Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh
Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________
FILED JULY 31, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121310
GERALD LEE BABCOCK,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to consider
whether the trial court articulated a substantial and
compelling reason, as required under MCL 769.34(3), to justify
its downward departure from the statutory sentencing
guidelines. The Court of Appeals concluded that the trial
court did not abuse its discretion in departing from the
guidelines and, thus, affirmed defendant’s sentence. The
Court of Appeals concluded that some of the trial court’s
reasons for departing from the statutory sentencing guidelines
were not objective and verifiable and, therefore, not
substantial and compelling. Because the Court of Appeals did
not determine whether the trial court would have departed, and
would have departed to the same degree, had it not relied on
these improper factors, we reverse the judgment of the Court
of Appeals and remand this case to the Court of Appeals for
further consideration pursuant to this opinion.
I. FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty to two counts of second-degree
criminal sexual conduct and, in exchange, the prosecutor
dismissed the single original charge of first-degree criminal
sexual conduct. Although the statutory sentencing guidelines
called for a minimum range of thirty-six to seventy-one
months, the trial court sentenced defendant to three years’
probation and one year in jail; however, all but sixty days of
defendant’s jail term were suspended. The trial court’s
reasons for departing from the guidelines consisted of the
following: (1) defendant had no prior criminal record, (2) the
crime involved a family member, (3) a three-year minimum was
too “harsh,” and (4) treatment outside a prison environment
was more likely to rehabilitate defendant. In a published
decision (Babcock I), the Court of Appeals vacated defendant’s
sentence, having concluded that the trial court’s reasons for
2
the departure were not substantial and compelling.1
On remand, the trial court again sentenced defendant to
probation and a suspended jail term. The trial court
articulated additional reasons for the downward departure,
including the following: (1) the probation officer recommended
probation, rather than a prison term; (2) defendant’s trial
counsel, in an affidavit, recommended against a prison term;
(3) a great portion of the victim’s emotional harm was caused
by defendant’s uncle who abused her and from separation from
defendant’s grandmother; (4) letters from defendant’s
brother’s special-education teacher and attorney indicated
that defendant’s brother is severely disabled because of
cerebral palsy and mental retardation and that defendant is
his brother’s primary caregiver; (5) a letter from defendant’s
physician indicated that defendant suffers from herniated
discs; and, finally, (6) the fact that defendant’s uncle, who
has a normal intelligence level, played a much greater role in
harming the victim than did defendant, who has a “borderline
to-normal” intelligence level. After remand, in a published
decision (Babcock II), the Court of Appeals affirmed the
sentence, having concluded that, although some factors cited
by the trial court were not objective and verifiable, the
trial court did not abuse its discretion in departing from the
1 244 Mich App 64; 624 NW2d 479 (2000).
3
guidelines.2 We granted the prosecutor’s application for
leave to appeal.3
II. STANDARD OF REVIEW
This case presents an issue of statutory interpretation,
i.e., the interpretation of the statutory sentencing
guidelines, MCL 769.34, which we review de novo. Veenstra v
Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643
(2002).
III. ANALYSIS
A. HISTORY OF SENTENCING GUIDELINES
In 1983, this Court concluded that an appellate court has
the authority to review a trial court’s exercise of discretion
in sentencing. People v Coles, 417 Mich 523, 550; 339 NW2d
440 (1983). At the time Coles was decided, there were no
sentencing guidelines; instead, there were merely statutory
minimums and maximums for certain offenses, and a trial court
could sentence a convicted person to any period within this
statutory range.4 In Coles, this Court concluded that the
2 250 Mich App 463; 648 NW2d 221 (2002).
3 467 Mich 872 (2002).
4 At the time, there were also, as there continue to be,
mandatory sentences for certain offenses. For example, a
first-degree murder conviction mandates a sentence of
imprisonment for life, MCL 750.316, and a conviction for
possession of a firearm during the commission of a felony
mandates a sentence of imprisonment for two years, MCL
750.227b. Neither the judicial nor the statutory sentencing
guidelines would supersede a mandatory sentence.
4
appellate court could review a trial court’s selection of a
sentence within the statutory minimum and maximum; however,
the appellate court could “afford relief to the defendant only
if the appellate court finds that the trial court, in imposing
the sentence, abused its discretion to the extent that it
shocks the conscience of the appellate court.” Id.
In 1983, this Court crafted judicial sentencing
guidelines and promulgated these guidelines by administrative
order.5 As this Court explained in People v Hegwood, 465 Mich
432, 438; 636 NW2d 127 (2001):
This Court’s sentencing guidelines were
“mandatory” only in the sense that the sentencing
court was obliged to follow the procedure of
“scoring” a case on the basis of the circumstances
of the offense and the offender, and articulate the
basis for any departure from the recommended
sentence range yielded by this scoring. However,
because the recommended ranges found in the
judicial guidelines were not the product of
legislative action, a sentencing judge was not
necessarily obliged to impose a sentence within
those ranges.
In 1990, this Court overruled the Coles “shocks the
conscience” test and adopted in its place the “principle of
proportionality” test, “which requires sentences imposed by
the trial court to be proportionate to the seriousness of the
circumstances surrounding the offense and the offender.”
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). More
specifically, the Court stated that “the Legislature, in
5 Administrative Order No. 1983-3, 417 Mich cxxi (1983).
5 setting a range of allowable punishments for a single felony,
intended persons whose conduct is more harmful and who have
more serious prior criminal records to receive greater
punishment than those whose criminal behavior and prior record
are less threatening to society.” Id. at 651.
In 1998, the Legislature enacted statutory sentencing
guidelines, MCL 777.1 et seq.6 As this Court in Hegwood,
supra at 439, explained:
Because the new guidelines are the product of
legislative enactment, a judge’s discretion to
depart from the range stated in the legislative
guidelines is limited to those circumstances in
which such a departure is allowed by the
Legislature.
Under the statutory sentencing guidelines, a departure is only
allowed by the Legislature if there is a “substantial and
compelling reason” for doing so.7 MCL 769.34(3).8
6 The statutory sentencing guidelines are applicable to
enumerated felonies committed on or after January 1, 1999.
