Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

April 24, 2009

138071

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v SC: 138071 COA: 281151 Macomb CC: 2 005-000998-FH RICHARD LEE OLMAN, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the November 18, 2008 judgment 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.

M ARKMAN , J. ( concurring ).

Defendant was convicted of second-degree criminal sexual conduct. Although the sentencing guidelines called for a minimum sentence of 0 to 17 months of imprisonment,

the trial court sentenced defend ant to 2 to 15 years. The Court of Appeals affirmed the conviction, but remanded for resentencing, c oncluding that the trial court failed to articulate substantial and compelling reasons to justify the sentencing departure. People v Olman, unpublished opinion per curiam, issued June 12, 2007 (Docket No. 268464) ( Olman I ). This Court denied leave to appe al (although defendant appealed the affirmance of his conviction, the prosecutor did not file a cross- appeal regarding the sentencing issue). People v Olman, 480 Mich 925 (2007). On remand, the trial court again sentenced defendant to 2 to 15 years. The Court of Appeals again remanded for resentencing. People v Olman, unpublished opinion per curi am, issued November 18, 2008 (Docket No. 281151) ( Olman II ).

The trial court’s first reason for depar ting was that offense variable 10, MCL 777.40, gives the victim’s age inadequate wei ght. However, in the first appeal, the Court of Appeals held that the victim’s age did not justify a departure, a nd the prosecutor never appealed. Therefore, this was clearly the law of the case in the second appeal.

The trial court’s second reason for depar ting was that defendant is a corrections officer, a position of public trust. However, MC L 769.34(3)(a) prohibits the court from using the defendant’s legal occ upation to depart from the guid elines range. Contrary to the dissent’s contention, this case is significantly distinguishable from People v Smith, 482 Mich 292, 298 n 3 (2008), because there the “defendant exploited his position of trust as a child-care provider for the vulnerable victim” to commit the offense. Here, defendant did not use his position in any way to commit the crime; he was not acting in2

any way as a corrections officer. He could have just as easily been a dentist or an auto

mechanic. Under these circumst ances, the fact of his occupation is simply irrelevant. 1

The dissent contends that the departure was justified because defendant’s conduct “cast doubt on [his employer] and its employees.” Post at 4. However, this justification could be applied in every case to every defendant. 2 The dissent asserts th at this is not true because only public employees can abuse the pub lic trust. It also contends that MCL 769.34(3)(a) only prohibits a trial court fro m relying on a defendan t’s occupation as a reason for a departure when the trial cour t does so for “discriminatory reasons.” Post at 3. Essentially, then, the dissent would rewr ite MCL 769.34(3)(a) to provide that a trial court cannot rely on a defendant’s occupation to justify a departure where that reliance is based on “discriminatory reasons,” but the trial court can rely on a defendant’s occupation as long as its reliance is not based on “discriminat ory reasons” or the defendant is a public employee. Because this is not what the statute as actually written provides, I cannot agree. Si milarly, the dissent’s conten tion that defend ant’s conduct “raises questions about his conduct behind cl osed doors while exercising his official power over a captive prison population,” post at 4-5, is nothing more than pure and unvarnished speculation. There is utte rly no such evidence in this case.

W EAVER

, J., dissents for the reason that sh e would grant leave to appeal.

C ORRIGAN

, J. ( dissenting ).

I would either grant leave to appeal in or der to consider the legality of the trial court’s stated grounds for departing upw ard from the sentencing guidelines or peremptorily reinstate the trial court’s senten ce. I believe that the trial court properly departed upward on the basis of defendant’s abuse of the pub lic trust placed in him as a corrections officer in the Department of Co rrections. Moreover, the Court of Appeals result in this case directly contradicts our contrary view of MCL 769.34(3)(a) in People v Smith, 482 Mich 292, 298 n 3 (2008).

Defendant was convic ted of second-degree criminal sexual conduct after a fouryear-old child reported that she had touched his penis until he ejacul ated. Defendant’s

1 To rebut the dissent’s asse rtion, yes, the trial court could undoubtedly “impose an upward departure on a judg e who took a bribe for a busing the public trust,” post at 3,

because in that hypothetical case, as in Smith, the defendant would have used his position

of trust to commit the crime. Here, defendant’s position of trust had absolutely nothing

to do with the crime that he committed.

2 Further, as the Court of Appeals explained, “the issue of defendant’s actions having adverse affects on his coworkers is a subjective factor that cannot be objectively verified and thus does not provide a valid basis for a departure.” Olman II, supra at 5.3

wife was the child’s day-care provider. Alth ough the 0- to 17-month guidelines range called for an intermediate sanction, the c ourt departed upward because defendant’s

criminal conduct also abused the public trust placed in hi m as a corrections officer. Addressing defendant at sentencing, Maco mb Circuit Judge Pete r Maceroni observed:

As a correctional officer . . . , you held a position of public trust. Such a position enabled you to unders tand better than anybody else that people should abid e by criminal statutes, espe cially one prohibiting sexual conduct with a young, tender girl of four years of age.

In my opinion, you violated this position of trust by committing this crime. In committing this sexual offens e you have cast as persions not only upon yourself but upon your prof ession, and potentia lly causing your former colleagues to have reduced es teem within the community of the Department of Corrections and alr eady take enough abuse from the prisoners as it is.

I am firmly convinced that taki ng everything into account, your misconduct[,] committed by a person ho lding an important public position, constitutes an objective, verifiable basis for exceeding the minimum guideline range, since these factors ar e not included w ithin the offense variables applicable to this crime, and enable me as the trial court to impose the minimum term beyond and [sic] pres cribed by the sentence guidelines.

