People of Michigan v. Jacob Daniel McKay ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 20, 2022
Plaintiff-Appellee,
v No. 354700
Ingham Circuit Court
JACOB DANIEL MCKAY, LC No. 15-001126-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and STEPHENS and LETICA, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of three counts of second-degree child
abuse, MCL 750.136b(3). On second remand, he was resentenced as an habitual offender, third
offense, MCL 769.11, to 141 to 240 months’ imprisonment. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant was convicted of three counts of second-degree child abuse for egregious
conduct against the victims, his three stepchildren, JLB, JJB, and SLB, over a period of
approximately 15 months. The abuse of the victims was extensive. As punishment, the victims
were forced to touch their toes without bending their knees for long periods of time. The victims
were also spanked with JJB being struck to the point where he could not sit down. The victims
were “grounded” and confined to their rooms. Defendant would remove the doorknobs or block
the doorways with furniture to prevent the victims from leaving. This caused the victims to
defecate out the window or inside their rooms. When defendant realized that one of the victims
had defecated, he covered her face with the feces. Additionally, defendant would force the victims
to write thousands of sentences. Defendant corroborated significant portions of the victims’
accounts in his interview with a detective. Additionally, defendant’s biological children visited
him and witnessed the abuse of the victims.
The trial court originally sentenced defendant as a third-offense habitual offender to serve
160 to 240 months’ imprisonment. The 160-month minimum exceeded the minimum sentencing
guidelines range of 43 to 129 months. We vacated defendant’s sentences and remanded for
resentencing, concluding that the trial court did not provide an adequate explanation to support its
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departure from the guidelines range.1 On remand, the trial court judge had retired, and the
successor judge again sentenced defendant to serve 160 to 240 months’ imprisonment. We vacated
once more and remanded for resentencing before a different judge. We concluded that the
resentencing judge committed an error of law by stating that the guidelines were no longer
applicable and by failing to provide an adequate rationale for the extent of her departure sentence.2
On second remand, the third judge resentenced defendant to serve 141 to 240 months’
imprisonment. From this second resentencing hearing, defendant appeals.
II. DEPARTURE SENTENCE
Defendant contends that the third judge’s departure sentence was unreasonable and
disproportionate and failed to consider defendant’s traumatic childhood and the age of his prior
convictions. We disagree.
The appellate court reviews the trial court’s sentencing decision for an abuse of discretion.
People v Skinner, 502 Mich 89, 131-132; 917 NW2d 292 (2018). “A sentence that departs from
the applicable guidelines range will be reviewed by an appellate court for reasonableness.” People
v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). To determine reasonableness, we
examine the case circumstances, the record, and the trial court’s statements made during
sentencing. People v Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). The
reasonableness of a departure sentence is reviewed for an abuse of discretion. People v
Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). An abuse of discretion occurs when the
trial court’s decision falls “outside the range of reasonable and principled outcomes.” People v
Foster, 319 Mich App 365, 375; 901 NW2d 127 (2017).
Although the application of the sentencing guidelines is no longer mandatory, they are
nonetheless advisory. Lockridge, 498 Mich at 391. “Sentencing courts must, however, continue
to consult the applicable guidelines range and take it into account when imposing a sentence.” Id.
at 392. Further, the sentencing judge must justify the sentence imposed to aid appellate review.
Id. A trial court’s upward departure constitutes an abuse of discretion when it violates the principle
of proportionality adopted in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
Steanhouse, 500 Mich at 471. Under the principle of proportionality, “ ‘the key test is whether the
sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres
to the guidelines’ recommended range.’ ” Steanhouse, 500 Mich at 475, quoting Milbourn, 435
Mich at 661.
The factors that the sentencing court may consider under the proportionality standard
include, but are not limited to:
1
People v McKay, unpublished per curiam opinion of the Court of Appeals, issued March 6, 2018
(Docket No. 335417), pp 5-6.
2
People v McKay, unpublished per curiam opinion of the Court of Appeals, issued November 19,
2019 (Docket No. 345910), pp 4-6.
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(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. [Walden, 319 Mich App at 352-353 (quotation marks
and citations omitted).]