MCL 769.34(2).
7 It is only the minimum sentence that must presumptively
be within the appropriate sentence range. MCL 769.34(2). The
maximum sentence is either set by statute, e.g., the maximum
sentence for extortion is twenty years, MCL 750.213, or it
falls within the judge’s discretion. In exercising this
judicial discretion, the trial court cannot impose a minimum
sentence that exceeds two-thirds of the maximum sentence.
People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972); MCL
769.34(2)(b).
8
As explained in Hegwood, supra at 440 n 16: “In MCL
769.34(3), the Legislature states a rule that makes no
apparent distinctions between ‘upward departures,’ that
increase the sentence beyond the length stated in the
guidelines, and ‘downward departures,’ that decrease the
6
Accordingly, since the enactment of the statutory sentencing
guidelines, the role of the trial court has necessarily been
altered. Before the enactment of these guidelines, the trial
court was required to choose a sentence within the statutory
minimum and maximum that was “proportionate to the seriousness
of the circumstances surrounding the offense and the
offender.” Milbourn, supra at 636. Following the enactment
of these guidelines, the trial court is required to choose a
sentence within the guidelines range, unless there is a
“substantial and compelling” reason for departing from this
range.9 Consequently, and as discussed more fully below, the
role of the Court of Appeals has also changed from reviewing
the trial court’s sentencing decision for “proportionality” to
sentence below the length stated in the guidelines.”
9 In at least one circumstance, a sentence may constitute
a departure, and thus require the articulation of a
substantial and compelling reason, even though the sentence is
within the appropriate sentence range. People v Stauffer, 465
Mich 633, 636; 640 NW2d 869 (2002). MCL 769.34(4)(a)
provides:
If the upper limit of the recommended minimum
sentence range for a defendant determined under the
sentencing guidelines set forth in [MCL 777.1 et
seq.] is 18 months or less, the court shall impose
an intermediate sanction unless the court states on
the record a substantial and compelling reason to
sentence the individual to the jurisdiction of the
department of corrections . . . .
Accordingly, if the upper limit of the appropriate sentence
range is less than eighteen months, the sentencing court
cannot impose a prison sentence absent a finding of a
substantial and compelling reason.
7
reviewing the trial court’s sentencing decision to determine,
first, whether it is within the appropriate guidelines range
and, second, if it is not, whether the trial court has
articulated a “substantial and compelling” reason for
departing from such range.10
B. “SUBSTANTIAL AND COMPELLING REASON ”
The statutory sentencing guidelines, provide in pertinent
part:
A court may depart from the appropriate
sentence range established under the sentencing
guidelines set forth in [MCL 777.1 et seq.] 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).]
In People v Fields, 448 Mich 58; 528 NW2d 176 (1995), this
Court defined “substantial and compelling reasons” in the
context of departures from mandatory minimum sentences in
controlled-substance cases.11 This Court stated that “only
those factors that are objective and verifiable may be used to
judge whether substantial and compelling reasons exist
10 This is not to say, however, that proportionality is
irrelevant under the statutory sentencing guidelines. See
part 3(D).
11 At the time Fields was decided, the controlled substances act, MCL 333.7401(4), provided in relevant part:
The court may depart from the minimum term of
imprisonment . . . if the court finds on the record
that there are substantial and compelling reasons
to do so.
8
. . . .” Id. at 62. We further stated that “the reasons
justifying departure should ‘keenly’ or ‘irresistibly’ grab
our attention, and we should recognize them as being ‘of
considerable worth’ in deciding the length of a sentence.”
Id. at 67. Lastly, we stated, “the Legislature intended
‘substantial and compelling reasons’ to exist only in
exceptional cases.” Id. at 68.
“A legal term of art is a technical word or phrase that
has acquired a particular and appropriate meaning in the law.
It is, in a statute, to be construed and understood according
to such meaning.” People v Law, 459 Mich 419, 425 n 8; 591
NW2d 20 (1999), citing MCL 8.3a, which provides, “technical
words and phrases, and such as may have acquired a peculiar
and appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate
meaning.” The phrase “substantial and compelling reason” has,
in our judgment, acquired a peculiar and appropriate meaning
in the law and, thus, it must be construed according to such
meaning. That is, a “substantial and compelling reason” must
be construed to mean an “objective and verifiable” reason that
“‘keenly’ or ‘irresistibly’ grabs our attention”; is “of
‘considerable worth’ in deciding the length of a sentence”;
and “exists only in exceptional cases.” Fields, supra at 62,
9
67-68.12
C. “STATES ON THE RECORD ”
The statutory sentencing guidelines, MCL 769.34(3),
require the trial court to “state[] on the record the reasons
for departure.” Therefore, it is not enough that there exists
some potentially substantial and compelling reason to depart
from the guidelines range. Rather, this reason must be
articulated by the trial court on the record. Accordingly, on
review of the trial court’s sentencing decision, the Court of
Appeals cannot affirm a sentence on the basis that, even
12 Although the trial court may depart from the guidelines
range on the basis that a substantial and compelling reason to
do so exists, the trial court “shall not base a departure on
an offense characteristic or offender characteristic already
taken into account in determining the appropriate sentence
range unless the court finds . . . that the characteristic has
been given inadequate or disproportionate weight.” MCL
769.34(3)(b). Therefore, if the seriousness of the
defendant’s conduct and his criminal history have already been
taken into account in determining the guidelines range, they
cannot be used to justify the trial court’s departure, unless
the trial court finds that these factors have been given
inadequate or disproportionate weight.
For instance, if a defendant convicted of armed robbery
is scored 25 points under offense variable one because he
stabbed his victim, see MCL 777.31, that the defendant stabbed
his victim probably could not constitute a substantial and
compelling reason to justify a departure because the
Legislature has already determined what effect should be given
to the fact that a defendant has stabbed his victim and the
courts must abide by this determination. However, if the
defendant stabbed his victim multiple times, or in a manner
designed to inflict maximum harm, that might constitute a
substantial and compelling reason for a departure because
these characteristics may have been given inadequate weight in
determining the guidelines range.
