Opinion
No. 349566
07-30-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES ALLEN REED, JR., 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 UNPUBLISHED Barry Circuit Court
LC No. 2018-000305-FH Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ. PER CURIAM.
Defendant appeals by leave granted his sentence of 40 to 60 months' imprisonment for third-offense domestic violence, MCL 750.81(5). For the reasons set forth in this opinion, we affirm.
Defendant entered a no-contest plea during trial. After his sentencing, he filed a delayed application for leave to appeal to this Court, which was denied. People v Reed, unpublished order of the Court of Appeals, entered August 6, 2019 (Docket No. 349566). Defendant, acting in propria persona, then sought leave to appeal in the Michigan Supreme Court. In lieu of granting leave, the Supreme Court remanded the case to this Court "for consideration, as on leave granted, of: (1) whether the trial court erred in scoring Offense Variable 4 at 10 points for serious psychological injury to a victim; MCL 777.34(1)(a), and (2) whether defendant's sentence was proportionate." People v Reed, 937 NW2d 641 (Mich, 2020).
I. BACKGROUND
This case arises out of an attack admittedly perpetrated by defendant on the victim, defendant's ex-wife. The victim had two adult children from a prior relationship. Just prior to the attack, defendant had filed for divorce, and during those proceedings defendant expressed anger toward the victim's youngest son, asserting that the son owed defendant money. According to the victim, defendant told her that he was going to physically harm, or kill, her son. Defendant and the victim continued to live together in the victim's home after the divorce proceedings had been initiated.
Defendant's conviction stems from an incident that occurred in October 2017. Defendant starting talking erratically, and the victim decided to record defendant's ramblings on her cell phone. Defendant eventually became violent, and the assault was captured on the audio recording the victim made on her cell phone. During the incident, defendant verbally abused the victim, threatening the lives of the victim and her children. The victim testified that defendant grabbed her neck, choking her and causing bruising. The victim further testified that defendant also hit her. She believed that she passed out, and she did not remember certain points of the attack.
The recording of the assault is only an audio recording and is approximately three hours long. Portions of the recording, selected pursuant to stipulation between the parties, were played for the jury at trial. The jury was also provided with transcripts of the recording.
Following a recess during the victim's testimony, the trial court accepted defendant's no-contest plea to third-offense domestic violence. The trial court sentenced defendant as explained earlier in this opinion.
We now address defendant's appellate issues pursuant to the remand order entered by our Supreme Court.
Reed, 937 NW2d 641. --------
II. OFFENSE VARIABLE 4
Defendant first argues that the trial court erred by assessing 10 points for Offense Variable (OV) 4.
We review de novo, as questions of law, issues concerning the proper interpretation and application of the legislative sentencing guidelines, MCL 777.11 et seq. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). "A trial court's factual determinations at sentencing are reviewed for clear error and need only be supported by a preponderance of the evidence." People v Carter, 503 Mich 221, 226; 931 NW2d 566 (2019). Whether the facts, as found by the trial court, justify the OV score at issue is a question of statutory interpretation that we review de novo. Id.
OV 4 is properly scored at 10 points if "[s]erious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a); see also People v White, 501 Mich 160, 163; 905 NW2d 228 (2017). "[T]he fact that treatment has not been sought is not conclusive" to determining the number of points to assess under OV 4, and 10 points are to be assessed "if the serious psychological injury may require professional treatment." MCL 777.34(2). Our Supreme Court held in White, 501 Mich at 162, "that (a) points for OV 4 may not be assessed solely on the basis of a trial court's conclusion that a 'serious psychological injury' would normally occur as a result of the crime perpetrated against the victim and (b) evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4." The Supreme Court further explained that "a trial court may not simply assume that someone in the victim's position would have suffered psychological harm because MCL 777.34 requires that serious psychological injury occurred to a victim, not that a reasonable person in that situation would have suffered a serious psychological injury." Id. at 163 (quotation marks and citation omitted). "A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial." People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012) (quotation marks and citation omitted).
In this case, the trial court's statements at sentencing regarding OV 4 indicate that it decided to assess 10 points for this OV based on its observations of the victim's demeanor during her testimony at trial. Additionally, "our review of the trial court's scoring of OV 4 is not limited to the reasoning provided by the trial court." White, 501 Mich at 164. We thus note that in imposing its sentence, the trial court further explained that it found both the victim's testimony and the recording of the incident "extremely disturbing." The trial court stated that it had not "seen a victim so traumatized in a case like this . . . [o]ther than children in a CSC [case]." The victim's impact statement included in defendant's Presentence Investigation Report (PSIR) indicated that she felt "[d]efeated, scared, [and] ashamed" and that there had been emotional and psychological abuse perpetrated by defendant throughout the marriage.
Contrary to defendant's argument on appeal, there was record evidence to support the trial court's scoring decision and White does not require us to conclude that the trial court clearly erred. The trial court in this case, unlike the trial court in White, did not simply presume that a person in the victim's position would typically have suffered a psychological injury. See White, 501 Mich at 163. The trial court in this case, unlike the trial court in White, also did not base its scoring decision solely on evidence that the victim was afraid during the incident but instead additionally considered the victim's demeanor during her trial testimony that reflected the degree of her continuing trauma and the audio recording of the incident as further evidence, beyond the victim's feelings of fear, to determine that a serious psychological injury had actually occurred to the victim. See id. at 162. The record in this case also contains a victim impact statement that further supports the trial court's scoring decision. In contrast to the record in this case, the record in White was devoid of any evidence that the victim in that case suffered a psychological injury other than the defendant's admission during the course of his plea colloquy that the victim was afraid of being shot by the defendant. Id. at 162-163. In White, there "was no victim impact statement, preliminary examination, or victim statement in evidence at sentencing." Id. at 163. Thus, White is clearly distinguishable from the instant case.
