Michigan Supreme Court 

# Order

Lansing, Michigan

December 19, 2008 Clifford W. Taylor,
Chief Justice

136262 Michael F. Cavanag h

Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, J ustices

v SC: 136262 COA: 283580 Jackson CC: 06-003948-FC APRIL MARIE KURTZ, Defendant-Appellant.

________________ _________________________/

On order of the Court, the application fo r leave to appeal the March 19, 2008 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the se ntence of the Jacks on Circuit Court and

REMAND this case to that c ourt for resentencing. The tr ial judge failed to offer any valid explanation justifying w hy he chose to sentence the defendant to a term of life imprisonment. People v Smith , 482 Mich 292 (2008). On remand, the trial court shall articulate on the record why this level of departure is warranted or resentence the

defendant either with in the appropriate sentencing guide lines range or articulate on the record why a different level of departure is warranted.

We do not retain jurisdiction.

K ELLY , J. ( concurring ).

I concur fully in the remand order. I write separately only to respond to concerns raised by Justice Corrigan in her dissenting statement.

First, I emphasize that resentencing is required here because, as the order states, “[t]he trial judge failed to offer any valid ex planation justifying why he chose to sentence the defendant to a term of life imprisonmen t.” The sentence in this case was handed down before the Court released its opinion in Smith ; 1 therefore, the trial judge may not have thought it necessary to express why the particular departure he chose was justified

1 People v Smith , 482 Mich 292 (2008).2

by substantial and compelling reasons. 2 Our order expresses no opinion on the validity of the reasons the trial judge gave for departing from the guidelines.

Given the circumstances, I belie ve that there is an inadeq uate basis to assert, as Justice Corrigan does, that the trial judge could never impose a life sentence while conforming to the Smith requirements. Justice Corrigan ties many of her concerns to

Smith ’s suggestion that a trial c ourt could compare its departure sentence “against the sentencing grid and anchor[] it in the senten cing guidelines.” 3 She notes the trial judge’s reference at sentencing to the nature of th e crime and the damage caused to defendant’s child as substantial and compelling reasons to depart. But Justice Corrigan fails to point to anything in the record indicating why the sentencing judge believed that a life sentence was appropriate. Smith requires that the trial judge e xplain why a lesser departure would be disproportionate to the defendant’s crimin al history and the seriousness of defendant’s

conduct.

In this case, Justice Corrigan recites the facts surrounding the ch arged offense that the trial judge mentioned as a basis for depart ure. She then concludes that using those facts to add a significant number of additiona l points to defendant’s offense variable (OV) score is unhelpful. She states th at a mere 10 additional points would place defendant in OV level VI—the highest le vel on the grid. Such a score would set

defendant’s minimum sentence under the guidelines at 111⁄4 to 183⁄4 years. Therefore, she reasons, “it is essentially impossible to anchor a departure in the guidelines based on the degree to which OV 10 failed to adequately contemplate the circumstances of the crime.”

To the contrary, Smith explicitly stated that, if a de fendant has an OV score above 100, “the court may render a proportionate sentence above the highest minimum for

someone with a similar PRV score” becaus e “the Legislature did not contemplate a defendant with such a high OV score, given that it used 100 OV points as the maximum for the grid.” 4 Therefore, in this case, the trial judge’s burden is to explain why the aggravating factors it identifie d justified a sentence of life in prison. I do not share Justice Corrigan’s concerns that Smith effectively ties the hands of a sentencing judge

2 Justice Corrigan question s what more the tr ial judge could have done to comply with the requirements of Smith and “fear[s] that pr oviding meaningful fu rther articulation will be impossible in practice.” But, the court ha s not yet had the opportunity to comply with

Smith . I reiterate that “[a] sentence cannot be uphel d when the connection between the reasons given for departure and the exte nt of the departure is unclear.” Id. at 304.

3 Id . at 318.

4 Id. at 308-309.3

who wishes to depart from the guidelines. Ce rtainly, in this case, the sentencing judge has yet to even attempt to jus tify the extent of the departure. 5

I continue to believe that Smith ’s interpretation of MC L 769.34(3), requiring a sentencing judge to justify the basis fo r “the departure it made and not simply any departure it might have made,” 6 is appropriate. Moreover, it is mandated by the language of the statute. Therefore, I concur in full in the Court’s order remanding this case for resentencing in light of Smith

.