10
though the trial court did not articulate a substantial and
compelling reason for departure, one exists in the judgment of
the panel on appeal. Instead, in such a situation, the Court
of Appeals must remand the case to the trial court for
resentencing or rearticulation. The obligation is on the
trial court to articulate a substantial and compelling reason
for any departure. As discussed below, the obligation of the
Court of Appeals is to review the trial court’s determination
that a substantial and compelling reason exists for
departure.13
Further, the trial court must go beyond articulating a
substantial and compelling reason for some departure. Rather,
the trial court can depart from the guidelines range only “if
the court has a substantial and compelling reason for that
departure . . . .” MCL 769.34(3) (emphasis added). As we
explained in Hegwood, supra at 437 n 10:
In light of such language, we do not believe
that the Legislature intended, in every case in
which a minimal upward or downward departure is
13 Although the trial court must articulate a substantial
and compelling reason to justify its departure, the trial
court is not required to use any formulaic or “magic” words in
doing so. Although the better practice may be for the trial
court to specifically state that “[t]he substantial and
compelling reason that justifies my twelve-month departure
here is . . . ,” something short of this may well suffice as
long as the trial court has articulated a substantial and
compelling reason that justifies its departure. In any event,
however it is articulated, the quality of the trial court’s
statement must be sufficient to allow for effective appellate
review.
11
justified by “substantial and compelling”
circumstances, to allow unreviewable discretion to
depart as far below or as far above the guideline
range as the sentencing court chooses. Rather, the
“substantial and compelling” circumstances
articulated by the court must justify the
particular departure in a case, i.e., “that
departure.” [Emphasis in original.]
Thus, the trial court must articulate on the record a
substantial and compelling reason to justify the particular
departure imposed.14
Because the trial court must articulate on the record a
substantial and compelling reason to justify the particular
departure, if the trial court articulates multiple reasons,
and the Court of Appeals determines that some of these reasons
are substantial and compelling and some are not, the panel
must determine the trial court’s intentions. That is, it must
determine whether the trial court would have departed and
would have departed to the same degree on the basis of the
substantial and compelling reasons alone.15 If the Court of
14 However, this is not to say that the trial court must
explain why it chose a twelve-month departure as opposed to an
eleven-month departure (or indeed as opposed to any one of
countless other potential departures). Rather, the trial
court must simply explain why the actual departure that it
imposed is justified by the substantial and compelling reasons
articulated.
15 When the trial court articulates multiple reasons for
its departure and possesses doubts regarding whether one of
these reasons is a substantial and compelling reason, but
would sentence the defendant the same regardless of this
reason, the best practice would be for the trial court to
explicitly state, if it is true, that “I would impose the same
sentence regardless of this reason.” However, something short
12
Appeals is unable to determine whether the trial court would
have departed to the same degree on the basis of the
substantial and compelling reasons, or determines that the
trial court would not have departed to the same degree on the
basis of the substantial and compelling reasons, the Court of
Appeals must remand the case to the trial court for
resentencing or rearticulation of its substantial and
compelling reasons to justify its departure.16 For instance,
if the trial court departs from the guidelines range by twelve
months and articulates reasons A, B, and C to justify this
departure, and if the Court of Appeals determines that reasons
A and B are not substantial and compelling reasons,17 but that
C is, the Court of Appeals must determine whether the trial
of such an explicit statement may well suffice as long as it
is clear from the record that the trial court would not have
sentenced defendant differently if it had not relied on this
improper reason.
16 On remand, the trial court does not necessarily have
to impose a different sentence. It may impose the same
sentence as long as it articulates a substantial and
compelling reason that justifies this sentence.
17 There are several reasons the Court of Appeals may
determine that a reason is not a substantial and compelling
reason, such as that it is not “objective and verifiable”; it
does not “‘keenly’ or ‘irresistibly’ grab our attention”; or
it is not of “‘considerable worth’” in deciding the length of
a sentence.” Fields, supra at 62, 67. Additionally, it may
be concluded that an offense or offender characteristic has
already been taken into account in determining the guidelines
range, and that the trial court has not found that the
characteristic has been given inadequate or disproportionate
weight. MCL 769.34(3)(b).
13
court would have departed from the guidelines range by twelve
months on the basis of reason C alone.
D. PROPORTIONALITY
If the trial court’s sentence is within the appropriate
guidelines range, the Court of Appeals must affirm the
sentence unless the trial court erred in scoring the
guidelines or relied on inaccurate information in determining
the defendant’s sentence. MCL 769.34(10).18 However, if the
sentence is not within the guidelines range, the Court of
Appeals must determine whether the trial court articulated a
substantial and compelling reason to justify its departure
from that range. MCL 769.34(11).19
In determining whether a sufficient basis exists to
justify a departure, the principle of proportionality—that is,
18 MCL 769.34(10) provides in relevant part:
If a minimum sentence is within the
appropriate guidelines sentence range, the court of
appeals shall affirm that sentence and shall not
remand for resentencing absent an error in scoring
the sentencing guidelines or inaccurate information
relied upon in determining the defendant’s
sentence. . . .
19 MCL 769.34(11) provides:
If, upon review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
14
whether the sentence is proportionate to the seriousness of
the defendant’s conduct and to the defendant in light of his
criminal record—defines the standard against which the
allegedly substantial and compelling reasons in support of
departure are to be assessed.20 The relevancy of
proportionality is obvious. As in any civilized society,
punishment should be made to fit the crime and the criminal.
