Michigan Supreme Court 

# Order
Lansing, Michigan
January 13, 2006 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 consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

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

I concur with the de nial order and agree with the majority’s deci sion to deny leave to appeal.

The trial court in this case satisfied th e requirement to articulate “a substantial and compelling reason” 1 for its departure fro m the guidelines, and, given that this case involves repeated criminal sexual misconduct w ith minor children by a “serial child sex abuser,” 2 the trial court’s decision did not ve nture beyond the range of principled outcomes under the circumstances. Therefore, denial of leave to appeal is appropriate.

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:

1 MCL 769.34(3).

2 Trial court sentencing transcript, p 16.2

A court may depart from the appr opriate 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 substantia l 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. Furthermore, the Defendant unde rtook 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 I3

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 reviewe d 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 that 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 written 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 punish 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 ]

3 Transcript, pp 13-17.4

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.” 5

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.” 6 Defendant is characteri zed by the trial court as “a serial child sex abuser who will simply take up wh ere he leaves off” 7 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 sentenci ng guidelines, it certainl y did not have in mind that this Court would engage in overzeal ous 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 y oung children.

For these reasons, I concur with th e order denying leave to appeal.

K ELLY , J., dissents and states as follows:

I would remand this case to the Court of Appeals for cons ideration as on leave granted. I would direct that Court to c onsider 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, 43 7 n 10 (2001), and People v Babcock , 469 Mich 247 (2003).

t0110 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.
January 13, 2006
Clerk