W EAVER , J. ( dissenting ).

I would deny leave to appeal for the reas ons set forth in my di ssenting statement in People v Smith , 482 Mich 292, 325-329 (2008).

C ORRIGAN , J. ( dissenting ).

I would grant leave in this case and in that of the codefendant, see People v

Howard , 482 Mich ___ (Docket No . 136238, order entered December 19, 2008), to reconsider the burdensome requirements imposed upon sentencing courts by People v

Smith , 482 Mich 292 (2 008). For the reas ons I explain in Howard, this child rape case

demonstrates that Smith is unworkable.

Defendant is the mother of a disabled 11-year-old girl. As I fully explain in Howard, defendant encouraged and facilitated her codefendant boyfriend’s rape of her daughter on at least two occasions. The code fendant proceeded to penetrate the girl’s vagina with his fingers and penis only after defendant assured him th at he would not get in trouble and the child would not tell anyone. When defendant return ed the child to her grandmother’s home the next da y, defendant attempted to co nceal the rape by telling the grandmother that the child might “tell her a story.” Defendant admitted that she knew that her daughter had been injured be cause defendant saw bleeding between her daughter’s legs.

The defendants’ acts would have justified multiple conv ictions of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (sexual penetration of a person under 13 years of age), and child sexually abusive activity, see MCL 750.145c(2). For

5 Justice Corrigan’s respo nse to this conc urrence claims that “[r]emand for further articulation thus also wastes precious time and scarce resources.” I can certainly appreciate her concerns about judicial econom y, but I would rather allow the trial judge to attempt to correctly appl y the law than deny leave to appeal solely because of hypothetical, and I believe unfounded, concerns about Smith

.

6 Smith, supra at 318.4

each defendant, the prosecutor agreed to dismiss a single coun t of child sexu ally abusive activity in return for the defendant’s guilty plea to one count of CSC I.

The presentence investigation report states that defendant had 12 prior misdemeanors and was on probation at the tim e of the instant offense. Her prior convictions included contributing to the delinq uency of a minor and domestic violence. The Department of Corrections recomme nded the maximum allowable term of incarceration for defendant, opini ng in part that the victim “w ill live the rest of her life knowing the one person who shoul d have loved her more than life, [sic] betrayed her. It will remain to be seen if [the victim] will ever trust another person.”

The maximum sentence for CSC I is life in prison. The legislative sentencing guidelines recommended a minimum sentence ra nge for defendant of 126 to 210 months (10 1⁄2 to 17 1⁄2 years). The judge opined th at the guidelines range was inadequate for several reasons and depart ed from it, as permitted by MCL 769.34(3 ), imposing a parolable life sentence. The judge opined:

The court’s deviating over the guid elines as in the Court’s opinion the guidelines do not adequately consid er that the child . . . was only 11 years of age at the time but had the me ntal capacity of a seven year old.

The guidelines also do not ade quately consider, in the Court’s opinion, that the victim had cerebral pa lsy and that the defendant, because of the physical handicap, held her da ughter’s legs open to allow Mr. Howard [the codefendant] to achieve pe netration and that this happened on two separate occasions.

The guidelines also do not adequately consider that the defendant was taking sexually explicit photos of the victim for whatever reason,

which is unclear to the Court. Th e guidelines also do not adequately consider, in the Court’s opinion, th e short and long-term psychological effects upon the child who, even now, misses the mother and wants to see her. This is simply abhorrent behavior.

The sentence of the Court devia ting over the guidelines, which the Court thinks is appropriate, is that the defendant spen d the rest of her life in prison . . . .

As in the case of the codefendant, I think the judge offered an adequate “substantial and compelling r eason,” MCL 769.34(3), to impos e a life sentence for this mother who solicited and particip ated in the abuse and explo itation of her disabled child

on more than one occasion. Indeed, the judge offered severa l reasons to depart. Most significantly, I cannot see how the judge on remand could further explain the departure

under Smith

.5

Smith, supra at 318, centrally sugg ests that a trial court should compare its departure sentence “against the sentencing grid and anchor[] it in the sentencing guidelines.” Here defendant’s 20 prior r ecord variable (PRV) points and 90 offense variable (OV) points placed her in the C-V range for Cl ass A offenses, calling for a

minimum sentence of 126 to 210 months. MCL 777.62. This case differs from that of

