Opinion
No. 341901 No. 342497 No. 342598 No. 344475
02-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ERIN RENEE YOUNGLOVE, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARRELL WAYNE HEGLER, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LUKE MATTHEW WILSON, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. FREDERICK ANTHONY BRADFORD, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court
LC No. 16-000659-FH Berrien Circuit Court
LC No. 2017-002319-FH Ionia Circuit Court
LC No. 2016-016809-FH Missaukee Circuit Court
LC No. 2017-002882-FH Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ. PER CURIAM.
In these consolidated appeals, defendants object to the use of the Correctional Offender Management Profiling for Alternative Solutions (COMPAS) risk-assessment tool at sentencing by way of the inclusion of some COMPAS-based information in their presentence investigation reports (PSIR). Defendants all were convicted by plea and challenge their respective sentences by delayed leave granted. We affirm.
See People v Bradford, unpublished order of the Court of Appeals, entered August 2, 2018 (Docket No. 344475).
People v Younglove, unpublished order of the Court of Appeals, entered February 16, 2018 (Docket No. 341901); People v Hegler, unpublished order of the Court of Appeals, entered March 30, 2018 (Docket No. 342497); People v Wilson, unpublished order of the Court of Appeals, entered April 26, 2018 (Docket No. 342598); People v Bradford, unpublished order of the Court of Appeals, entered August 2, 2018 (Docket No. 344475).
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In Docket No. 341901, defendant Erin Renee Younglove appeals her sentence of three years' probation with one year in jail, which the trial court imposed following her plea of guilty to one count of obtaining pseudoephedrine to make methamphetamine, MCL 333.17766c(1)(d). In Docket No. 342497, defendant Darrell Hegler appeals his sentence of 1½ to 5 years' imprisonment, which the trial court imposed following his plea of guilty to one count of operating a vehicle while intoxicated, third offense, MCL 257.625(1). In Docket No. 342598, defendant Luke Matthew Wilson appeals his sentence of 20 to 60 months' imprisonment, which the trial court imposed following his plea of guilty to one count of first-degree retail fraud, MCL 750.356c(1). And in Docket No. 344475, defendant Frederick Anthony Bradford appeals his sentence of 1½ to 5 years' imprisonment, which the trial court imposed following his plea of no-contest to one count of larceny of a firearm, MCL 750.357b.
A 2017 report from the Michigan Department of Corrections (MDOC) describes how COMPAS is used to assist in making decisions concerning an offender, and notes that "[MDOC] utilizes four different COMPAS assessments, depending on the status of the offender at the time of the assessment." Michigan Department of Corrections, Field Operations Administration, Administration and Use of COMPAS in the Presentence Investigation Report (2017), p 9. Relevant to these appeals, the "CORE COMPAS" assessment is administered "[f]or offenders at sentencing" as "part of the Presentence Investigation interview." Id. at 10. This assessment is intended to measure the "likelihood of future Violent or Non-Violent Felony Offenses." Id.
The additional assessments used by MDOC are COMPAS Reentry, which is administered to prisoners who are potentially returning to the community, as well as gender-specific assessments for adults and an assessment for youths 17 and younger. See id. at 10-11.
A 2015 statement from the Director of MDOC is included as prefatory material in the 2017 report. The statement expresses the opinion that
including information gleaned from the COMPAS assessment will greatly enhance our ability to address the issues that may have contributed to the offender's criminal behavior and to assist in developing a formal plan to address these issues. The [PSIR] currently provides the sentencing court with a thorough background of the offender being sentenced that includes their criminal history/family/education/substance abuse and health history, as well as a sentencing recommendation. Including information from an evidence-based, risk/need assessment like COMPAS [ensures] that the court has the information it needs to craft an objectively well-informed plan of supervision for the offender that addresses their criminogenic needs.
In these cases, each of the sentencing courts was at some point presented with a PSIR that made reference to COMPAS. Defendant Younglove's initial PSIR stated that "[t]he COMPAS screening indicates the defendant is a medium risk to the community." However, at the initial sentencing hearing, the trial court elected to delay sentencing in order to provide Younglove the opportunity to obtain substance abuse treatment; when Younglove was sentenced six months later, the updated PSIR prepared for her sentencing hearing made no mention of COMPAS. Defendant Hegler's PSIR included a COMPAS needs chart indicating that he was ranked "Probable" for substance abuse," and "Highly Probable" for social isolation and criminal personality. Defendant Wilson's PSIR included a COMPAS needs chart indicating that he was ranked "Highly Probable" for family criminality and residential instability. The COMPAS needs chart in defendant Bradford's PSIR ranked him "Highly Probable" for residential instability, criminal personality, substance abuse, social isolation, and criminal associates or peers. In none of these cases was there any objection to or discussion of defendants' COMPAS scores or their inclusion in the PSIR (or in Younglove's case, the initial PSIR) before the sentencing court.
These appeals followed.
II. STANDARD OF REVIEW
This Court generally reviews de novo the issue of whether a defendant was denied due process of law. See People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006). However, because defendants failed to preserve their issues by raising attendant objections below, we review their claims for plain error that affected substantial rights. See People v Pipes, 475 Mich 267, 279; 715 NW2d 290, 296 (2006). Under the plain-error rule, defendants must show that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the defendant. Id.
III. ANALYSIS
Defendants argue that their respective sentencing courts' presumed use of the COMPAS information in the PSIRs when determining their sentences deprived them of the due process of law. Defendants also argue that the references to COMPAS constitute inaccurate information that should be removed from their PSIRs. We disagree that defendants have shown plain error requiring reversal.
See US Const, Am XIV, § 1; Const 1963, art 1, § 17.