The victim's trial testimony and the recording of the incident further reflect that during the incident, in addition to physically assaulting the victim, defendant threatened to restrain the victim with duct tape, threatened to kill her sons, threatened to cut off her son's head with a machete and bring it back to her, and threatened to cut the victim's liver out. The incident was prolonged, occurring over the course of a significant period of time. Following our review of this evidence, we conclude that the trial court did not clearly err by assessing 10 points for OV 4. See Carter, 503 Mich at 226; People v Wellman, 320 Mich App 603, 608, 612; 910 NW2d 304 (2017) (affirming a 10-point assessment for OV 4 where the trial court referred to "the victim's reluctance and difficulty in giving testimony and appearing on the witness stand" in support of its scoring decision).
III. PROPORTIONALITY OF SENTENCE
Next, defendant argues that the trial court's upward sentencing departure violated the principle of proportionality.
In People v Lockridge, 498 Mich 358, 364-365; 870 NW2d 502 (2015), our Supreme Court rendered the sentencing guidelines advisory, struck down the requirement that sentencing courts articulate a substantial and compelling reason to justify a sentence that departs from the applicable guidelines range, and held that departure sentences would be reviewed on appeal for reasonableness. "[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the 'principle of proportionality' set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), '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 Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017).
[D]epartures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing. . . . [T]rial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. [Milbourn, 435 Mich at 657.]The extent of the departure must also satisfy the principle of proportionality. Id. at 660.
Factors to consider when evaluating the proportionality of a sentence include:
"(1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant's misconduct while in custody, the defendant's expressions of remorse, and the defendant's potential for rehabilitation." [People v Lawhorn, 320 Mich App 194, 207; 907 NW2d 832 (2017) (quotation marks and citation omitted).]
In this case, defendant's guidelines were assessed at 0 to 17 months for his domestic violence, third-offense conviction. However, the trial court sentenced defendant to 40 to 60 months' imprisonment, a departure of 23 months above the maximum minimum sentence. In support of the upward departure, the trial court explained that it did not believe that the 0- to 17-month guideline range accurately reflected the extreme nature of the offense. The trial court stated that it observed the victim's testimony and the recording of the offense. It determined that the events were "extremely disturbing," and that it had not seen a victim who was so traumatized other than in criminal sexual assault cases involving children. This determination is amply supported by the record evidence as previously described in this opinion. The trial court also noted that defendant's behavior and attitude after trial was "quite frightening." The trial court had concerns for the safety of the victim—who was defendant's former spouse—if defendant was released into the community, and the court further noted that defendant had been charged with absconding for failing to appear at his initial sentencing in the instant case.
On appeal, defendant argues that the trial court's concerns relate primarily to the facts underlying the crime itself and that these facts were already considered in scoring the offense variables as part of calculating the guidelines range. However, defendant ignores that the trial court found this to be an extreme example of domestic violence and that the guidelines did not adequately account for the nature of the circumstances surrounding the offense. See Steanhouse, 500 Mich at 459-460; Lawhorn, 320 Mich App at 207. Defendant has not provided an explanation for how these extremely disturbing circumstances were adequately accounted for by the guidelines such that the trial court abused its discretion in imposing this upward departure sentence. Milbourn, 435 Mich at 657. Defendant instead appears to disagree with the length of the sentence, seemingly relying primarily on a statement in Milbourn suggesting that departure sentences should alert an appellate court to the possibility of a disproportionate sentence. See Milbourn, 435 Mich at 659-660. However, our Supreme Court in Steanhouse specifically disavowed these statements as dicta, determining that such statements were "inconsistent with the United States Supreme Court's prohibition on presumptions of unreasonableness for out-of-guidelines sentences." Steanhouse, 500 Mich at 474.
Moreover, the trial court considered additional legitimate factors, which defendant fails to confront on appeal. The trial court relied on the fact that defendant was formerly married to the victim, and that defendant had absconded while on bond by failing to appear for sentencing, thereby presenting a serious danger to the victim while he was in the community. See Lawhorn, 320 Mich App at 207 (stating that a trial court may consider "factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant's misconduct while in custody, the defendant's expressions of remorse, and the defendant's potential for rehabilitation") (quotation marks and citation omitted). The trial court also stressed the level of brutality inflicted on the victim, brutality that was not properly accounted for in the guidelines. While we concur with defendant that the length of sentence imposed here should give a reviewing court pause to question both the reasonableness of the sentence and the proportionality of a sentence, it is not axiomatic that a reviewing court vacate a sentence merely because of its length. Here, given the brutality of the attack, the intent of the defendant to inflict serious psychological injury to the victim, coupled with defendant absconding while on bail, along with other factors stated in this opinion, leads us to conclude that defendant has failed to demonstrate on appeal that his sentence violated the principle of proportionality such that he is entitled to any relief.
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Deborah A. Servitto