People v. Howard

Order Michigan Supreme Court
Lansing, Michigan

December 19, 2008 Clifford W. Taylor,
Chief Justice

136238 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Plaintiff-Appellee, Justices

v SC: 136238
COA: 282577
Jackson CC: 06-003949-FC
JUSTIN LEE HOWARD,
Defendant-Appellant.

_________________________________________/

On order of the Court, the application for leave to appeal the February 29, 2008
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we VACATE the sentence of the Jackson Circuit Court and
REMAND this case to that court for resentencing. The trial judge failed to offer any
valid explanation justifying why he chose to sentence the defendant to a term of life
imprisonment. People v Smith, 482 Mich 292 (2008). On remand, the trial court shall
articulate on the record why this level of departure is warranted or resentence the
defendant either within the appropriate sentencing guidelines range or articulate on the
record why a different level of departure is warranted.

We do not retain jurisdiction.

KELLY, J. (concurring).

I concur fully in the remand order. I write separately only to respond to concerns
raised by Justice Corrigan in her dissenting statement.

First, I emphasize that resentencing is required here because, as the remand order
states, the trial judge did not explain why he sentenced defendant to a term of life
imprisonment. The sentence was handed down before this Court released People v
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Smith;1 therefore, the trial judge may not have thought it necessary to express why
substantial and compelling reasons justified the departure he chose.2

I disagree with Justice Corrigan that the trial court cannot comply with Smith.
First, Justice Corrigan ties many of her concerns to Smith’s suggestion that a trial court
could compare its departure sentence “against the sentencing grid and anchor[] it in the
sentencing guidelines.” Justice Corrigan seizes on this language to argue that a
sentencing court could “mathematically justify almost any conceivable sentence” when
the only pertinent question is whether a substantial and compelling reason justifies the
sentence imposed.3

Smith’s mention of the sentencing grid provides guidance for sentencing courts. It
shows how reference to the grid may be helpful when explaining why a substantial and
compelling reason justifies a particular departure sentence. I note also that Smith merely
stated that “[o]ne potential means of offering such a justification is to place the specific
facts of a defendant’s crimes in the sentencing grid.”4 Later in the opinion, the Court
noted that “a trial court that is contemplating a departure is not required to consider
where a defendant’s sentence falls in the sentencing range grid.”5 This guidance assists,
rather than impedes, a sentencing court by showing one method of applying the
requirements of Smith to a sentence. Also, it undercuts Justice Corrigan’s implicit
assumption that a reviewing court will uphold a sentence only if the sentencing judge
refers to mathematical support for its departure sentence.

1
People v Smith, 482 Mich 292 (2008).
2
Justice Corrigan “cannot imagine” what more the trial judge could have done to comply
with the requirements of Smith and “fear[s] that providing meaningful further articulation
will be impossible in practice.” But the trial judge has not yet had the opportunity to
comply with Smith. I reiterate that “[a] sentence cannot be upheld when the connection
between the reasons given for departure and the extent of the departure is unclear.” Id. at
304.
3
MCL 769.34(3).
4
Smith, supra at 306 (emphasis added).
5
Id. at 309. Smith also repeatedly rejected “mathematical certainty,” “mathematical
precision,” or “a rigid mathematical formula” in determining sentences. See id. at 311,
315-316. Justice Corrigan complains that “[i]f a court cannot quantify the reasons for
departure because they are not contemplated by the guidelines,” the court will be unable
to explain why the particular departure from the guidelines is justified. But Smith allows
a sentencing court to use means to justify a departure sentence other than referencing the
sentencing grid or making a quantifiable analysis. For example, “a comparison of a
defendant’s characteristics and those of a hypothetical defendant whose recommended
sentence is comparable to the departure sentence is a valuable exercise.” Id. at 310.
 3

In this case, the sentencing judge referenced defendant’s previous sexual assaults
against this victim and against defendant’s sister. Defendant’s prior assault on his sister
was part of the decision to score five points for prior record variable (PRV 5), raising
defendant’s guidelines range. Justice Corrigan opines hypothetically that a sentencing
court could use the same prior crimes as the basis for a departure; she then notes that a
sentencing court that does so would contravene the statutory language by counting those
offenses twice in two mutually exclusive categories. Such a hypothetical situation is not
now before the Court. Moreover, I believe that effective appellate review would correct
any such abuse of discretion. By requiring judges to provide additional explanation for
departure sentences, Smith provides more, not less, record information from which an
appellate court can identify an abuse of discretion.