Due process requires that a defendant be sentenced on the basis of accurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Accordingly, "a sentence is invalid if it is based on inaccurate information." People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). Further, a defendant should have "a reasonable opportunity at sentencing to challenge the information" contained in a PSIR. People v Zinn, 217 Mich App 340, 347-348; 551 NW2d 704 (1996).
Before a person convicted of a felony is sentenced, a probation officer from MDOC prepares a PSIR, which the trial court must consider when deciding on a sentence. MCL 771.14(1); MCR 6.425(A)(1). The purpose of the PSIR is to provide the sentencing court with as much information as possible so that the court can tailor the sentence to both the offense and the offender. Miles, 454 Mich at 97. The PSIR "follows the defendant to prison" and "may have ramifications for purposes of security classification or parole consideration when appropriate." People v Maben, 313 Mich App 545, 553; 884 NW2d 314 (2015) (quotations marks and citation omitted).
Defendants argue that any reference to COMPAS in a PSIR violates a defendant's due process rights because COMPAS statistically analyzes data from a general population in making its determinations, which renders its use inappropriate in an individualized sentencing decision. They further argue that COMPAS has a tendency to conflate correlation with causation, makes questionable use of the recidivism variable, has discriminatory impacts as concerns race and gender inputs, and that the scores it produces lack transparency. Defendants also express a concern that using COMPAS to make a sentencing decision risks transferring sentencing discretion from judges to software developers.
A sentencing court is not bound by the recommendations included in a PSIR, including the recommended range for a minimum sentence under the sentencing guidelines. See People v Steanhouse, 500 Mich 453, 476; 902 NW2d 327, 338 (2017). Nor is a sentencing court obliged to use all information contained within a PSIR in pronouncing sentence. See MCR 6.425(E)(1)(a)-(c). Courts must consider the PSIR, but whether or how heavily to weigh the information contained therein remains within the court's discretion.
Further, the references to COMPAS in defendants' PSIRs, despite reflecting a software program's projections about future behavior, are similar to the opinions of probation agents that are routinely included in PSIRs. See MCL 771.14(2)(a) (a PSIR should include "[a]n evaluation of and a prognosis for the person's adjustment in the community based on factual information contained in the report"). Therefore, we are not persuaded by defendants' arguments that the inclusion of COMPAS information unfairly influences or replaces a sentencing court's individual sentencing discretion. Defendants had the opportunity to challenge the COMPAS information at sentencing and did not do so; we find no plain error requiring reversal. See Pipes, 475 Mich at 279.
Defendants also argue that COMPAS results are unreliable, and that this unreliability infected their PSIRs with erroneous information that should be deleted. In support of their argument, defendants cite academic articles suggesting that COMPAS assessments may be inaccurate. However, defendants do not argue that any specific results of their COMPAS assessments are inaccurate and thus should be stricken from their PSIRs. See Zinn, 217 Mich App at 347-348. Again, defendants had the opportunity before the sentencing court to challenge the inclusion of this information in the PSIRs and did not do so; we find no plain error requiring reversal based on defendants' generalized concerns about the reliability of the software. See Pipes, 475 Mich at 279.
See, e.g., Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va L Rev 391 (2006); Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan L Rev 803 (2014). Some academicians have expressed the concern that sentencing judges assume that COMPAS is more accurate than their own human predictive facilities on the grounds that the program uses statistics and is purportedly evidence based, but that COMPAS in fact is only slightly more accurate in predicting the likelihood that a criminal will reoffend than is a pool of random laypersons. See Yong, A Popular Algorithm is No Better at Predicting Crimes than Random People, The Atlantic (January 17, 2018).
Defendants additionally argue that the references to COMPAS in their PSIRs violated their due process rights because the pertinent "scoring sheets," i.e., the paperwork revealing how COMPAS arrived at its assessments, were not attached to their PSIRs, and that they therefore had no meaningful opportunity to rebut the conclusions rendered by COMPAS. See McGee, 258 Mich App at 699-700 (lack of adequate notice may violate due process and require reversal). Nothing in the record indicates that defendants were prohibited from obtaining, or even ever attempted to obtain, these scoring sheets during the sentencing process, and we find no plain error in this regard. See Pipes, 475 Mich at 279.
Finally, even if we were to find plain error in the inclusion of COMPAS information in defendants' PSIRs, defendants fail to explain how their substantial rights were affected. They merely state that the brief references to a COMPAS assessment in their PSIRs "necessarily contributed" to the sentencing decisions. To establish that a due process violation requires reversal, defendants must prove prejudice. McGee, 258 Mich App at 700. As stated, the records of defendants' sentencing proceedings contain no references to the COMPAS scores contained in the PSIRs; nor have defendants argued that any specific information was inaccurate. Moreover, defendants offer no evidence that their sentencing courts actually placed significant (or any) weight on the COMPAS assessments in crafting their sentences. Defendants have failed to carry their burden of showing that the inclusion of the information affected their substantial rights. See Pipes, 475 Mich at 279.
As noted earlier, Defendant Younglove's updated PSIR, presumably the one actually used by the trial court in sentencing her, did not even contain any references to COMPAS.
Defendant Hegler alternatively argues that his defense attorney was ineffective for failing to object to the reference to COMPAS in his PSIR. See People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012) ("Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her defense."), citing US Const, Am VI; Const 1963, art 1, § 20. However, Hegler offers no argument regarding why that lack of an objection was objectively unreasonable, or how, but for counsel's purported error, the result of the proceedings would have been different. See Trakhtenberg, 493 Mich at 51. Regardless, because Hegler, like the other defendants in these consolidated appeals, failed to show that the reference to COMPAS in his PSIR amounted to a due process violation, we find his ineffective assistance of counsel argument unpersuasive. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel."). --------
Affirmed.
/s/ Michael J. Kelly
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra