Michigan Supreme Court 

# Order
Lansing, Michigan

November 3, 2005 Clifford W. Taylor, Chief Justice 127795 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: 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, pursuant to MCR 7.302(G)(1 ), in lieu of granting leave to appeal, we REMAND this case to the Cour t of Appeals as on leave granted. We DIRECT that c ourt to consider whether the tria l court articulated substantial and compelling reasons for “this” particular departure, see People v Hegwood , 465 Mich 432, 437 n 10 (2001), and People v Babcock , 469 Mich 247 (20 03), and whether the sentence imposed by the tria l court is proportionate.

We do not retain jurisdiction.

W EAVER , J., dissents and states as follows:

I dissent because I totally disagree with the majority’s decision to remand this case to the Court of Appeals to de termine whether the trial court articulated “a substantial and compelling reason” 1 for an upward departure of approximately 31 years from the minimum sentence provided by the guidelines a nd whether the sentence is proportionate.

The trial court in this case satisfied th e requirement to articulate “a substantial and compelling reason” for its dep arture from the guidelines, an d, given that this case involves repeated criminal sexual misconduct w ith minor children by a “serial child sex

1 MCL 769.34(3).2

abuser,” 2 the trial court’s decision did not ve nture beyond the range of principled outcomes under the circumstances. Therefo re, I would deny leave to appeal.

The Michigan Legislature has enacted guidelines regard ing minimum sentences to be imposed by state courts. MC L 769.34. The guidelines permit upward and downward departures:

A court may depart from the appropr iate sentence range established under the sentencing guide lines set forth in chapt er XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for depart ure. [MCL 769.34(3).] Had the trial court not departed from th e guidelines in this case, defendant’s minimum sentence would have fallen between 135 and 225 months. Bu t 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 n ecessary and imposed a minimum sentence of 50 years’ imprisonment. The trial c ourt articulated the following reasons for its approximately 31-year departure:

The Court finds that substantial and compelling reasons justify the departure from the sentenci ng guidelines in connection with this count if not all the counts. The reasons includ e 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 remors e or understanding of the grave nature of these crimes is simply incredible. In the Defendant’s description of the offense in th e Presentence Investigative Repo rt he is stated to have the attitude that, that [s ic] the offenses are noth ing more than harmless games and were not meant for any kind of gratification. Now that’s a paraphrase of what he said, I unde rstand that’s not a direct quote. The Court has carefully observed th e Defendant’s prior appearances before the Court and today. The reco rd shall reflect the Court finds the Defendant’s mannerisms, facial exp ressions, and other indicators of truthfulness or remorse to be without merit. I understand the Court of Appeal s does not have the ability when examining the cold trans cript to observe what I observed, the transcript does not reflect the climate or atmosph ere of this and prio r proceedings or his character. I have witnessed a disi ngenuous man whose statements . . . should be disregarded.

2 Trial court sentencing transcript, p 16.3

Furthermore, the Defe ndant undertook a pattern of repeated sexual conduct—misconduct with minors. These were not isolated, discreet incidents. These incide nts do not have sponta neity. To the contrary, Defendant clearly engaged in continuous repeated and deliberate patterns of Criminal Sexual Conduct invo lving more than one victim. Indeed the Defendant engaged in a series of premeditated acts purposefully creating circumsta nces or taking advant ages of circumstances by which he could be alone with and victimize youn g children. Although I will not repeat the Defendant’s, the agen t’s description of the offenses here, they involve creating opport unities to prey u pon the children of his friends. By doing so he corrupte d, scarred and stained the lives of the victims and the families of the victims with his wilf ul, wanton, and despicable behavior and he breached positions of trust as well.

This Court has also reviewed correspondence fro m a number of interested parties, half of which pa int 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 th at the latter description is appropriate. One of the victims’ fat her[s] has written the Defendant went on a relentless pursuant [sic] to befri end him and his y oung son and he believes that the Defendant did so to position himself to sexually molest his

son.
The Defendant’s older sister has wr itten that the Defendant sexually assaulted two of his (sic) sons. In ot her 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 brot her 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 ma ny 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 cas e such as this th e Court must not have a blind eye to the unrelenting seri al nature of the cri mes for which he has been convicted, th e nature of which are illumi nated in form by the allegations of parallel conduct surrou nding 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 senten ce the Court must punish4

the crimes that have been committed a nd protect society at large. The crimes committed demand a substantia l upward departure. Protecting society in this case demands a substantial upward departure. In fact if an upward departure from the guidelines is not warrante d in the instant case, the guidelines should be burned now because there would rarely be more forthright justification for an upward departure. [3]