BMW of North America, Inc, v Gore, 517 US 559, 576 n 24; 116
S Ct 1589; 134 L Ed 2d 809 (1996)(“The principle that
punishment should fit the crime ‘is deeply rooted and
frequently repeated . . . .’”)(citation omitted); Weems v
United States, 217 US 349, 367; 30 S Ct 544; 54 L Ed 793
(1910)(“It is a precept of justice that punishment for crime
should be graduated and proportioned to the offense.”);
Thomas Jefferson, A Bill for Proportioning Crimes & Punishment
in Virginia, 1779 (“[G]overnment would be defective in its
principal purpose [were it not] a duty in the legislature to
arrange in a proper scale the crimes which it may be necessary
for them to repress, and to adjust thereto a corresponding
gradation of punishments”); Beccaria, On Crimes and
Punishments (1764)(“Therefore, the means made use of by the
20 In other words, while “substantial and compelling” sets
forth the quality of the reasons that must be set forth in
support of a departure from the guidelines, the principle of
“proportionality” defines the standard against which the
decision to depart, and the particular departure imposed, must
be assessed.
15
legislature to prevent crimes should be more powerful in
proportion as they are destructive of the public safety and
happiness, and as the inducements to commit them are stronger.
Therefore there ought to be a fixed proportion between crimes
and punishments.”); Note, Mandatory life sentence without
parole found constitutionally permissible For cocaine
possession-Harmelin v Michigan, 67 Wash L R 713, 714 (1992)
(“The belief that the punishment should fit the crime is
deeply rooted in Western civilization. The proportionality
concept appears in fundamental social documents such as the
Bible and the Magna Carta.”) Accordingly, jaywalking is not
punishable by life imprisonment, first-degree murder is not
punishable by thirty days in jail, and a person convicted of
robbery for the fourth time generally faces a more severe
punishment than a person convicted of robbery for the first
time. The premise of our system of criminal justice is that,
everything else being equal, the more egregious the offense,
and the more recidivist the criminal, the greater the
punishment.
The Legislature has subscribed to this principle of
proportionality in establishing mandatory sentences as well as
minimum and maximum sentences for certain offenses. See
Milbourn, supra at 635-636. It has also subscribed to this
principle of proportionality in establishing the statutory
sentencing guidelines. Under the guidelines, offense and
16
prior record variables are scored to determine the appropriate
sentence range. Offense variables take into account the
severity of the criminal offense, while prior record variables
take into account the offender’s criminal history. Therefore,
the appropriate sentence range is determined by reference to
the principle of proportionality; it is a function of the
seriousness of the crime and of the defendant’s criminal
history.
Accordingly, in considering whether to depart from the
guidelines, the trial court must ascertain whether taking into
account an allegedly substantial and compelling reason would
contribute to a more proportionate criminal sentence than is
available within the guidelines range. In other words, if
there are substantial and compelling reasons that lead the
trial court to believe that a sentence within the guidelines
range is not proportionate to the seriousness of the
defendant’s conduct and to the seriousness of his criminal
history, the trial court should depart from the guidelines.
Additionally, in departing from the guidelines range, the
trial court must consider whether its sentence is
proportionate to the seriousness of the defendant’s conduct
and his criminal history because, if it is not, the trial
court’s departure is necessarily not justified by a
substantial and compelling reason.
17
E. STANDARD OF REVIEW OF SENTENCES OUTSIDE GUIDELINES
In Babcock I, supra at 75-76, the Court of Appeals,
quoting Fields, supra at 77-78, concluded that
“the existence or nonexistence of a particular
factor is a factual determination for the
sentencing court to determine, and should therefore
be reviewed by an appellate court for clear error.
The determination that a particular factor is
objective and verifiable should be reviewed by the
appellate court as a matter of law. A trial
court’s determination that the objective and
verifiable factors present in a particular case
constitute substantial and compelling reasons to
depart from the statutory minimum sentence shall be
reviewed for abuse of discretion.”
We agree.
In Babcock II, supra at 467 n 3, the Court of Appeals
concluded that, although it was bound by the above language,
it “question[ed] the Babcock I holding regarding the abuse of
discretion standard of review in light of the language in MCL
769.34(11), which appears to suggest that our review is de
novo.” MCL 769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
Defendant contends that the trial court’s decision that
there is a substantial and compelling reason to depart from
the guidelines range should be reviewed for an abuse of
discretion. On the other hand, the prosecutor contends that
18
such a decision should be reviewed de novo. Although we agree
with Babcock I’s articulation of the applicable standards of
review—whether a factor exists is reviewed for clear error,
whether a factor is objective and verifiable is reviewed de
novo, and whether a reason is substantial and compelling is
reviewed for abuse of discretion—we take this opportunity to
clarify the meaning of an abuse of discretion with regard to
the Court of Appeals review of a trial court’s decision that
there is a substantial and compelling reason that justifies a
sentencing departure.
In Babcock I, the Court of Appeals quoted the abuse of
discretion test taken from Spalding v Spalding, 355 Mich 382,
384-385; 94 NW2d 810 (1959), which is that an abuse of
discretion occurs when the lower court’s decision is “so
palpably and grossly violative of fact and logic that it
evidences not the exercise of will but perversity of will, not
the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias.”
The Spalding abuse of discretion standard is one that
entitles the trial court the utmost level of deference. In
our judgment, while the Legislature intended to accord
deference to the trial court’s departure from the sentencing
guidelines range, it did not intend this determination to be
entitled to Spalding’s extremely high level of deference.
19
MCL 769.34(11) clearly states that if “the court of
appeals finds the trial court did not have a substantial and
compelling reason for departing from the appropriate sentence
range, the court shall remand the matter to the sentencing
judge or another trial court judge for resentencing . . . .”
“Find” is defined as: “to discover or perceive after
consideration . . . .” Random House Webster’s College
Dictionary (1991). Therefore, if, after consideration, the
Court of Appeals discovers or perceives that the trial court
did not have a substantial and compelling reason to justify
its departure, the Court must remand the case for
resentencing. This statute clearly does not require the Court
of Appeals, in accord with Spalding, to affirm “unless the
result [is] so palpably and grossly violative of fact and
logic that it evidences not the exercise of will but the
perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or
bias.”21 Spalding, supra at 384-385.
