People of Michigan v. James Paul Gailey ( 2018 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    May 22, 2018
    Plaintiff-Appellee,
    v                                                                  No. 333811
    Jackson Circuit Court
    JAMES PAUL GAILEY,                                                 LC No. 15-004866-FC
    Defendant-Appellant.
    Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ.
    PER CURIAM.
    Defendant appeals by leave granted1 his conviction of bank robbery, MCL 750.531, for
    which the trial court sentenced him to 4 to 20 years’ imprisonment. We vacate defendant’s
    sentence and remand for resentencing.
    On December 23, 2014, defendant entered a bank and approached Jennifer Bonner, a
    bank teller. He placed a cloth bag on the counter and told her to put cash in the bag with no dye
    packs. According to Bonner, defendant was polite and apologized to her several times. After
    she put the cash in the bag, he walked out of the bank. Several months later, defendant returned
    and robbed the bank again, this time demanding the money from Carrie O’Dell, another bank
    teller.
    Although defendant was initially charged with two counts of bank robbery, he pleaded
    guilty to a single count arising from the initial December 23, 2014 incident. However, the plea
    agreement stipulated that both Bonner and O’Dell would be considered victims of the crime. At
    1
    On July 12, 2016, defendant filed a delayed application for leave to appeal his sentence, which
    this Court denied. People v Gailey, unpublished order of the Court of Appeals, entered
    September 13, 2016 (Docket No. 333811). He then filed an application for leave to appeal to the
    Michigan Supreme Court, which ultimately entered an order remanding the case to this Court for
    consideration as on leave granted. People v Gailey, 
    501 Mich. 905
    (2017).
    -1-
    sentencing, the trial court assessed 10 points for offense variables (OVs) 4, 9, and 19, resulting in
    a sentencing guidelines range of 10 to 19 months. MCL 777.64. Thus, the trial court departed
    from the range when it sentenced defendant to 4 to 20 years in prison.
    I. SCORING ERRORS
    Defendant first argues that the trial court erred when it assessed 10 points for OVs 4 and
    19. “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
    clear error and must be supported by a preponderance of the evidence.” People v Hardy, 
    494 Mich. 430
    , 438; 835 NW2d 340 (2013). “ ‘Clear error exists when the reviewing court is left
    with a definite and firm conviction that a mistake was made.’ ” People v Brooks, 
    304 Mich. App. 318
    , 319-320; 848 NW2d 161 (2014) (citation omitted). “Whether the facts, as found, are
    adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to
    the law, is a question of statutory interpretation, which an appellate court reviews de novo.”
    
    Hardy, 494 Mich. at 438
    . “When calculating the sentencing guidelines, a court may consider all
    record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a
    preliminary examination.” People v McChester, 
    310 Mich. App. 354
    , 358; 873 NW2d 646
    (2015).
    A. OV 4
    The trial court appeared to assess 10 points for OV 4 on the basis that both the bank
    manager, present for each of the robberies, and the two bank tellers suffered serious
    psychological injury. A court must assess 10 points for OV 4 if “[s]erious psychological injury
    requiring professional treatment occurred to a victim.” MCL 777.34(1)(a); 
    McChester, 310 Mich. App. at 356
    . MCL 777.34(2) further provides: “Score 10 points if the serious psychological
    injury may require professional treatment. In making this determination, the fact that treatment
    has not been sought is not conclusive.” A “trial court may assess 10 points for OV 4 if the
    victim suffers, among other possible psychological effects, personality changes, anger, fright, or
    feelings of being hurt, unsafe, or violated.” People v Armstrong, 
    305 Mich. App. 230
    , 247; 851
    NW2d 856 (2014).
    Defendant argues that the trial court erred when it assessed 10 points for OV 4 because
    the bank manager cannot be considered a victim, and insufficient evidence existed to conclude
    that the bank tellers suffered serious psychological injury. We need not determine whether the
    bank manager may be considered a victim for the purpose of scoring OV 4, as a preponderance
    of the evidence supported the court’s determination that the bank tellers themselves suffered
    serious psychological injury as a result of the robberies.2
    2
    Again, although defendant pleaded guilty to only the first count of bank robbery, the plea
    agreement provided that both tellers would be considered victims of the crime.
