Order Michigan Supreme Court
Lansing, Michigan
January 13, 2006 Clifford W. Taylor,
Chief Justice
127795 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 127795
COA: 257591
Oakland CC: 2002-185833-FC
PAUL T. HENDRIX, 2002-187092-FC
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the December 17, 2004
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
WEAVER, J., concurs and states as follows:
I concur with the denial order and agree with the majority’s decision to deny leave
to appeal.
The trial court in this case satisfied the requirement to articulate “a substantial and
compelling reason”1 for its departure from the guidelines, and, given that this case
involves repeated criminal sexual misconduct with minor children by a “serial child sex
abuser,”2 the trial court’s decision did not venture beyond the range of principled
outcomes under the circumstances. Therefore, denial of leave to appeal is appropriate.
The Michigan Legislature has enacted guidelines regarding minimum sentences to
be imposed by state courts. MCL 769.34. The guidelines permit upward and downward
departures:
1
MCL 769.34(3).
2
Trial court sentencing transcript, p 16.
2
A court may depart from the appropriate sentence range established
under the sentencing guidelines set forth in chapter XVII if the court has a
substantial and compelling reason for that departure and states on the
record the reasons for departure. [MCL 769.34(3).]
Had the trial court not departed from the guidelines in this case, defendant’s
minimum sentence would have fallen between 135 and 225 months. But the trial court,
noting that defendant had been convicted of five counts of repeated sexual misconduct
with minor children, determined that an upward departure was necessary and imposed a
minimum sentence of 50 years’ imprisonment. The trial court articulated the following
reasons for its approximately 31-year departure:
The Court finds that substantial and compelling reasons justify the
departure from the sentencing guidelines in connection with this count if
not all the counts. The reasons include the following. The Defendant has
been convicted of five counts of Criminal Sexual Conduct involving
minors. Those convictions involve more than one victim. Those
convictions also involve same gender sexual abuse.
Moreover any attempts of remorse or understanding of the grave
nature of these crimes is simply incredible. In the Defendant’s description
of the offense in the Presentence Investigative Report he is stated to have
the attitude that, that [sic] the offenses are nothing more than harmless
games and were not meant for any kind of gratification. Now that’s a
paraphrase of what he said, I understand that’s not a direct quote.
The Court has carefully observed the Defendant’s prior appearances
before the Court and today. The record shall reflect the Court finds the
Defendant’s mannerisms, facial expressions, and other indicators of
truthfulness or remorse to be without merit.
I understand the Court of Appeals does not have the ability when
examining the cold transcript to observe what I observed, the transcript
does not reflect the climate or atmosphere of this and prior proceedings or
his character. I have witnessed a disingenuous man whose statements . . .
should be disregarded.
Furthermore, the Defendant undertook a pattern of repeated sexual
conduct—misconduct with minors. These were not isolated, discreet
incidents. These incidents do not have spontaneity. To the contrary,
Defendant clearly engaged in continuous repeated and deliberate patterns of
Criminal Sexual Conduct involving more than one victim.
Indeed the Defendant engaged in a series of premeditated acts
purposefully creating circumstances or taking advantages of circumstances
by which he could be alone with and victimize young children. Although I
3
will not repeat the Defendant’s, the agent’s description of the offenses here,
they involve creating opportunities to prey upon the children of his friends.
By doing so he corrupted, scarred and stained the lives of the victims and
the families of the victims with his wilful, wanton, and despicable behavior
and he breached positions of trust as well.
This Court has also reviewed correspondence from a number of
interested parties, half of which paint him as an innocent angel and the
other half painting him as an evil, wicked man who must be placed in
prison to protect society.
The Court finds unequivocally that the latter description is
appropriate. One of the victims’ father[s] has written the Defendant went
on a relentless pursuant [sic] to befriend him and his young son and he
believes that the Defendant did so to position himself to sexually molest his
son.
The Defendant’s older sister has written that the Defendant sexually
assaulted two of his (sic) sons. In other words, his own nephews when they
were young children. The Defendant’s oldest brother has written and has
asked for a life sentence for his brother and characterized him as a serial
rapist. He states that the Defendant raped his daughter when she was eight
years old.
The Defendant’s niece states that she was molested when she was
five or six years old, that she personally knows many other victims.
I want to make clear right here and right now that I’m not sentencing
the Defendant for crimes for which he has not been tried or convicted.
Nevertheless justice dictates in a case such as this the Court must not
have a blind eye to the unrelenting serial nature of the crimes for which he
has been convicted, the nature of which are illuminated in form by the
allegations of parallel conduct surrounding the Defendant. There is every
indication from the record the Defendant is a serial child sex abuser who
will simply take up where he leaves off.
A light sentence would be putting our children at risk and a grave
miscarriage of justice. In pronouncing the sentence the Court must punish
the crimes that have been committed and protect society at large. The
crimes committed demand a substantial upward departure. Protecting
society in this case demands a substantial upward departure. In fact if an
upward departure from the guidelines is not warranted in the instant case,
the guidelines should be burned now because there would rarely be more
forthright justification for an upward departure.[3]
3
Transcript, pp 13-17.
4
The trial court’s statement indicates and the record confirms that defendant
engaged in continuous, repeated, and deliberate criminal sexual conduct with several
young victims. The presentence investigation report provided to the trial court indicated
that defendant befriended two preteen boys who were the sons of defendant’s friends.
Over an approximately two-year period, defendant repeatedly sexually molested both
boys. The molestation included frequent oral and anal sex: one victim stated that
defendant performed anal sex and “things of this nature happened so many times . . . that
it [was] hard to remember all of them.”4 Another victim reported that after one such
incident, “it hurt so much that he could barely walk and there was blood on the floor and
lotion on the nightstand.”5
Defendant purposely created opportunities to prey upon these young children, took
advantage of them, breached their trust, and evidently still does not view his actions as
criminal, calling them “harmless games.”6 Defendant is characterized by the trial court
as “a serial child sex abuser who will simply take up where he leaves off”7 as long as
young children are within reach. It simply cannot be said that these are not well-
articulated, substantial, and compelling reasons for the departure.
Moreover, it is equally apparent that given defendant’s repeated criminal sexual
conduct, his refusal to acknowledge the criminal nature of his actions, and the likelihood
that he will reoffend and put more youth at risk, it cannot be said that a 50-year minimum
sentence is not proportionate because it is beyond the range of principled outcomes.
Under these circumstances, such a sentence is within the range of principled outcomes.
When the Legislature passed these sentencing guidelines, it certainly did not have in
mind that this Court would engage in overzealous review of a trial court’s sentencing
authority, where the trial court took pains to clearly indicate that its basis for exceeding
the guidelines was the court’s firm belief that the defendant would commit additional sex
crimes against young children.
For these reasons, I concur with the order denying leave to appeal.
KELLY, J., dissents and states as follows:
I would remand this case to the Court of Appeals for consideration as on leave
granted. I would direct that Court to consider whether the trial court articulated
substantial and compelling reasons for this particular departure from the guidelines
4
Presentence investigation report, p 2.
5
Id.
6
Id., p 3.
7
Transcript, p 16.
5
recommendation and whether the sentence imposed is proportionate. See People v
Hegwood, 465 Mich 432, 437 n 10 (2001), and People v Babcock, 469 Mich 247 (2003).
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.
January 13, 2006 _________________________________________
t0110 Clerk