21 Further, application of Spalding’s abuse of discretion
standard to the trial court’s finding of a substantial and
compelling reason to justify its departure from the guidelines
range would not further the manifest purpose of the statutory
sentencing guidelines. The Legislature adopted these
guidelines intending to reduce unjustified disparities in
sentencing. See 1994 PA 445, § 33(1)(e)(iv)(stating that
sentencing guidelines shall, “Reduce sentencing disparities
based on factors other than offense characteristics and
offender characteristics and ensure that offenders with
similar offense and offender characteristics receive
substantially similar sentences.”)(repealed March 7, 2002).
20
That said, some degree of deference is nevertheless owed
the trial court’s finding, and thus a review de novo would be
inappropriate. The structure and content of the sentencing
guidelines, as well as the organization of the appellate
system itself, plainly reveal the Legislature’s recognition
that the trial court is optimally situated to understand a
criminal case and to craft an appropriate sentence for one
convicted in such a case. For example, the trial court “may
depart from the appropriate sentence range established under
the sentencing guidelines . . . if the court has a substantial
and compelling reason for that departure. . . .” MCL
769.34(3). Additionally, the trial court may even “base a
departure on an offense characteristic or offender
characteristic already taken into account in determining the
appropriate sentence range” if “the court finds . . . that the
characteristic has been given inadequate or disproportionate
weight.” MCL 769.34(3)(b). Finally, the Court of Appeals
must affirm the trial court’s sentence if it is within the
appropriate guidelines range, unless the trial court made an
“Thus, the very premise of the guidelines is that judicial
discretion will be restricted to a certain degree.” Hegwood,
supra at 438. However, if the trial court is allowed to
depart from the guidelines unless its decision to do so is “so
palpably and grossly violative of fact and logic that it
evidences not the exercise of will but the perversity of will,
not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias,” Spalding,
supra, the Legislature’s intent to reduce unjustified
disparities in sentencing will be significantly thwarted.
21
error in scoring the sentencing guidelines or relied on
inaccurate information in determining the sentence. MCL
769.34(10).
It is clear that the Legislature has imposed on the
trial court the responsibility of making difficult decisions
concerning criminal sentencing, largely on the basis of what
has taken place in its direct observation. Review de novo is
a form of review primarily reserved for questions of law, the
determination of which is not hindered by the appellate
court’s distance and separation from the testimony and
evidence produced at trial. The application of the statutory
sentencing guidelines to the facts is
not a generally recurring, purely legal matter,
such as interpreting a set of legal words, say,
those of an individual guideline, in order to
determine their basic intent. Nor is that question
readily resolved by reference to general legal
principles and standards alone. Rather, the
question at issue grows out of, and is bounded by,
case-specific detailed factual circumstances.
[Buford v United States, 532 US 59, 65; 121 S Ct
1276; 149 L Ed 2d 197 (2001).]
Because of the trial court’s familiarity with the facts and
its experience in sentencing, the trial court is better
situated than the appellate court to determine whether a
departure is warranted in a particular case. Accordingly,
review de novo, in which a panel of appellate judges could
substitute its own judgment for that of the trial court, is
surely not the appropriate standard by which to review the
22
determination that a substantial and compelling reason exists
to justify a departure from the guidelines range. Instead,
the appellate court must accord this determination some degree
of deference.
Therefore, the appropriate standard of review must be one
that is more deferential than de novo, but less deferential
than the Spalding abuse of discretion standard. At its core,
an abuse of discretion standard acknowledges that there will
be circumstances in which there will be no single correct
outcome; rather, there will be more than one reasonable and
principled outcome. See People v Talley, 410 Mich 378, 398;
301 NW2d 809 (1981)(LEVIN , J., concurring), quoting Langes v
Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931)(“‘The
term “discretion” denotes the absence of a hard and fast
rule.’”). When the trial court selects one of these
principled outcomes, the trial court has not abused its
discretion and, thus, it is proper for the reviewing court to
defer to the trial court’s judgment. An abuse of discretion
occurs, however, when the trial court chooses an outcome
falling outside this principled range of outcomes. See
Conoco, Inc, v JM Huber Corp, 289 F3d 819, 826 (CA Fed,
2002)(“Under an abuse of discretion review, a range of
reasonable determinations would survive review.”); United
States v Penny, 60 F3d 1257, 1265 (CA 7, 1995)(“a court does
not abuse its discretion when its decision ‘is within the
23
range of options from which one would expect a reasonable
trial judge to select’”)(citation omitted). We believe that
this test more accurately describes the appropriate range of
the trial court’s discretion with regard to determining
whether a substantial and compelling reason exists to justify
its departure from the appropriate sentence range. Further,
we believe that this test will contribute significantly to
more consistent sentencing, both by enabling the Court of
Appeals to more effectively constrain departures from the
appropriate range of discretion by trial courts and by
imposing a more consistent standard of review upon the Court
of Appeals itself.
Accordingly, the Court of Appeals must determine, upon a
review of the record, whether the trial court had a
substantial and compelling reason to depart from the
guidelines, recognizing that the trial court was in the better
position to make such a determination and giving this
determination appropriate deference. The deference that is
due is an acknowledgment of the trial court’s extensive
knowledge of the facts and that court’s direct familiarity
with the circumstances of the offender. The Court of Appeals
is to conduct the thorough review required by MCL 769.34(11),
honoring the prohibition against departures not grounded in a
substantial and compelling reason. MCL 769.34(3). In doing
so, however, the Court must proceed with a caution grounded in
24
the inherent limitations of the appellate perspective.
IV. APPLICATION
In this case, the Court of Appeals concluded that some of
the reasons articulated by the trial court were not objective
and verifiable. As explained above, if a reason is not
objective and verifiable, it cannot constitute a substantial
and compelling reason.22 As also explained above, if the trial
court articulates multiple reasons, and the Court of Appeals,
as in this case, determines that some of these reasons are
substantial and compelling and some are not, and the Court of
Appeals is unable to determine whether the trial court would
have departed to the same degree on the basis of the
substantial and compelling reasons, the Court must remand the
case to the trial court for resentencing or rearticulation.
Because the Court of Appeals in this case did not determine
whether the trial court would have departed, and would have
departed to the same degree, absent consideration of the
reasons that the Court of Appeals found to be not objective
and verifiable, we reverse its judgment and remand this case
to the Court of Appeals for further consideration.
