Order Michigan Supreme Court
Lansing, Michigan
October 27, 2006 Clifford W. Taylor,
Chief Justice
131712 & (44) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
Cross-Appellee,
v SC: 131712
COA: 259798
St Clair CC: 03-001361-FH
HUGH ROBERT HEDEEN, JR.,
Defendant-Appellee,
Cross-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 6, 2006
judgment of the Court of Appeals and the application for leave to appeal as cross-
appellant are considered, and they are DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
WEAVER, J., dissents and states as follows:
I dissent from the majority’s order denying the prosecutor’s application for leave
to appeal. I would reverse the Court of Appeals majority’s ruling and, for the reasons
stated by Court of Appeals dissenting Judge Fort Hood, I would reinstate the sentence
imposed by the trial court.
The defendant in this case was 32 years old when he began having sexual relations
with the 15-year-old victim. The presentence report indicates that the defendant met the
victim in June 2002 and that they started engaging in sexual relations in August 2002.
The victim told the police that defendant knew that she was 15 and that defendant told
her he would take care of her. Evidently the victim’s home life was unstable. Her
parents were divorced and her father had been out of the picture for some time. The
victim’s mother was inattentive and, when the mother’s boyfriend kicked the victim out
of the house, the victim began living with defendant in his home.
Defendant admitted that he knew the victim was 15, but that he had sexual
intercourse with her anyway, approximately every other week, from August 2002 until
April 2003, a period of nine months. The victim told the police that because defendant
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did not use a condom, she became impregnated by defendant first in September 2002, and
then again in February 2003. Both times, the victim endured abortions, yet defendant
continued to engage in sexual relations with the victim.
Defendant pleaded guilty to one count of third-degree criminal sexual conduct
(CSC III), MCL 750.520d (1)(a), in exchange for dismissal of two additional counts of
CSC III. In departing from the sentencing guidelines minimum range of 24 to 40 months,
and instead sentencing defendant to the highest minimum term possible, ten to 15 years,
the trial court made the following observations:
[Y] ou know, Mr. Hedeen is 32 years old and this child is only 15
years old. She really was unprotected. She didn’t have any protection from
anybody. I mean she didn’t have any protection from her parent, her mom,
her guardian, the person that was in charge of her, and she certainly didn’t
have any protection from Mr. Hedeen.
* * *
This child was 15 years at the time. The crime has affected her
greatly. Her behavior has changed dramatically. She has been, this was the
thing, I made a note to myself. She became pregnant two times by this
Defendant and then aborted two times. She aborted a fetus two times. I’m
going to try not to cry, but I think this is gross. This is beyond, this is
animalistic.
* * *
But this is outside of any box that I’ve, I’ve ever been involved with,
and it’s whatever 30 years or 40 years where, where a 32 year old
impregnates a 15 year old who becomes pregnant and aborts that child and
then lo and behold a second time. That is certainly a pattern of behavior
that is just aberrant, and I’m not sure the guidelines take that into
consideration.
Well, those are the reasons that I’m going to impose a sentence that
will represent two-thirds of the maximum 15 years, which would be from
ten years to 15 years in prison. That’s the sentence.[1]
Defendant appealed his sentence, and a majority of the Court of Appeals reversed,
determining that while the trial court had a “substantial and compelling” reason for the
upward sentencing departure in accord with People v Babcock, 469 Mich 247, 264-265
(2003), the trial court had not satisfied the principle of proportionality: “whether the
sentence is proportionate to the seriousness of the defendant’s conduct and to the
defendant in light of his criminal record ….” Id. at 262. In so holding, the majority
1
Trial court sentencing transcript, September 15, 2003, pp 10-11, 15.
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noted that because defendant had no prior felony convictions, and his last misdemeanor
conviction occurred in 1991, defendant’s prior record did not support the departure. On
this basis, a majority of the Court of Appeals reversed and remanded for resentencing.
