Order Michigan Supreme Court
Lansing, Michigan
December 19, 2008 Clifford W. Taylor,
Chief Justice
136262 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: 136262
COA: 283580
Jackson CC: 06-003948-FC
APRIL MARIE KURTZ,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 19, 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 order states,
“[t]he trial judge failed to offer any valid explanation justifying why he chose to sentence
the defendant to a term of life imprisonment.” The sentence in this case was handed
down before the Court released its opinion in Smith;1 therefore, the trial judge may not
have thought it necessary to express why the particular departure he chose was justified
1
People v Smith, 482 Mich 292 (2008).
2
by substantial and compelling reasons.2 Our order expresses no opinion on the validity of
the reasons the trial judge gave for departing from the guidelines.
Given the circumstances, I believe that there is an inadequate basis to assert, as
Justice Corrigan does, that the trial judge could never impose a life sentence while
conforming to the Smith requirements. 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.”3 She notes the trial judge’s
reference at sentencing to the nature of the crime and the damage caused to defendant’s
child as substantial and compelling reasons to depart. But Justice Corrigan fails to point
to anything in the record indicating why the sentencing judge believed that a life sentence
was appropriate. Smith requires that the trial judge explain why a lesser departure would
be disproportionate to the defendant’s criminal history and the seriousness of defendant’s
conduct.
In this case, Justice Corrigan recites the facts surrounding the charged offense that
the trial judge mentioned as a basis for departure. She then concludes that using those
facts to add a significant number of additional points to defendant’s offense variable
(OV) score is unhelpful. She states that a mere 10 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 11¼ to 18¾ years. Therefore, she
reasons, “it is essentially impossible to anchor a departure in the guidelines based on the
degree to which OV 10 failed to adequately contemplate the circumstances of the crime.”
To the contrary, Smith explicitly stated that, if a defendant has 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.”4 Therefore, in this case, the trial judge’s burden is to explain why the
aggravating factors it identified justified a sentence of life in prison. I do not share
Justice Corrigan’s concerns that Smith effectively ties the hands of a sentencing judge
2
Justice Corrigan questions 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 court 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
Id. at 318.
4
Id. at 308-309.
3
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.5
I continue to believe that Smith’s interpretation of MCL 769.34(3), requiring a
sentencing judge to justify the basis for “the departure it made and not simply any
departure it might have made,”6 is appropriate. Moreover, it is mandated by the language
of the statute. Therefore, I concur in full 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
Howard, 482 Mich ___ (Docket No. 136238, order entered December 19, 2008), to
reconsider the burdensome requirements imposed upon sentencing courts by People v
Smith, 482 Mich 292 (2008). For the reasons I explain in Howard, this child rape case
demonstrates that Smith is unworkable.
Defendant is the mother of a disabled 11-year-old girl. As I fully explain in
Howard, defendant encouraged and facilitated her codefendant boyfriend’s rape of her
daughter on at least two occasions. The codefendant proceeded to penetrate the girl’s
vagina with his fingers and penis only after defendant assured him that he would not get
in trouble and the child would not tell anyone. When defendant returned the child to her
grandmother’s home the next day, defendant attempted to conceal the rape by telling the
grandmother that the child might “tell her a story.” Defendant admitted that she knew
that her daughter had been injured because defendant saw bleeding between her
daughter’s legs.
The defendants’ acts would 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, see MCL 750.145c(2). For
5
Justice Corrigan’s response to this concurrence 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.
6
Smith, supra at 318.
4
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 had 12 prior
misdemeanors and was on probation at the time of the instant offense. Her prior
convictions included contributing to the delinquency of a minor and domestic violence.
The Department of Corrections recommended the maximum allowable term of
incarceration for defendant, opining in part that the victim “will live the rest of her life
knowing the one person who should have loved her more than life, [sic] betrayed her. It
will remain to be seen if [the victim] will ever trust another person.”
The maximum sentence for CSC I is life in prison. The legislative sentencing
guidelines recommended a minimum sentence range for defendant of 126 to 210 months
(10 ½ to 17 ½ 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. The judge opined:
The court’s deviating over the guidelines as in the Court’s opinion
the guidelines do not adequately consider that the child . . . was only 11
years of age at the time but had the mental capacity of a seven year old.
The guidelines also do not adequately consider, in the Court’s
opinion, that the victim had cerebral palsy and that the defendant, because
of the physical handicap, held her daughter’s legs open to allow Mr.
Howard [the codefendant] to achieve penetration and that this happened on
two separate occasions.
The guidelines also do not adequately consider that the defendant
was taking sexually explicit photos of the victim for whatever reason,
which is unclear to the Court. The guidelines also do not adequately
consider, in the Court’s opinion, the short and long-term psychological
effects upon the child who, even now, misses the mother and wants to see
her. This is simply abhorrent behavior.
The sentence of the Court deviating over the guidelines, which the
Court thinks is appropriate, is that the defendant spend the rest of her life in
prison . . . .
As in the case of the codefendant, I think the judge offered an adequate
“substantial and compelling reason,” MCL 769.34(3), to impose a life sentence for this
mother who solicited and participated in the abuse and exploitation of her disabled child
on more than one occasion. Indeed, the judge offered several reasons to depart. Most
significantly, I cannot see how the judge on remand could further explain the departure
under Smith.
5
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 20 prior record variable (PRV) points and 90 offense
variable (OV) points placed her in the C-V range for Class A offenses, calling for a
minimum sentence of 126 to 210 months. MCL 777.62. This case differs from that of
the codefendant because defendant did not have a history of sexual assault. But the trial
judge reasonably points to the nature of the crime and to the damage caused to
defendant’s child as substantial and compelling reasons to depart. Defendant exploited
her own disabled child while the child was in her care. Indeed, defendant offered the
child to her boyfriend and encouraged and facilitated the rape. If these circumstances do
not “keenly” and “irresistibly” grab our attention, People v Babcock, 469 Mich 247, 257
(2003) (citation and quotation marks omitted), I cannot imagine what would. By
emphasizing the serious nature and results of this abuse, the judge meaningfully fulfilled
his duty to “consider whether [the] sentence is proportionate to the seriousness of the
defendant’s conduct and [her] criminal history . . . .” Id. at 264.
Next, as in the codefendant’s case, defendant received a 10-point score 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 defendant exploited the victim’s physical
disability, mental disability, youth, domestic relationship and authority status as the
child’s own mother by offering up her child for rape. Is it enough to multiply 10 points
by these five attributes? A 50-point score for OV 10 would give defendant a total of 130
OV points, but such a score would make little difference in her prescribed minimum
sentence range; her 90-point OV score already placed her in the second highest OV
category, so only 10 additional points places her in the highest OV category for 100
points or more. This would place defendant in the C-VI range, which calls for a
minimum sentence of 135 to 225 months (11 ¼ to 18 ¾ years). Thus, it is essentially
impossible to anchor a departure in the guidelines based on the degree to which OV 10
failed to adequately contemplate the circumstances of the crime. Similarly, defendant
received the maximum 10-point score for OV 4 (psychological injury requiring
treatment). But because the OV category maxes out, so to speak, if only 10 points are
added to her 90-point score, it is impossible to calculate what sentence would be
appropriate if both OV 10 and OV 4 could be scored at a number of points more
applicable to this crime.
As I observed in my dissent in Smith and my statement in the codefendant’s case,
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.
6
[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 is to explain why the
aggravating factors it identified justified a sentence of life in prison.” Ante at 2. 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
describing defendant’s “abhorrent behavior” in offering up her own disabled daughter for
rape? 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 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 the circumstances of this crime and defendant’s role as the victim’s mother, 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