V. CONCLUSION
For the above reasons, we reverse the judgment of the
22 While a reason cannot be a substantial and compelling
reason unless it is objective and verifiable, the opposite is
not always true. A reason can be objective and verifiable
without being substantial and compelling.
25
Court of Appeals and remand this case to the Court of Appeals
for further consideration pursuant to this opinion.
Stephen J. Markman
Marilyn Kelly
Clifford W. Taylor
CORRIGAN, C.J.
I concur in all except parts IIIC and IV.
Maura D. Corrigan
CAVANAGH, J.
I concur in all except part IIIB.
Michael F. Cavanagh
APPENDIX
In order to assist the bench and bar, the following is a
summary of the responsibilities of the trial court and Court
of Appeals under the statutory sentencing guidelines:
1. A trial court is required to choose a minimum
sentence within the guidelines range, unless there is a
substantial and compelling reason for departing from this
range. MCL 769.34(2), (3).
2. If a trial court’s sentence is within the guidelines
range, the Court of Appeals must affirm the sentence unless
the trial court erred in scoring the guidelines or relied on
inaccurate information in determining the defendant’s
sentence. MCL 769.34(10).
26
3. A substantial and compelling reason must be
“objective and verifiable”; must “‘keenly’ or ‘irresistibly’
grab our attention”; and must be “of ‘considerable worth’ in
deciding the length of a sentence.” Fields, supra at 62, 67.
4. A trial court must articulate on the record a
substantial and compelling reason for its particular
departure, and explain why this reason justifies that
departure. MCL 769.34(3); People v Daniel, 462 Mich 1, 9; 609
NW2d 557 (2000).
5. A trial court “shall not base a departure on an
offense characteristic or offender characteristic already
taken into account in determining the appropriate sentence
range unless the court finds . . . that the characteristic has
been given inadequate or disproportionate weight.” MCL
769.34(3)(b).
6. In considering whether, and to what extent, to depart
from the guidelines range, a trial court must ascertain
whether taking into account an allegedly substantial and
compelling reason would contribute to a more proportionate
criminal sentence than is available within the guidelines
range. MCL 769.34(3).
7. In reviewing sentencing decisions, the Court of
Appeals may not affirm a sentence on the basis that, although
the trial court did not articulate a substantial and
compelling reason for a departure, one nonetheless exists in
27
the judgment of the Court of Appeals. Instead, in such a
situation, the Court of Appeals must remand the case to the
trial court for resentencing. MCL 769.34(3); MCL 769.34(11).
8. If a trial court articulates multiple “substantial
and compelling” reasons for a departure from the guidelines,
and the Court of Appeals determines that some of these reasons
are substantial and compelling and others are not, the panel
must determine whether the trial court would have departed,
and would have departed to the same degree, on the basis of
the substantial and compelling reasons alone. MCL 769.34(3).
9. If a trial court departs from the guidelines range,
and its sentence is not based on a substantial and compelling
reason to justify the particular departure, i.e., the sentence
is not proportionate to the seriousness of the defendant’s
conduct and his criminal history, the Court of Appeals must
remand to the trial court for resentencing. MCL 769.34(11).
10. “‘[T]he existence or nonexistence of a particular
[sentencing] factor is a factual determination for the
sentencing court to determine, and should therefore be
reviewed by an appellate court for clear error.’” Babcock I,
supra at 75-76, quoting Fields, supra at 77.
11. “‘The determination that a particular [sentencing]
factor is objective and verifiable should be reviewed by the
appellate court as a matter of law.’” Babcock I, supra at 76,
quoting Fields, supra at 78.
28
12. “‘A trial court’s determination that the objective
and verifiable factors present in a particular case constitute
substantial and compelling reasons to depart from the
statutory minimum sentence shall be reviewed for abuse of
discretion.’” Babcock I, supra at 76, quoting Fields, supra
at 78. An abuse of discretion occurs when the trial court
chooses an outcome falling outside the permissible principled
range of outcomes.
29
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121310
GERALD LEE BABCOCK,
Defendant-Appellee.
____________________________________
CORRIGAN, C.J. (concurring in part and dissenting in part).
Although I concur with much of the majority’s analysis
and its result, I cannot agree with the majority’s analysis of
the remand requirement. Accordingly, I respectfully dissent
in part.
I would limit the requirement of a reviewing court to
remand for resentencing or rearticulation to that explicitly
provided by the Legislature in MCL 769.34(11). Rather than
interpret the statutory text, the majority creates a new
remand requirement out of whole cloth. The majority concludes
that “if the trial court articulates multiple reasons [for
departure], and the appellate court . . . determines that some
of these reasons are substantial and compelling and some are
not, and the Court of Appeals is unable to determine whether
the trial court would have departed to the same degree on the
basis of the substantial and compelling reasons, the Court
must remand the case to the trial court for resentencing or
rearticulation.” Ante at 26. This formulation is found
nowhere in the text of the sentencing guidelines and imposes
an unnecessary burden on both sentencing and reviewing courts.
MCL 769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentence range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter. [Emphasis added.]
The Legislature only requires the reviewing court to determine
whether the trial court had “a substantial and compelling
reason” for departing from the sentencing range. Therefore,
under the statute, the Court of Appeals may only remand for
resentencing or rearticulation if it finds that the trial
court did not articulate a single substantial and compelling
reason for the departure.
In determining whether a trial court articulated a
substantial and compelling reason for departing from the
appropriate sentence range, the Court of Appeals must
necessarily determine whether the trial court met the
requirements of MCL 769.34(3): (1) did the trial court
articulate a substantial and compelling reason for that
2
particular departure, and (2) did the trial court state that
substantial and compelling reason on the record. Provided the
trial court complied with the requirements of MCL 769.34(3),
with the result that the Court of Appeals finds at least one
substantial and compelling reason for the departure imposed by
the trial court, then MCL 769.34(11) does not require a
remand.