    -2-
    Defendant, citing McChester, asserts that the record contains no description of either
    bank teller suffering a serious psychological injury of any sort, other than what was described by
    the probation officer who spoke with the bank manager. However, this case is distinguishable
    from McChester, in which this Court held that a PSIR’s reference to the victim being “visibly
    shaken” after the crime was insufficient to support the assessment of 10 points for OV 4, as there
    was no “indication from the victim herself regarding her psychological state, and the only
    information on the issue [came] from a cursory, vague, and preliminary observation by police
    who arrived at the scene.” 
    McChester, 310 Mich. App. at 358-359
    . Here, although neither
    Bonner nor O’Dell provided victim impact statements, the PSIR contained detailed statements
    from the bank manager and a bank security officer, the tellers’ coworkers, regarding the lasting
    effect of the robberies on the bank’s employees. The bank manager’s letter did not specifically
    name Bonner or O’Dell, but stated, “No, I’m not one of the ‘victim’ tellers but I am the manager
    and those are MY employees that he robbed, scared and left forever changed.” The letter also
    said that the December 23, 2014 robbery left everyone on high alert and feeling extremely
    vulnerable every day, and that “[w]e are forever changed because of [defendant’s] decisions and
    our sense of trust and security are gone.” Additionally, the security officer’s statement provided,
    “He robbed us twice and we had three staff members which were very shaken up.”
    This Court has held that evidence a victim felt angry, hurt, violated, and frightened after a
    crime is sufficient to support an assessment of 10 points for OV 4. People v Williams, 298 Mich
    App 121, 124; 825 NW2d 671 (2012). Thus, from the above observations in the PSIR that the
    bank’s employees felt shaken up, scared, and extremely vulnerable every day after the robberies,
    the trial court could properly conclude that Bonner and O’Dell suffered serious psychological
    injury.
    B. OV 19
    The trial court also did not err when it assessed 10 points for OV 19. OV 19 involves a
    “threat to the security of a penal institution or court or interference with the administration of
    justice.” MCL 777.49. A trial court should assess 10 points for OV 19 if the defendant
    “interfered with or attempted to interfere with the administration of justice.” MCL 777.49(c).
    The plain and ordinary meaning of the phrase “interfere with the administration of justice,” for
    purposes of OV 19, is “to oppose so as to hamper, hinder, or obstruct the act or process of
    administering judgment of individuals or causes by judicial process.” People v Hershey, 
    303 Mich. App. 330
    , 343; 844 NW2d 127 (2013). “OV 19 is generally scored for conduct that
    constitutes an attempt to avoid being caught and held accountable for the sentencing offense.”
    People v Sours, 
    315 Mich. App. 346
    , 349; 890 NW2d 401 (2016). The scoring of OV 19 is not
    limited to consideration of the sentencing offense – the court may consider conduct that occurred
    after the sentencing offense was completed. People v Smith, 
    488 Mich. 193
    , 195, 202; 793
    NW2d 666 (2010). However, only conduct related to the offense being scored may be
    considered when determining the score for OV 19. 
    Sours, 315 Mich. App. at 348-349
    .
    Furthermore, the attempt to interfere with the administration of justice contemplated in MCL
    777.49(c) is not limited to judicial process, and may extend to the time of investigation for
    pursuing prosecution. People v Barbee, 
    470 Mich. 283
    , 287-288; 681 NW2d 348 (2004).
    -3-
    Although defendant only challenges the first two bases, the trial court assessed 10 points
    for OV 19 because defendant: (1) instructed the bank teller not to include dye packets in the bag
    with the robbery proceeds, (2) placed blue tape over a portion of his license plate at some point
    after the first robbery, and (3) disposed of his clothes immediately after the initial robbery.
    Defendant’s instruction to the bank teller not to include dye packs in the bag with the robbery
    proceeds does not support the assessment of 10 points for OV 19, but his action of placing tape
    over his license plate in combination with the disposal of his clothes does support such an
    assessment.
    This Court has held that a defendant’s physical struggle with store security officers
    qualified as interference with the administration of justice because the store security officers
    were statutorily authorized to place defendant under arrest, People v Passage, 
    277 Mich. App. 175
    , 180-181; 743 NW2d 746 (2007), and that a defendant’s act of telling a child molestation
    victim not to tell police what happened supported the assessment of 10 points for OV 19, People
    v Steele, 
    283 Mich. App. 472
    , 492-493; 769 NW2d 256 (2009). Here, defendant had no
    interaction with any bank security guards attempting to arrest him, and did not threaten either
    bank teller in an attempt to prevent her from telling police about the crime. Instead, defendant
    simply asked the teller not to include dye packs so he could flee the scene with his robbery
    proceeds. Thus, we cannot conclude that by doing so, defendant “hamper[ed], hinder[ed], or
    obstruct[ed] the act or process of administering judgment of individuals or causes by judicial
    process.” 