“Even where some departure appears to be appropriate, the extent of the departure (rather than the
fact of the departure itself) may embody a violation of the principle of proportionality.” Milbourn,
435 Mich at 660. In order to facilitate appellate review, the sentencing court must articulate “why
the sentence imposed is more proportionate to the offense and the offender than a different
sentence would have been.” People v Smith, 482 Mich 292, 311; 754 NW2d 284 (2008).
In this case, the third sentencing judge sentenced defendant to serve 141 to 240 months’
imprisonment. This was a 12-month upward departure from the top end of the sentencing
guidelines range, but 9 months less than the 150-month recommendation of the probation
department. The sentencing judge determined that the guidelines, specifically the scoring of
Offense Variables (OVs) 4, 7, and 10, did not adequately address the seriousness of this abuse and
the injury to the victims.
We agree with the lower court’s finding that the score for OV 4 failed to sufficiently capture
the extent of the victims’ psychological injuries. OV 4 is properly scored at 10 points for “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a);
People v White, 501 Mich 160, 163; 905 NW2d 228 (2017). The maximum score for OV 4 is 10
points. MCL 777.34(1)(a).
At resentencing, the court explained:
[A score of 10 points for OV 4] doesn’t capture the type of injury that according to
this record occurred here, including resulting in two of the victims being
institutionalized, including multiple attempts at suicide, including professionally
evaluated increase in aggravation or additional symptomology of autism for the one
victim who is on the autism spectrum[.]
* * *
So in this case . . . OV 4 does not fully take into consideration the psychological
injury that these individuals, these children sustained. I mentioned some of it. I
think the record supports that in addition to residential 24-hour care for two of them
and the suicide . . . attempts, there is display of [post-traumatic stress disorder
(PTSD)], paranoia, anxiety; things that were talked about in terms of what these
kids are - - these children are exhibiting. There was reference to difficulty with
normal self-care, things such as that, that I think it’s - - the type of psychological
injury that goes well beyond just the general trauma that occurs from a criminal act
even some of the more heinous criminal acts that we see, the OV simply does not
- - I think OV 4 simply does not fully take into account this particular set of facts.
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The psychological consequences cited by the court constituted just a portion of the ample
evidence that showed the severity of the victims’ psychological injuries after the abuse. JLB
frequently cut herself and twice attempted suicide. JJB had extreme mood swings, and he
exhibited more pronounced symptoms of autism spectrum disorder. SLB was “depressed,” “easily
frightened,” and had “lots of nightmares.” The victims were all ultimately diagnosed with PTSD,
and JLB and JJB had to be removed from their grandmother’s home for placement in a residential
psychiatric facility. This type of significant response, which manifested in different psychological
behaviors by each victim, was not adequately captured by the scoring of OV 4. Indeed, when the
circumstance of the crime includes a location, such as the victim’s home which causes a loss of a
sense of security, the court does not clearly err in concluding that OV 4 did not adequately account
for the circumstances of the offense. See People v Lampe, 327 Mich App 104, 129; 933 NW2d
314 (2019). The child victims here suffered life-altering psychological injuries that required
substantial professional assistance. The victims were abused in their home where they should have
had a sense of security with defendant, their stepparent, an individual responsible for their care
and custody. When the children were confined to their rooms, all external stimuli were removed
from that location. JLB testified that she was punished for an entire summer or approximately 73
days, and the only thing in her room was a bed and a blanket or sheet. Under the circumstances,
the sentencing court properly found that the assessment of 10 points for OV 4 did not adequately
account for the harm to the victims.
Moreover, the court explained its conclusion that the scoring of 50 points for OV 7 and 10
points for OV 10 were not adequately addressed in the sentencing guidelines because they did not
fully contemplate the length of time that defendant’s abuse persisted. OV 7, addressing aggravated
physical abuse, is scored at a maximum of 50 points if a “victim was treated with sadism, torture,
excessive brutality, or similarly egregious conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” MCL 777.37(1)(a). OV 10, addressing exploitation
of a vulnerable victim, is scored at 10 points if the defendant “exploited a victim’s physical
disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused
his or her authority status.” MCL 777.40(1)(b).