the codefendant because defendant did not have a hist ory of sexual assault. But the trial judge reasonably points to the nature of the crime and to the damage caused to

defendant’s child as substan tial and compelling reasons to depart. Defendant exploited

her own disabled child while the child was in her care. Indeed, defendant offered the child to her boyfriend and enco uraged and facilitated the rape. If these circumstances do not “keenly” and “irresistibly” grab our attention, People v Babcock, 469 Mich 247, 257 (2003) (citation and quotation marks omitte d), I cannot imagine what would. By emphasizing the serious nature and results of this abuse, the judge meaningfully fulfilled his duty to “consider whether [the] sentence is proportionate to the seriousness of the defendant’s conduct and [her] criminal history . . . .” Id. at 264.

Next, as in the codefendant’s case, defe ndant received a 10-point score for OV 10 as is appropriate when “[t]he offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship or th e offender abused his or her authority status.” MCL 777.40(1)(b). But defendant exploited th e victim’s physical disability, mental disability , youth, domestic relationsh ip and authority status as the

child’s own mother by offering up her child for rape. Is it enough to multiply 10 points by these five attributes? A 50-point score fo r OV 10 would give de fendant a total of 130 OV points, but such a score would make little difference in her prescribed minimum sentence range; her 90-point OV score alrea dy placed her in the second highest OV category, so only 10 additiona l points places her in the highest OV category for 100 points or more. This would place defendant in the C-VI range, which calls for a minimum sentence of 135 to 225 months (11 1⁄4 to 18 3⁄4 years). Thus, it is essentially impossible to anchor a departure in the guid elines based on the degree to which OV 10 failed to adequately contemplate the circumst ances of the crime. Similarly, defendant received the maximum 10-point score for OV 4 (psychological injury requiring treatment). But because the OV category maxes out, so to speak, if only 10 points are added to her 90-point score, it is impossi ble to calculate what sentence would be appropriate if both OV 10 and OV 4 could be scored at a number of points more applicable to this crime.

As I observed in my dissent in Smith and my statement in th e codefendant’s case, the very fact that the Legislat ure allows sentencing judges to depart from the guidelines shows that the guidelines are incapable of taking some factors into account. The Legislature thus expressly relies on a judge’ s ability to weigh such circumstances._______________________________________ __ 6

[D]eparture sentences should by definition be governed by a

different standard than sentences with in the guidelines range. By choosing to permit judges to “depart” from the gu idelines range for unusual offenses, the Legislature contemplated a less st ringent standard of uniformity for unusual offenses, which should beca use of their nature be treated differently. Departure sentences gene rally involve less quantifiable facts that are not adequately covered by the normative guidelines. [ Smith, supra at 338 (Corrigan, J., dissenting).]

Finally, as Justice Kelly observes, under Smith a sentencing court nonetheless “is

not required to consider where a defendant’s sent ence falls in the sentencing grid.” Smith, supra at 309. Rather, Smith permits the court to “render a proportionate sentence above the highest minimum for someone with a similar PRV score” because “the Legislature did not contemplate a defendant with such a high OV score, given that it used 100 OV points as the maxi mum for the grid.” Smith, supra at 308-309. Justice Kelly thus concludes: “Therefore, in this case, the trial judge’s burden is to explain why the aggravating factors it identified justifie d a sentence of life in prison.” Ante at 2. Her conclusion exemplifies th e central problem with Smith as applied: If a court cannot quantify the reasons for departure because th ey are not contemplat ed by the guidelines,

what more can a court do to “explain why” the reasons for departure justify the sentence imposed? Here, what more could the court ha ve done to justify a life sentence after describing defendant’s “abhorrent behavior” in offering up her own di sabled daughter for rape? In cases such as this one, I fear that providing mean ingful further articulation will be impossible in practice.

In sum, I think that the tr ial judge fully complied with MCL 769.3 4(3) in this case

and a remand for furthe r articulation under Smith imposes an unnecessary and potentially impossible task. Significantly , although a life sentence a ppears entirely appropriate in light of the circumstances of th is crime and defendant’s role as the victim’s mother, I am not convinced that the trial judge could ever impose a life sentence while conforming to

the Smith requirements. Remand for further articul ation thus also wastes precious time and scarce resources. For these reasons, I would grant leave to appeal so as to reconsider

Smith.

1216 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.

December 19, 2008

Clerk