Second, Justice Corrigan recites the circumstances surrounding the charged
offense in this case that the judge mentioned as a basis for departure at sentencing. She
then concludes that using those facts to add a significant number of additional points to
defendant’s offense variable (OV) score is unhelpful. A mere 20 additional points would
place defendant in OV level VI—the highest level on the grid. Such a score would set
defendant’s minimum sentence under the guidelines at 10½ to 17½ years. Therefore,
Justice Corrigan reasons, the guidelines “do not directly contemplate a minimum
sentence over 17 ½ years for this defendant, regardless of how many additional
aggravating factors were present.”

However, Smith explicitly stated that, if a defendant had an OV score above 100,
“the court may render a proportionate sentence above the highest minimum for someone
with a similar PRV score” because “the Legislature did not contemplate a defendant with
such a high OV score, given that it used 100 OV points as the maximum for the grid.”6
Therefore, in this case, the trial judge’s burden would be to explain why the aggravating
factors justified a life sentence. I do not share Justice Corrigan’s concerns that Smith
effectively ties the hands of a sentencing judge who wishes to depart from the guidelines.
Certainly, in this case, the sentencing judge has yet to even attempt to justify the extent of
the departure.

Finally, Justice Corrigan provides a number of shocking details about the “cruelty”
that defendant inflicted on the victim. I agree that the crime was very disturbing.
However, I believe that her assertion that “a life sentence appears entirely appropriate in
light of defendant’s history and the circumstances of this crime” supports disagreement
with Smith7 more than her conclusion that the trial judge will be unable to conform to the
requirements of Smith.
6
Id. at 308-309.
7
Justice Corrigan’s dissent in Smith similarly discussed gruesome details of the crime
and the harm suffered, including many particulars not cited by the trial court as a basis
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I continue to believe that Smith’s interpretation that MCL 769.34(3) requires a
sentencing judge to justify the basis for “the departure it made and not simply any
departure it might have made”8 is appropriate. Moreover, it is mandated by the language
of the statute. Therefore, I concur in the Court’s order remanding this case for
resentencing in light of Smith.

WEAVER, J. (dissenting).

I would deny leave to appeal for the reasons set forth in my dissenting statement in
People v Smith, 482 Mich 292, 325-329 (2008).

CORRIGAN, J. (dissenting).

I would grant leave in this case and in that of the codefendant, see People v Kurtz,
482 Mich ___ (Docket No. 136262, order entered December 19, 2008), to reconsider the
burdensome requirements imposed on sentencing courts by People v Smith, 482 Mich
292 (2008). This child rape case demonstrates that Smith is unworkable. The trial judge
adequately justified the life sentence he imposed. Most significantly, I cannot fathom
how the trial court can comply with Smith. First, I cannot conceive of a way to justify the
departure mathematically by reference to the sentencing guidelines where the defendants’
rape of one defendant’s disabled 11-year-old daughter was “off the charts” with regard to
cruelty and where this defendant’s prior assaults on young girls militated in favor of a
term of life imprisonment. Second, in response to Justice Kelly’s concurring statement,
although Smith does not absolutely require a mathematical analysis, I cannot imagine
what more the trial judge here could have done to otherwise comply with Smith.

The assaults in this case were against the 11-year-old daughter of defendant’s
girlfriend, who is the codefendant in the underlying case. The child normally lived with

for departure at sentencing. Id. at 317; id. at 339-345 (Corrigan, J., dissenting). The
majority opinion in Smith agreed that the crime was “heinous,” id. at 311, but also
unequivocally stated: “A departure cannot be justified on the sole basis that a crime is
heinous. All criminal-sexual-conduct cases involving young children are heinous.” Id. at
311 n 42.
I note that this point is underscored by Justice Corrigan’s response to this
concurrence. She claims that “[r]emand for further articulation thus also wastes precious
time and scarce resources.” I can certainly appreciate her concerns about judicial
economy. But I would rather allow the trial judge to attempt to correctly apply the law
than deny leave to appeal solely because of hypothetical, and I believe unfounded,
concerns about Smith.
8
Smith, supra at 318 (emphasis in original).
 5

her father and paternal grandmother during the week, but stayed with her mother and
defendant on weekends. She is physically and mentally disabled as a result of cerebral
palsy and epilepsy. One weekend, her mother invited defendant to have sex with the girl,
as he had once before. Defendant admitted that he fondled the child’s breasts and
penetrated her vagina with his fingers and penis. The child asked him to stop while the
codefendant mother facilitated the rape by holding her daughter’s legs open and spitting
on defendant’s penis for lubrication. The defendants also used a cell phone to take
sexually explicit pictures of the child.