Using the hypothetical example proposed by the majority,
even if a trial court provides multiple reasons for a
departure and some of those reasons are later determined not
to be substantial and compelling, the statute only requires a
remand if the Court of Appeals finds that the trial court did
not provide a single substantial and compelling reason for
that departure from the statutory sentence range. There is no
textual support for the majority’s requirement that the Court
of Appeals must remand any time any reason is determined not
to be substantial and compelling, no matter how many
substantial and compelling reasons remain, unless it is clear
to the reviewing court that the trial court would have imposed
the same departure on the basis of the remaining reasons.
Not only is the majority’s analysis without textual
support, it also renders MCL 769.34(11) superfluous. It is a
cardinal rule of statutory interpretation that “effect shall
be given to every word, phrase, or clause of a statute.”
3
Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d
567 (2002). The majority’s interpretation, however, gives no
meaning to the Legislature’s explicit provision regarding
appellate review; rather, it simply collapses the appellate
inquiry into the initial determination to depart under MCL
739.34(3). In doing so, the majority ignores the
Legislature’s decision to specify the scope and purpose of
review by the Court of Appeals in subsection 11.
Had the Legislature intended to require the Court of
Appeals to read the mind of the trial court in conducting its
review, it would have been sufficient to set forth the trial
court requirements in subsection 3 and omit subsection 11.
Instead, the Legislature provided for a specific standard of
review by the Court of Appeals in subsection 11: the Court of
Appeals shall only remand “[i]f, upon a review of the record,
the court of appeals finds the trial court did not have a
substantial and compelling reason for departing from the
appropriate sentence range.” If the majority’s analysis is
correct and the Court of Appeals must remand every time it is
unable to discern whether the trial court would have made the
same departure under the existing substantial and compelling
reasons, this language has no meaning.
The plain language of subsection 11 requires the Court of
Appeals to conduct its own inquiry regarding whether the trial
4
court articulated a substantial and compelling reason for
departing from the guidelines. Random House Webster’s College
Dictionary (2d ed, 1997), defines “find” as “to discover or
perceive after consideration,” “to ascertain by study or
calculation,” and “to determine after a judicial inquiry.”
Therefore, subsection 11 requires the Court of Appeals, upon
reviewing the record provided by the trial court, to
“discover,” “ascertain,” or “determine” whether the trial
court had a substantial and compelling reason for departing
from the guidelines. This is the entire scope and function of
the Court of Appeals inquiry. Nothing in the statutory text
requires the Court of Appeals to “find” that the trial court
would have departed and departed to the same degree on the
basis of a substantial and compelling reason, as the majority
would require. The Legislature provided only that the Court
of Appeals must determine for itself whether the trial court
articulated at least one substantial and compelling reason for
departing from the guidelines, and we are bound by that
legislative provision. The majority’s creation of an
extratextual remand inquiry renders subsection 11 superfluous
and usurps legislative authority.
Further, as a practical matter, the majority’s approach
will force the Court of Appeals to remand innumerable cases to
the trial courts for resentencing or rearticulation. In any
5
case in which the Court of Appeals is not comfortable with its
ability to divine the workings of the mind of the sentencing
judge, it will be forced to remand even though it finds that
a substantial and compelling reason justifies the departure.
This extreme level of inefficiency is not required by the
statutory text and will create needless additional work for an
already overburdened trial bench. To mitigate the effect of
the majority’s extratextual requirement, I strongly suggest
that every trial judge add the following disclaimer to the end
of every judgment of sentence:
I am persuaded that the defendant should serve
the sentence I have rendered and it is my intention
that this sentence be sustained if an appellate
court determines that any of my rationales for
departure survive review.
Although this disclaimer is not required by the statutory
text, it is now functionally required by the majority’s
creation of a new remand inquiry.
Because I believe we are bound by the statutory language,
I would hold that a remand is only required under MCL
769.34(11) if the Court of Appeals, after reviewing the record
provided by the trial court, determines that there is not a
single substantial and compelling reason for departing from
the guidelines, as defined in MCL 769.34(3).
Accordingly, I respectfully dissent in part from the
majority’s decision.
6
Maura D. Corrigan
Robert P. Young, Jr.
7 S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121310
GERALD LEE BABCOCK,
Defendant-Appellee. ___________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority except to the extent it continues to utilize the definition
of “substantial and compelling reasons” from People v Fields, 448 Mich 58; 528 NW2d
176 (1995). Ante at 7-8. I remain committed to the Fields dissent and would not
improperly impose limitations on the types of factors a sentencing court may consider.
In Fields, this Court addressed “substantial and compelling reasons” necessary
for departure under the controlled substance act, then in effect, and stated that “only
those factors that are objective and verifiable may be used to judge whether substantial
and compelling reasons exist.” Fields at 62. The Fields dissent conducted an
exhaustive review of the case law interpreting “substantial and compelling,” as used in
the statute at issue, and the Legislature’s intent in enacting the statute. The dissent also examined the plain language of the statute at issue and pointed out that the Legislature
did not specify any limit on the types of factors the sentencing court may consider.
Fields at 99 (CAVANAGH,J., dissenting). The Legislature only specified that the reasons
for a sentencing departure must meet the substantial and compelling threshold. Id.
There is nothing in the language of the statute or the legislative history limiting a
sentencing judge’s consideration to only “objective and verifiable” factors. Therefore,
a sentencing court should consider all the factors and circumstances surrounding an
individual case.
Additionally, what rises to the level of substantial and compelling is clearly
subjective. “It relates to this defendant and to this sentencing judge, who is examining
this individual and this offense.” Id. at 104 (emphasis in original). Thus, the weighing
of all the factors and circumstances before the sentencing court includes inherently
subjective inquiries.
Further, as was discussed at length in the Fields dissent, the “objective”
limitation is unworkable. See, e.g., Id. at 95-96, 101-102, 103-104, 105-106. There are
certain factors, such as a defendant’s remorse or a defendant’s family support, that
may be considered objective by one sentencing judge and subjective by another. The
dissent in Fields stated, “[t]he better test is whether the sentencing judge is satisfied
that the nature and extent of the defendant’s remorse [or family support] are
substantial and compelling reasons to support a sentencing departure.” Id. at 105. I
remain committed to the position that the “objective” criteria utilized by this Court is
unworkable.