The court correctly observed that it could exceed the guidelines on the basis of substantial and compelling factors not cont emplated by the offense variables. MCL 769.34(3). But the Court of Appeals reversed , concluding that the trial court improperly departed on the basis of defendant’s “leg al occupation,” citing MCL 769.34(3)(a), which

states: “The court shall not use an individu al’s gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appo inted legal counsel, representation by retained lega l counsel, appearance in pr opria persona, or religion to depart from the appropriate sentence range.”

The plain language of MCL 769.34(3 )(a) prohibits a sentencing judge from “us[ing]” any of the enumerated characteristics of a defendant “to depart.” The statute

lists status characteristics of a defendant such as gender, ra ce, ethnicity, alienage, national origin, and legal occupation. Its clear import is that a judge cannot depart on the basis of the fact that a defendant is male or female, is of a particular background or origin, or holds a particular legal occupation. The Co urt of Appeals has reasonably observed that MCL 769.34(3)(a) thus prohibits departure for discriminatory reasons, such as a judge’s personal assumptions that a particular broad cl ass of persons is more likely to reoffend.

See People v Cline, 276 Mich App 634, 651 (2008) (citi ng MCL 769.34[3][a] and noting earlier cases holding that predicti ons of “future behavior based on a status characteristic such as race, religion, gender, or age ar e suspect”) (quotation marks and citations omitted); People v Armstrong, 247 Mich App 423, 425 ( 2001) (citing MCL 769.34[3]4

and noting that “[t]he court may depart from the guidelines for nondiscriminatory reasons”).

The judge here did not depart because of the fact that defendant was a corrections officer . He did not “use” defenda nt’s “legal occupation” as the reason “to depart.” Rather, he departed because de fendant abused the public tr ust. This distinction is significant. The contrary, stunted view of th e Court of Appeals has serious ramifications because it conflates departure based on the fact of one’s legal occupa tion with departure

based on abuse of the trust inherent in a public role—particular ly one involving law

enforcement—and the ramifications of that abuse. One’s legal occupation as a public officer may be a necessary predicate for depa rture based on abuse of the public’s trust,

but this is because the occupation is evidence of the existence of that trust; the mere fact of the legal occupation is not the reason for departure under these circumstances. Under the Court of Appeals rationale, a sentencing court could not impose an upward departure on a judge who took a bribe for abusing the pub lic trust, as the judge would be punished for being a judge!

The Court of Appeals rationale also contradicts Smith, supra at 298 n 3, in which the Court stated that the trial court permissi bly departed on the basis of the defendant’s position of trust as a ch ild-care provider. In Smith , the judge referred at sentencing to the

defendant sex offender’s status as a child-car e provider. On appeal, the defendant argued that, in so doing, the judge violated MCL 769.34(3)(a) and punished the defendant on the basis of his legal occupation. Id. We rejected that view:

The record indicates that [the] de fendant was not legally working as a child-care provider during the period in question. His wife was primarily responsible for the baby-sitting services they advertised, and the home was not licensed to provide child-care. We infer from the judge’s statements that he referred to the child-care position because defendant had exploited his position of trust as a child-care provider for th e vulnerable victim. We conclude that the judge did not de part on the basis of defendant’s occupation . [ Id. (emphasis added).]

The departure in this case ma y differ from the departure in Smith because it represents a different permutation of the abus e of trust rationale. But Judge Maceroni’s reasoning was equally valid . He did not depart because of defendant’s lawful occupation. Rather, he departed because de fendant was a public official entrusted with the public’s safety, the duty to enfo rce the law, and the security of prisoners over wh om he had broad authority as a result of their captivity. By committing this pr edatory sex crime, he abused the trust placed in him—and, as Judge Macer oni observed, cast doubt on the Department of Corrections and its employees—in part be cause his crime raises questions about his

conduct behind closed doors while exercisi ng his official power over a captive prisonI, 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.

_______________________________________ __ Clerk April 24, 2009

p0421 5

population. His conduct therefore had ob jective consequences exceeding the normal

ramifications of his crime. Defendant’s act reflec ted on a public institution as a direct result of the trust placed in him by that institution.

Indeed, the crux of my disagreement with Justice Markman’s position appears to be our difference of opinion concerning wh ether there was adequate evidence that defendant abused the public tr ust in this case, not whethe r MCL 769.34(3)(a) prohibits a departure based on abuse of the public trust. I disagree with Justice Markman’s

contention that defendant did not abuse the public trust b ecause he “did not use his position in any way to commit th e crime; he was not acting in any way as a corrections officer. He could have just as easily been a dentist or an auto mechanic.” A dentist or an auto mechanic is not a public official char ged with upholding the law. In contrast, the public places corrections officer s in positions of power in pa rt on the very basis of its conclusion that they may be trus ted to uphold the law. Indeed , I presume that, even if he had not been imprisoned, defend ant would not have been perm itted to maintain his job as

a corrections officer in the wake of this conviction; defendant ’s ineligibility to work as a corrections officer in light of this crime would be an objective fact, not a subjective observation. Further, when an official undert akes a duty to uphold the law, his conduct off the job is particularly relevant to the tr ust we place in him to lawfully carry out his official acts outside the public view. Would we not say that a judge abused the public trust and impugned the judiciary as an institution if that ju dge sold illegal drugs off the job, although he in no way employed his public position to further the activity?

For these reasons, I would grant leave to a ppeal to consider whether the rationale for departure complied with MCL 769.34(3)(a) or would peremptorily reverse to reinstate the sentence imposed by Judge Maceroni.

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