Judge Fort Hood dissented from the majority’s conclusion that the principle of
proportionality had not been satisfied under Babcock. Because I agree with Judge Fort
Hood’s dissent, I adopt it as the basis for my dissent from the majority’s decision to deny
the prosecutor’s application for leave to appeal the Court of Appeals majority’s order
reversing and remanding for resentencing:
Fort Hood, J. (concurring in part and dissenting in part).
I concur in the majority opinion’s conclusions that: (1) substantial
and compelling reasons existed to justify a departure from the guidelines;
(2) the record contains no indication that the sentence imposed was the
result of partiality based on the sentencing court’s religious beliefs; and
(3) defendant’s scoring and sentence did not violate Michigan sentencing
laws. However, I respectfully dissent from the majority’s conclusion that
the sentence violates the principle of proportionality.
As an initial matter, it should be noted that defendant did not allege
that the principle of proportionality was violated by imposing the ten to
fifteen year sentence for third-degree criminal sexual conduct, MCL
750.520d(1)(a), in his appellate brief. When a defendant fails to argue how
his sentence for the convicted offense is disproportionate, the issue is
waived. People v Hill, 221 Mich App 391, 397; 561 NW2d 862 (1997).
Moreover, appellate review of the sentence is not reviewed de novo,
but is limited. The structure of the legislative sentencing guidelines and the
appellate system itself recognize that “the 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 court may depart from the
sentencing 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).
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
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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 [sic]. 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 principled
range of outcomes, an abuse of discretion occurs. Id.
On this record, I cannot conclude that the trial court abused its
discretion. That is, the sentence imposed was within the range of principled
outcomes. The victim in this case was particularly vulnerable because her
mother essentially abandoned her. Although defendant did not allocute at
sentencing, his defense counsel opined that the victim was “left in his lap”
when her mother’s boyfriend threw her out of the family home. The
victim’s family instability gave defendant unlimited access to the victim,
and instead of calling the appropriate authorities or attempting to locate the
victim’s birth father, he preyed upon her despite knowing her age. After
the victim had one abortion, she reported that defendant was angry with
her, yet he continued to engage in unprotected sexual activities with her.
Based on the unique ability of the trial court to assess the factual
information presented in the lower court, I cannot conclude that an abuse of
discretion occurred. Therefore, I would affirm the sentence.[2]
Notwithstanding his fairly unremarkable prior criminal record, this 32-year-old
man should not have taken advantage of this 15-year-old girl. The fact that he would
continue to engage in repeated sexual relations when he knew she was only 15, and after
she endured, not just one, but two abortions, is indicative of that kind of aberrant criminal
behavior that “‘keenly’ or ‘irresistibly’ grab[s] our attention”3 and that therefore justifies
a departure from the sentencing guidelines.
The Court of Appeals majority’s conclusion that the sentence was
disproportionate because defendant could have committed third-degree criminal sexual
conduct in a more abhorrent, deviant fashion produces no reliable calculus for a trial
2
People v Hedeen, unpublished opinion per curiam of the Court of Appeals, issued June
6, 2006 (Docket No. 259798), slip op pp 1-2.
3
Babcock at 257, quoting People v Fields, 448 Mich 58, 67 (1995).
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court to know whether a sentence properly expresses community outrage or whether it
offends proportionality. For example, if defendant had impregnated the victim a third
time, would three pregnancies warrant the ten-year minimum sentence? Perhaps not,
because defendant could have impregnated the victim a fourth time, or could have
engaged in sexual relations with the victim with more frequency. The Court of Appeals
majority failed to identify what level of aberrant criminal behavior would have merited
the minimum sentence imposed by the trial court, which otherwise articulated substantial
and compelling reasons to depart upwardly.
For these reasons, I would reverse the Court of Appeals majority decision and
reinstate the trial court’s original sentence of ten to 15 years.
CORRIGAN and YOUNG, JJ., join the statement of WEAVER, J.
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.
October 27, 2006 _________________________________________
t1024 Clerk