The trial court’s statement indicates and the record confirms that defendant engaged in continuous, repeat ed, and deliberate criminal se xual conduct with several young victims. The presentence investigation report provided to the trial court indicated that defendant befriended two preteen boys who were the s ons of defendant’s friends. Over an approximately two-year period, d efendant repeatedly sexually molested both boys. The molestation included frequent oral and anal sex: one victim stated that defendant performed anal sex and “things of th is 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 th ere was blood on the floor and lotion on the nightstand.”

Defendant purposely created opportunities to prey upon these young children, took advantage of them, breached th eir trust, and evid ently still does not vi ew his actions as criminal, calling them “harmless games.” 5 Defendant is characteri zed by the trial court as “a serial child sex abuser who will simply take up wh ere he leaves off” 6 as long as young children are with in reach. It simply cannot be said that these are not well

articulated, substantial, and compe lling reasons for the departure.

Moreover, it is equally ap parent that given defendant’s repeated criminal sexual conduct, his refusal to acknowledge the crimi nal 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 be yond the range of principled outcomes. Under these circumstances, such a sentence is within the ra nge of principled outcomes.

When the Legislature passed these senten cing guidelines, it cert ainly did not have in mind that this Court would engage in ov erzealous 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 th at the defendant would commit additional sex crimes against y oung children.

3 Transcript, pp 13-17.

4 Presentence investigation report, p 2.

5 Id ., p 3.

6 Transcript, p 16.5

Remanding and demanding that the Court of Appeals spend any more time considering whether the trial court satisfied its requirement to articulate “a substantial and compelling reason” for sentencing departure, or whether the sentence was proportionate is a waste of judicial resources. 7

For these reasons, I dissent from the ord er remanding this case to the Court of Appeals and I would deny leave to appeal.

Y OUNG , J., dissents and states as follows:

I would deny leave to ap peal and respectfully dissent from the order remanding the matter to the Court of App eals. The issue that divides me from the majo rity is not a disagreement with the core principles of sentence ar ticulation set forth in People v Babcock

. 8 Rather, given the meticulous sentence ar ticulation the trial court made on the record, I am unable to determine the form that the majority believes such an articulation must have in order to pass muster.

In remanding to the Court of Appeals fo r consideration as on leave granted, the majority has identified two concerns with th e sentence articulation at issue: (a) “whether the trial court articulated substantial an d compelling reasons for ‘this’ particular departure” and (b) “whether th e sentence imposed by the tr ial court is proportionate.” 9 Under the undisputed horrific fact s of this case, I believe that the trial court adequately articulated substantial and compelling reasons justifying the specific upward departure from the sentencing guidelines it imposed. Moreover, given th is serial child molester’s admitted inability to appreciate that sex with children is a criminal act, coupled with his past criminal sexual conduct, the 50-year minimum sentence imposed was manifestly proportional and necessary to remove the une quivocal risk that defendant poses to children and society.

7 In People v Babcock , 469 Mich 247, 282 ( 2003), I agreed with Just ice Corrigan that the majority’s approach in that case would result in the remand of innumerable cases and “‘create needless additional work for an already overburdene d trial bench.’” It is apparent it will also create n eedless additional work for th e Court of Appeals.

8 In People v Babcock , 469 Mich 247 (2003), this Cour t held that a “'substantial and compelling reason'” justifying a departure from the gu idelines must be based on a reason that is objective and verifiable, and that reason must keenly or irresistibly grab the Court’s attention. The reason mu st be of considerable worth in deciding the length of the
sentence. Id. at 257-258. Fu rthermore, “the trial court must articulate on the record a substantial and compelling reason to justif y the particular departure imposed.” Id. at 260.