We agree with the court’s finding that while OVs 7 and 10 accounted for some of
defendant’s conduct, they did not “fully account for the continuum of this severe of conduct over
such a long period of time.” Moreover, the sentencing court was entitled to conclude that the
severity of the impact of the defendant’s conduct on the victim received inadequate weight. People
v Lawhorn, 320 Mich App 194, 210-211; 907 NW2d 832 (2017). Again, in this case, defendant’s
conduct involved instances of abuse, such as groundings, which lasted days or weeks. For
example, JLB testified that defendant once grounded her for about 73 days. Defendant’s abusive
tactics also persisted over the period when the victims lived with him. Therefore, the court
reasonably found that OVs 7 and 10 did not account for the length of defendant’s abuse.
Additionally, the sentencing court reasoned that the guidelines as a whole did not
adequately account for the seriousness of the offense because defendant’s OV score was placed in
Level IV, the highest level, which included scores of 75 points or more, but defendant had an
actual OV score of 110 points. Thus, the sentencing court properly considered that the guidelines
gave inadequate weight to defendant’s total OV score. See MCL 769.34(3)(b).
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Defendant further submits that the sentencing court failed to consider mitigating factors,
including the age of defendant’s prior convictions, his traumatic childhood, and his model behavior
while incarcerated. But “trial courts are not required to expressly or explicitly consider mitigating
factors at sentencing.” People v Bailey, 330 Mich App 41, 63; 944 NW2d 370 (2019). Therefore,
the sentencing court had no obligation to address this information when imposing a departure
sentence. Even so, the resentencing court did consider mitigating evidence. The sentencing court
explicitly considered the Snow3 factors and stated that defendant’s history and conduct in prison
led it to depart upward from the guidelines by only 12 months.
Finally, the extent of the sentencing court’s departure is a relevant consideration when
reviewing a departure sentence for proportionality. Milbourn, 435 Mich at 659-660. In this case,
the sentencing court’s departure was modest, exceeding the minimum guidelines range by 12
months. See Walden, 319 Mich App at 353. The sentencing court also provided a clear
justification for the extent of its departure, reasoning that defendant’s personal history and
evidence of rehabilitation warranted a smaller departure than had been previously imposed.
Consequently, the sentencing court did not abuse its discretion in applying the principle of
proportionality because it provided “adequate reasons for the extent of the departure sentence
imposed.” Steanhouse, 500 Mich at 476.
III. STANDARD 4 BRIEF
Defendant also filed a Standard 4 brief4 asserting that the prosecutor committed misconduct
by knowingly allowing witnesses to present perjured testimony and that defendant was prejudiced
by its admission. However, the issues that may be raised in an appeal are “limited by the scope of
the remand.” People v Jones, 394 Mich 434, 435; 231 NW2d 649 (1975). Therefore, the scope
of this appeal is limited to examining the sentencing court’s compliance with our directive that
resentencing occur. See id. at 435-436. To allow defendant to raise trial-related matters in this,
his third appeal, would effectively permit multiple appeals as of right from the same final
determination and render the court rules governing the taking of an appeal as of right meaningless.
3
In People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), our Supreme Court recognized
that the following goals guided proportional sentencing: “(a) the reformation of the offender,
(b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others
from committing like offenses.”
4
See Administrative Order No. 2004-6, 471 Mich cii.
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People v Pickett, 391 Mich 305, 316-317; 215 NW2d 695 (1974). Indeed, our court rules limit
defendant’s appeal to issues arising from his third sentencing proceeding. See MCR 7.203(A)(1)
and MCR 7.202(6)(b)(iii). Accordingly, we decline to address defendant’s claim of prosecutorial
misconduct5 related to his trial.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Cynthia Diane Stephens
/s/ Anica Letica
5
In addition to claiming that the victims, his stepchildren, committed perjury, defendant offered
the victims’ biological father as a “suspect in the abuse of the children.” Suffice it to say,
defendant’s assertion is belied by his admissions to the police and the trial testimony from his own
biological children, who witnessed or heard the abuse of their stepsiblings when they visited
defendant.
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