    Hershey, 303 Mich. App. at 343
    .
    Nevertheless, we do hold that the trial court properly assessed 10 points for OV 19 based
    on defendant’s efforts to evade justice by taping over a portion of his license plate, and
    discarding his clothes immediately following the first robbery. The Evaluation and Plan portion
    of the PSIR states: “Once [defendant] had completed the initial robbery on December 23, 2014,
    [defendant] then disposed of the clothing he had been wearing during the commission of the
    crime in an attempt to further avoid being apprehended. He even went so far as to place blue
    tape over a portion of his vehicle license plate to prevent anyone from being able to observe his
    plate number.” Although the PSIR does not indicate what effect, if any, these actions had on the
    attempts of law enforcement officers to identify and arrest him, from this information, the trial
    court could conclude that both were efforts to conceal his identity and deceive the police, thereby
    hindering their investigation into the robbery. See 
    Barbee, 470 Mich. at 288
    (“The investigation
    of crime is critical to the administration of justice.”); People v Ericksen, 
    288 Mich. App. 192
    , 204;
    793 NW2d 120 (2010) (reasoning that hiding or disposing of evidence may constitute
    interference with the administration of justice).
    II. MISTAKE OF FACT
    Defendant next argues that the trial court sentenced him on the basis of inaccurate
    information, and he is thus entitled to resentencing, because the prosecutor incorrectly informed
    the trial court that he failed to seek treatment for his drug addiction. Although the prosecutor’s
    statements may have been inaccurate, there is no indication that the court relied on those
    statements when it sentenced defendant. Accordingly, any error would be harmless.
    -4-
    “A defendant is entitled to be sentenced by a trial court on the basis of accurate
    information.” People v Francisco, 
    474 Mich. 82
    , 88; 711 NW2d 44 (2006). “It is well settled
    that the use of inaccurate information at sentencing may violate [a] defendant’s constitutional
    right to due process.” People v Hoyt, 
    185 Mich. App. 531
    , 533; 462 NW2d 793 (1990).
    “However, when the alleged inaccuracies would have no determinative effect on the sentence,
    the court’s failure to respond may be considered harmless error.” People v McAllister, 241 Mich
    App 466, 473; 616 NW2d 203 (2000), remanded in part on other grounds 
    465 Mich. 884
    (2001).
    Despite his failure to object below, defendant takes issue with the following statement
    made by the prosecutor during his sentencing hearing:
    Now we’re told that the reason that he committed these bank robberies
    was to feed his -- his drug addiction and when he lost his last job due to his drug
    addiction, he apparently didn’t seek help, didn’t go into rehab, didn’t do what was
    necessary, so if we accept his logic I guess anybody that’s -- that's an addict based
    on their addiction can just go hold up a bank and get whatever money is necessary
    to support their addiction instead of checking into a rehab program and getting the
    help that you need to beat it once and for all. But he didn’t make that choice.
    Although information in the PSIR contradicted this statement, there is no indication that the
    court relied on the prosecutor’s comments to determine defendant’s sentence. Instead, the court
    focused on the effect the robberies had on the bank employees, and its disapproval of the
    sentencing guidelines’ treatment of the crime of bank robbery, stating:
    I’m going to depart from the sentencing guidelines, because I don’t think that they
    adequately address the sentence for a defendant involved in two separate
    robberies, both life offenses, of a bank. It does not adequately address the trauma
    to the clerks who twice had to deal with [defendant] robbing their place of
    employment at a bank.
    Thus, defendant is not entitled to resentencing on the basis of mistake of fact, because any error
    in the prosecutor’s statements was harmless.3
    III. PROPORTIONALITY
    Finally, defendant argues that the trial court imposed a sentence that is disproportionate
    to the offense and the offender. Because the sentencing guidelines are now advisory, a
    sentencing court may “depart from [a] guidelines range without articulating substantial and
    3
    We note that at the hearing on defendant’s motion to correct his invalid sentence, in response to
    defense counsel’s mistake of fact argument, the trial court stated that the prosecutor’s comments
    at sentencing would not have materially impacted the sentence it decided to impose.