9 See Babcock

, supra at 264.6

Defendant was originally charged with ten counts of criminal sexual conduct involving three boys. In exchange for the di smissal of five counts, defendant pleaded no contest to three counts of first-degree crimina l sexual conduct and two counts of second

degree criminal sexual conduct. The trial court noted that evidence of guilt was undisputed. One of the victims indicated th at after one incident of sexual assault, the victim’s penis “hurt so much that he coul d barely walk” and that there was “blood on the bedroom floor.” The same vict im indicated that he had been raped by defendant “so many times” that it was “hard to remember a ll of them.” Although denying that he engaged in anal penetra tion, defendant freely admitte d during the presentence investigation that he molested, fondled and had oral sex with the eleven- and twelve-year

old victims, conduct he described as “nothing more than harmless games.”

In imposing a 50-year minimum sentence for one of the five counts of rape, the trial court articulated several reasons for de parting from the sentencing guidelines by 31 years: (1) defendant “engaged in continuous, repeated and de liberate patterns” of sexually assaulting young child ren; (2) defendant purposely creat ed “opportunities to prey upon the children of his fri ends"; and (3) by p reying upon these child ren, defendant breached the positions of trust with th e victims and their families. The trial court noted that it had received letters from defendant’s siblings, indicating that defendant had molested his niece and two nephews. Defendant’s brother asked the court to impose a life sentence because his brother was a “serial rapist.” The trial court made clear that, although defendant was not being sentenced for these uncharged crime s, there was “every indication from the record” that defendant was “a serial child sex abuser who will simply take up where he leaves off.”

As noted, the trial court imposed an upward departure of 31 years, making plaintiff’s minimum sentence 50 years. Given the reasons stat ed on the record, I believe that the trial court satisfied all of the articulation burdens identified in Babcock . The extent of the departure and its proportionality were more than justified by the defendant’s serial sexual assaults on children and his fa ilure to understand that sex with children was wrong and, more important, criminal. All of these reasons were plainly stated on the record by the trial court.

If there were any remaining doubt that th e trial court believed that a 31-year upward departure was required , based on the crimes committe d and the need to protect society at large from a man who failed to a ppreciate the criminality of his actions, these were completely resolved because defendant challenged the sentence by moving for resentencing. In denying the motion for res entencing, the trial court noted that the guidelines failed to consider th e “sheer number of times” the vi ctims had been assaulted. Moreover, the court took note of defendant’s statements indi cating that defendant did not believe that his conduct was wrong because he was engaging in “consensual sex” that amounted to “nothing more than harmless ga mes.” Significantly, the court further took note of defendant’s own medical expert, who concl uded that the criminality of_______________________________________ __ 7

defendant’s acts “did not seem to register,” because defendant claimed to have a “love relationship” with an eleven- or twelve-year-old boy and believed that “sex play” was not “harmful” as long as it was “mutual.” The trial court concluded:

The firm conviction of this Court, as previously articulated on the record, is that society absolutely needs to be pr otected from the defendant as long as possible; releasing defenda nt prior to the end of the sentence rendered in the upward departure would place society at grave risk. [Emphasis added.] Clearly, the trial court listed substa ntial and compelling reasons that were objective and verifiable. Given the horrific na ture and extent of th e crimes committed, as well as defendant’s admitted predilection to commit the same crimes again, it cannot be seriously argued that the reasons supplied by the trial court do not k eenly or irresistibly grab this Court’s attention. My colleague s appear to accept that the sentence departure was supported by substantial a nd compelling reasons as defined in Babcock . Given the very substantial record the trial court made on why it impos ed a 50-year minimum sentence, I am uncertain what kind of articulation my coll eagues require to satisfy the “particularity” element of Babcock —that is, why they believe the trial court failed to articulate how the substantial and compelli ng reasons given for the departure justified the particular departure imposed

. I am equally at a loss to understand why the majority also s eems concerned that this 50-year sentence fo r a predatory serial child rapist who believes that his “sex play” with multiple children was “n othing more than harmless ga mes” lacks proportionality. On this record, defendant as much as declared that, if free to do so, he woul d continue to rape children. If a 50-year minimum sentence ca nnot be justified on this record, then this Court ought simply tell the trial courts of th is state that they no lo nger have discretion for the protection of society to incarcerate repeat predators for very long prison terms.

Because even a cursory inspection of this sentencing record reveals more than ample justification for the sentence imposed, it appears that the ma jority requires some more formulaic articulation. If so, this Cour t ought to save the Court of Appeals the trouble of a remand and tell one and all now what that formulation is.

For these reasons, I would deny leave to appeal.

C ORRIGAN , J., joins the dissenting statement of Y OUNG , J.

t1031 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

November 3, 2005
Clerk