Therefore, while I agree with the remainder of the majority opinion, I must
2
dissent to the extent this Court continues to employ the Fields “objective” definition of
“substantial and compelling reasons.”
Michael F. Cavanagh
3
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121310
GERALD LEE BABCOCK,
Defendant-Appellee.
____________________________________
WEAVER, J. (dissenting in part and concurring in part).
I dissent from the majority’s result and opinion and
would affirm the Court of Appeals decision. I dissent because
(1) I continue to believe that the phrase “a substantial and
compelling reason” does not limit the trial court to
considering only factors that are “objective and verifiable”
and (2) I agree with the standard for remand articulated by
the Chief Justice in her partial dissent rather than with the
majority’s remand analysis. I concur only in (1) the
majority’s basic recognition that the language of MCL
769.34(3) requires the court to state on the record a
substantial and compelling reason for departing from the
guidelines and (2) the majority’s refinement of the abuse of
discretion standard.
First, pursuant to the legislative sentencing guidelines,
A court may depart from the appropriate
sentence range established under the sentencing
guidelines set forth in [MCL 777.1 et seq.] if the
court has a substantial and compelling reason for
that departure and states on the record the reasons
for that departure. All of the following apply to
a departure:
(a) The court shall not use an individual’s
gender, race, ethnicity, alienage, national origin,
legal occupation, lack of employment,
representation by appointed legal counsel,
appearance in propria persona, or religion to
depart from the appropriate sentence range.
(b) The court shall not base a departure on an
offense characteristic or offender characteristic
already taken into account in determining the
appropriate sentence range unless the court finds
from the facts contained in the court record,
including the presentence investigation report,
that the characteristic has been given inadequate
or disproportionate weight. [MCL 769.34(3).]
While I concur in the majority’s basic recognition that the
language of the statute requires the trial court to state on
the record “a substantial and compelling reason” for its
departure from the sentencing guidelines, I dissent from the
rest of the majority’s analysis. The language of the statute
is plain and unambiguous, and the majority’s excessive
interpretation of this language, which is clear on its face,
is unnecessary.
Second, I agree with the standard for remand articulated
by the Chief Justice in her partial concurrence and partial
2
dissent, rather than with the majority’s remand analysis. MCL
769.34(11) provides:
If, upon a review of the record, the court of
appeals finds the trial court did not have a
substantial and compelling reason for departing
from the appropriate sentencing range, the court
shall remand the matter to the sentencing judge or
another trial court judge for resentencing under
this chapter.
Pursuant to this language, a remand to the trial court is only
required “if the Court of Appeals, after reviewing the record
provided by the trial court, determines that there is not a
single substantial and compelling reason for departing from
the guidelines, as defined in MCL 769.34(3).” Ante at 7.
Further, as the Chief Justice notes, the majority’s approach
will, as a practical matter, “force the Court of Appeals to
remand innumerable cases to the trial courts for resentencing
or rearticulation” and “will create needless additional work
for an already overburdened trial bench.” Ante at 6.
Consequently, I agree with the Chief Justice that the
majority’s opinion functionally requires at the end of every
judgment of sentence the disclaimer she articulates.
Third, I continue to believe that a “substantial and
compelling reason” does not limit the trial court to
considering only factors that are “objective and verifiable.”
Rather, I continue to subscribe to the position articulated in
my dissent in People v Daniel, 462 Mich 1, 22-23; 609 NW2d 557
3
(2000), that all relevant factors, not only those that are
objective and verifiable, should be considered when
determining whether there is a substantial and compelling
reason to depart from the sentencing guidelines.
Fourth, I concur with the majority’s refinement of the
abuse of discretion standard. Ante at 19-24. The abuse of
discretion standard, as previously articulated in Spalding v
Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), was so
exaggerated that it unreasonably limited appellate court
review.
Sentencing a defendant for the crime committed is a
discretionary act. As recognized by the majority, “the trial
court is optimally situated to understand a criminal case and
to craft an appropriate sentence for one convicted in such a
case.” Ante at 21. Consequently, a considerable degree of
deference should be afforded the trial court. Today, the
majority provides a reasonable definition of that deferential
standard:
At its core, an abuse of discretion standard
acknowledges that there will be circumstances in
which there will be no single correct outcome;
rather, there will be more than one reasonable and
principled outcome. When the trial court selects
one of these principled outcomes, the trial court
has not abused its discretion and, thus, it is
proper for the reviewing court to defer to the
trial court’s judgment. An abuse of discretion
occurs, however, when the trial court chooses an
outcome falling outside this principled range of
4
outcomes. [Ante at 22-23 (citations omitted).]
I emphasize that according to this standard, the trial court
does not abuse its discretion if it selects a different
principled outcome than the reviewing court would have chosen
from the range of principled outcomes.
Applying the principles discussed herein to the facts of
this case and considering all relevant factors, I would
conclude that the trial court did not abuse its discretion in
departing downward from the sentencing guidelines. The trial
court offered the following reasons for its departure: (1) the
probation agent recommended probation, (2) abuse of the victim
by her uncle and separation from her grandmother caused a
great part of the harm suffered by the victim, (3) defendant’s
original attorney recommended probation, (4) correspondence
from defendant’s brother’s special-education teacher and from
defendant’s brother’s attorney indicated that defendant was
the caregiver for his brother, who suffers severe disability
because of cerebral palsy and mental retardation, and (5) a
letter from defendant’s physician indicated that defendant has
a herniated disc in his back. The articulation of these
factors satisfies the requirement that the trial court
articulate a substantial and compelling reason on the record
for its downward departure. Moreover, the trial court’s
decision did not venture beyond the range of principled
5
outcomes under the circumstances. Therefore, the trial court
did not abuse its discretion, and the judgment of the Court of
Appeals should be affirmed.
Elizabeth A. Weaver
6