When the defendant mother returned the child to her grandmother’s home the next
day, the mother attempted to conceal the rape by telling the grandmother that the child
might “tell her a story.” The mother stated that she and defendant were having sex on the
floor next to the child’s bed when the child awoke, witnessed them, and began to cry.
Nonetheless, the grandmother took the child to the hospital after the child told her that
defendant had “stuck” his penis “inside [her] crotch.” The medical examination revealed
that the child’s vagina was bruised, torn, and bleeding. Defendant later told the police
that he had raped the child on a prior occasion under similar circumstances.

The defendants’ acts could have justified multiple convictions of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual penetration of a person
under 13 years of age), and child sexually abusive activity, MCL 750.145c(2). For each
defendant, the prosecutor agreed to dismiss a single count of child sexually abusive
activity in return for the defendant’s guilty plea to one count of CSC I.

The presentence investigation report states that defendant showed “no remorse or
concern” for the victim but was “more angry that he was caught and punished.” The
investigation also revealed that defendant, who was an adult at the time of the instant
crimes, had a record of juvenile offenses, including sexually assaulting his younger sister
on three or four occasions. He admitted that his sister would tell him to stop and would
sometimes cry. He had been placed on probation for the assaults, but had violated his
probation several times, including by taking nude photos to school and pulling down the
pants of two boys.

The maximum sentence for CSC I is life in prison. The legislative sentencing
guidelines recommended a minimum sentence range for defendant of 108 to 180 months
(9 to 15 years). The judge opined that the guidelines range was inadequate for several
reasons and departed from it, as permitted by MCL 769.34(3), imposing a parolable life
sentence. Addressing defendant, the judge stated:

[T]he guidelines, in the Court’s opinion, do not adequately reflect
that you knew that the victim was an 11 year old girl with the mental
capacity of a seven year old, in addition to having physical problems,
having cerebral palsy and epilepsy. The guidelines do not, in the Court’s
 6

opinion, adequately consider that the child’s mother had to hold the
victim’s legs open so that you could penetrate her with your penis.

The guidelines also do not adequately consider that you were also
involved in the taking of sexual [sic] explicit pictures of the victim.
Additionally, in the Court’s opinion, the guidelines do not adequately
reflect that this is your second sexually assaultive behavior on your part
within a relatively short period of time and that you had previously had
[sic] sexually assaulted your little sister about six years ago and received
counseling thereafter, which apparently didn’t do a whole lot of good.

The sentence of the Court, all that having been said, is that you
spend the rest of your life in prison.

As in the case of the defendant mother, I believe the judge offered an adequate
“substantial and compelling reason,” MCL 769.34(3), to impose a life sentence under the
circumstances of this case and where defendant is a repeat sex offender. Indeed, the
judge offered several reasons for departure. Most significantly, I cannot see how the
judge on remand could further explain the departure under Smith.

Smith, supra at 318, centrally suggests that a trial court should compare its
departure sentence “against the sentencing grid and anchor[] it in the sentencing
guidelines.” Here defendant’s five prior record variable (PRV) points and 80 offense
variable (OV) points placed him in the B-V range for Class A offenses, calling for a
minimum sentence of 108 to 180 months. MCL 777.62. Yet, first, defendant’s record
revealed a pattern of sexual assaults that were not accounted for, including several against
his sister and a prior assault on the current victim. Defendant’s lack of reform and
likelihood of reoffending is highly relevant to an appropriate sentence. One could argue
under Smith that, if defendant had been convicted as an adult of each sexual assault he
admitted committing, his record would reflect three or more prior high severity felonies
justifying a score of at least 75 points under PRV 1. MCL 777.50. This alone would
place him in the F-V range, which explicitly allows a minimum sentence of life in prison.
But I think that we thwart the guidelines if we effectively allow courts to score additional
points for nonexistent offenses and particularly for offenses that explicitly justify lower
scores under other variables. Here, for example, defendant’s prior sexual assaults of his
sister were subsumed into a single juvenile assault adjudication that was scored under
PRV 5. The assault adjudication and a second juvenile adjudication for retail fraud
together resulted in a five-point score for PRV 5. Thus, if we hypothetically count the
sexual assaults of his sister as felonies for purposes of a departure rationale, we
contravene the statutory language and effectively count the assaults twice in two mutually
exclusive categories. Significantly, I suspect that a court could mathematically justify
almost any conceivable sentence in this way by extending or hypothetically rescoring the
guidelines to explain a departure. It is in part for this reason that I find Smith
 7

unworkable. To illustrate, here the substantial and compelling nature of defendant’s prior
crimes lies in their character as a pattern of admitted sexual assaults on young, unwilling
girls. Their nature supports a lengthy prison sentence for the same reasons such a
sentence is explicitly called for by the guidelines when an offender is convicted of
multiple prior felonious sexual assaults. But the prior crimes arguably would not
similarly justify a life sentence if they had been mere uncharged acts akin to unrelated
felonies such as drug offenses or crimes against property. Yet, arguably, a sentencing
judge could “count” such hypothetical felonies in the same way I “counted” the prior
sexual assaults here in an attempt to justify a life sentence.

