sentence. We disagree.
On appeal, courts review the reasons given for a [sentence] departure for
clear error. The conclusion that a reason is objective and verifiable is reviewed as
a matter of law. Whether the reasons given are substantial and compelling
enough to justify the departure is reviewed for an abuse of discretion, as is the
amount of the departure. A trial court abuses its discretion if the minimum
sentence imposed falls outside the range of principled outcomes. [People v Smith,
482 Mich 292, 300; 754 NW2d 284 (2008) (citations omitted).]
A trial court must impose a minimum sentence within the sentencing guidelines range
unless there are substantial and compelling reasons for a departure and the court states those
reasons on the record. MCL 769.34(3); People v Lowery, 258 Mich App 167, 170; 673 NW2d
107 (2003). To be “substantial and compelling,” a reason must be both objective and verifiable.
People v Babcock, 469 Mich 247, 257; 666 NW2d 231 (2003). Additionally, the reason must
“keenly” or “irresistibly” grab a court’s attention and be of “considerable worth” in deciding the
length of a sentence. Id. A trial court may not base its departure on an offense characteristic that
was already taken into account in calculating the appropriate guidelines range unless it finds that
the characteristic has been given inadequate or disproportionate weight. MCL 769.34(3)(b).
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The offense variables pertaining to defendant’s sentencing were scored as follows: OV 3
(physical injury to victim)1 at 25 points, OV 5 (psychological injury to victim’s family member)
at 15 points, OV 6 (intent to kill or injure another) at 25 points, OV 9 (number of victims) at 10
points, and OV 19 (defendant interfered with the administration of justice) at 10 points. The trial
court then imposed a sentence that departed by 13 months from the sentencing guidelines.
In his first appeal, defendant challenged the scoring of OV 6 and 19 and this Court
affirmed those scores. Defendant also challenged his departure sentence, primarily arguing that
the factors the trial court considered were already taken into account in the scoring of the offense
variables. This Court concluded that defendant’s poor driving record, as well as the number of
witnesses, including children, to the victim’s death were proper factors supporting the trial
court’s upward departure. However, the court improperly relied on some offense characteristics
already taken into account in scoring OV 6; namely, defendant’s speed, failure to brake, and
familiarity with the route. Thus, the matter was remanded for resentencing or rearticulation of
the reasons for departure. People v Farrell, unpublished opinion per curiam of the Court of
Appeals, issued February 26, 2008 (Docket No. 273907). However, again, the trial court relied
on the same invalid three factors and this Court, after defendant’s second appeal, remanded the
matter to the trial court for resentencing before a different judge. People v Farrell, unpublished
opinion per curiam of the Court of Appeals, issued November 3, 2009 (Docket No. 288144).
In this, defendant’s third appeal, he argues that the sentencing court again failed to
articulate substantial and compelling reasons to justify his departure sentence. The rationale for
the sentencing court’s decision to render the same departure sentence as the initial sentencing
judge was as follows:
The court is departing from the guidelines due to the fact that the life of a
young child was taken here. In addition to her life being taken there were other
children that were put in potential danger of being hurt or harmed due to the
defendant’s actions.
In addition to that they witnessed this horrific act. The defendant did not
appear to slow down, he violated the traffic laws in what he was doing. His
traffic record is an example of the fact that he has no regard for the traffic laws of
this state and had he slowed down and not attempted to pass I believe that the
child in this matter would be alive today. And based upon those factors this court
is deviating from the sentencing guidelines.
Thus, the specific factors cited by the sentencing court included: (1) the fact that the victim who
was killed was a young child, (2) the other people who were in potential danger because of
defendant’s actions were also children, (3) witnesses to this “horrific act” were children, and (4)
at the time defendant struck the victim, he was violating traffic laws as he had several times in
the past, illustrating his lack of regard for the traffic laws in this state which directly led to the
victim’s death.
1
See People v Houston, 473 Mich 399, 405-407; 702 NW2d 530 (2005).
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First, defendant argues that the sentencing court relied on the same invalid reasons cited
twice before—defendant’s speed and failure to brake. However, the court’s statements in that
regard were not, as defendant suggests, a third improper attempt to use factors scored under OV
6 as a reason to depart. See Farrell, unpub op at 5. Instead, when read in context, this was part
of the sentencing court’s analysis of the egregious circumstances of this crime that involved a
school bus that had its flashing yellow warning lights activated at the time defendant attempted
to pass it by entering into the center lane in violation of the law. The court noted that
defendant’s actions were consistent with his prior traffic record which illustrated his lack of
regard for traffic laws, and that his disregard for traffic laws directly led to the victim’s death.
This is akin to agreeing with the initial sentencing court that defendant’s very poor driving
record was an objective and verifiable reason to depart. And the court did not abuse its
discretion in concluding that this reason was substantial and compelling enough to justify a
departure sentence. See Smith, 482 Mich at 300.
Second, defendant argues that the trial court should not have considered “that the life of a
young child was taken here” and that other children were put in danger. Defendant claims that
the death of a person was already considered in the guidelines and as an element of the offense.
And, defendant argues, the fact that other persons were placed in danger was considered in OV
9.
However, neither OV 3 nor MCL 750.321 takes into account the age of the victim who
was killed. And OV 9 does not take into account the young ages of the other victims who were
placed in danger. Thus, these characteristics were not already taken into consideration in
calculating the guidelines. See MCL 769.34(3)(b). Further, age is both objective and verifiable.
See Babcock, 469 Mich at 257-258. And the young age of all of the victims involved, in light of
the egregious circumstances presented, could keenly grab a court’s attention and be of
considerable worth in deciding the length of the sentence. See id. at 272. Again, a school bus
had its flashing yellow warning lights activated at the time defendant entered into the center lane
in an attempt to pass the bus in violation of the law, struck the child, and dragged her body 138
feet in front of all of the other children that had been waiting for, and that were on, the bus. The
record reflects that the sentencing court clearly considered the offense variables of the guidelines
insufficient to account for the “horrific” circumstances presented in this case. We conclude that
the sentencing court did not abuse its discretion when it held that substantial and compelling
reasons justified the departure sentence rendered in this matter. See Smith, 482 Mich at 300.
Affirmed.
/s/ Patrick M. Meter
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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