The only pertinent question under MCL 769.34(3) is whether a “substantial and
compelling reason” justifies the sentence imposed—not whether a court can hypothesize
mathematical support for its departure. And I would argue that the Legislature’s actual
formulation has a well-supported rationale. Here, the substantial and compelling reason
to depart was defendant’s unremitting sexual assaults on young girls, for which he
apparently showed no remorse or reform despite prior punishment. In citing this reason,
the trial judge offered an objective and verifiable fact that “keenly” or “irresistibly” grabs
our attention and clearly is of “considerable worth in deciding a sentence.” People v
Babcock, 469 Mich 247, 257 (2003) (citation and quotation marks omitted). The judge
thus meaningfully fulfilled his duty to “consider whether [his] sentence is proportionate to
the seriousness of the defendant’s conduct and his criminal history . . . .” Id. at 264. It
would have been considerably less meaningful—and arguably unlawful—if he had
concocted a guidelines calculation providing for a life sentence by effectively scoring
variables that, by their terms, were not supported by the record.

Second, the judge cited defendant’s exploitation of a disabled child and stressed
that the rape required the mother to hold the child’s legs open. Defendant’s 80-point OV
score included 10 points for OV 10 as is appropriate when “[t]he offender exploited a
victim’s physical disability, mental disability, youth or agedness, or a domestic
relationship or the offender abused his or her authority status.” MCL 777.40(1)(b). But,
here, defendant exploited the victim’s physical disability, mental disability, youth and a
domestic relationship. Should we multiply 10 points by these four attributes? A 40-point
score for OV 10 would place defendant in the B-VI range, which calls for a minimum
sentence of 126 to 210 months (10 ½ to 17 ½ years). Defendant also received the
maximum 10-point score for OV 4 (psychological injury requiring treatment). In light of
this rape of a child by her own mother and a live-in boyfriend, which required physical
manipulation of the child because of her cerebral palsy, should the score for
psychological injury be doubled? Tripled? Either way it matters not because the 30
additional points “under” OV 10 already would have placed defendant in the highest OV
range—level VI on the grid. Thus, the guidelines do not directly contemplate a minimum
sentence over 17 ½ years for this defendant, regardless of how many additional
aggravating factors were present.
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As I observed in my dissent in Smith, the very fact that the Legislature allows
sentencing judges to depart from the guidelines shows that the guidelines are incapable of
taking some factors into account. The Legislature thus expressly relies on a judge’s
ability to weigh such circumstances.

[D]eparture sentences should by definition be governed by a
different standard than sentences within the guidelines range. By choosing
to permit judges to “depart” from the guidelines range for unusual offenses,
the Legislature contemplated a less stringent standard of uniformity for
unusual offenses, which should because of their nature be treated
differently. Departure sentences generally involve less quantifiable facts
that are not adequately covered by the normative guidelines. [Smith, supra
at 338 (Corrigan, J., dissenting).]

Finally, as Justice Kelly observes, under Smith a sentencing court nonetheless “is
not required to consider where a defendant’s sentence falls in the sentencing grid.”
Smith, supra at 309. Rather, Smith permits the court to “render a proportionate sentence
above the highest minimum for someone with a similar PRV score” because “the
Legislature did not contemplate a defendant with such a high OV score, given that it used
100 OV points as the maximum for the grid.” Smith, supra at 308-309. Justice Kelly
thus concludes: “Therefore, in this case, the trial judge’s burden would be to explain why
the aggravating factors justified a life sentence.” Ante at 3. Her conclusion exemplifies
the central problem with Smith as applied: If a court cannot quantify the reasons for
departure because they are not contemplated by the guidelines, what more can a court do
to “explain why” the reasons for departure justify the sentence imposed? Here, what
more could the court have done to justify a life sentence after recounting the
circumstances of the crime, noting defendant’s past sexual assaults, and recognizing that
defendant failed to reform despite prior punishment and counseling? In cases such as this
one, I fear that providing meaningful further articulation will be impossible in practice.

In sum, I think that the trial judge fully complied with MCL 769.34(3) in this case
and that a remand for further articulation under Smith imposes an unnecessary and
potentially impossible task. Significantly, although a life sentence appears entirely
appropriate in light of defendant’s history and the circumstances of this crime, I am not
convinced that the trial judge could ever impose a life sentence while conforming to the
Smith requirements. Remand for further articulation thus also wastes precious time and
scarce resources. For these reasons, I would grant leave to appeal so as to reconsider
Smith.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 19, 2008 _________________________________________
1216 Clerk