    -5-
    compelling reasons for doing so.” People v Lockridge, 
    498 Mich. 358
    , 392; 870 NW2d 502
    (2015). “A sentence that departs from the applicable guidelines range will be reviewed by an
    appellate court for reasonableness.” 
    Id. “[T]he standard
    of review to be applied by appellate
    courts reviewing a sentence for reasonableness on appeal is abuse of discretion.” People v
    Steanhouse, 
    500 Mich. 453
    , 471; 902 NW2d 327 (2017).
    As stated above, the trial court departed from the sentencing guidelines range of 10 to 19
    months’ imprisonment when it sentenced defendant to 4 to 20 years for his conviction of bank
    robbery. Thus, we must review defendant’s sentence for reasonableness. A departure sentence
    is considered reasonable if it satisfies the “principle of proportionality” as set forth in People v
    Milbourn, 
    435 Mich. 630
    ; 461 NW2d 1 (1990). 
    Steanhouse, 500 Mich. at 471-472
    . The principle
    of proportionality “ ‘helps to fulfill the overall legislative scheme of criminal punishment by
    taking care to assure that the sentences imposed across the discretionary range are proportionate
    to the seriousness of the matters that come before the court for sentencing.’ ” 
    Id. at 472,
    quoting
    
    Milbourn, 435 Mich. at 651
    .
    Thus, when it chooses to depart from the guidelines, a sentencing court must “ ‘justify the
    sentence imposed in order to facilitate appellate review,’ ” 
    Steanhouse, 500 Mich. at 470
    , quoting
    
    Lockridge, 498 Mich. at 392
    , by explaining why “a departure sentence is more proportionate than
    a sentence within the guidelines range,” People v Dixon-Bey, 
    321 Mich. App. 490
    , 525; 909
    NW2d 458 (2017). In so doing, the court must consider the sentencing guidelines, 
    Steanhouse, 500 Mich. at 474-475
    , and “the nature of the offense and the background of the offender,” 
    Id. at 472
    (quotation marks and citation omitted). Additional factors that may also be considered
    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 Walden, 
    319 Mich. App. 344
    , 352-352; 901 NW2d 142 (2017), quoting People v Steanhouse, 
    313 Mich. App. 1
    ,
    46; 880 NW2d 297 (2015), rev’d in part on other grounds 
    500 Mich. 453
    (2017). Further, a
    sentencing court must provide adequate reasons for the extent of its departure. 
    Steanhouse, 500 Mich. at 476
    .
    To justify its departure sentence, the trial court reasoned that the sentencing guidelines do
    not adequately address the crime of bank robbery, a sentence within the range would encourage
    additional bank robberies, and twice robbing the same bank traumatized the bank’s employees.
    Specifically, the court stated:
    [Y]ou didn’t just rob this bank once, you robbed it twice and you know, I think it
    was a very fair accounting by [the prosecutor] of the impact on the -- on the
    clerks. They were clearly very traumatized by what -- what's occurred and as I’ve
    -- I've already noted, you know, I mean, if -- if the average person in the public
    found out that the low end of the guidelines for robbing a bank was 10 months in
    the county jail, I mean, it’s just -- may -- maybe that’s why the sentencing
    guidelines are what they are. They are advisory benchmarks and frankly, the
    -6-
    court finds -- I'm going to depart from the sentencing guidelines, because I don’t
    think that they adequately address the sentence for a defendant involved in two
    separate robberies, both life offenses, of a bank. It does not adequately address
    the trauma to the clerks who twice had to deal with you robbing their place of
    employment at a bank.
    But OV 4 already took into consideration the psychological effect the robberies had on both
    victims, and while the court’s general criticisms of the sentencing guidelines may be valid, it
    failed to consider circumstances specific to defendant and his sentencing offense. Defendant had
    no prior felony convictions, did not use a weapon or threaten any type of violence during the
    commission of the sentencing offense, and the victims indicated that he was polite and
    apologetic. Thus, the trial court abused its discretion by failing to adequately justify the sentence
    it imposed. Based on the reasons articulated by the trial court, defendant’s sentence was
    unreasonable and disproportionate to the seriousness of the circumstances surrounding the
    offense and the offender. On remand the trial court can, of course, impose the same sentence
    should it find it warranted after consideration of all the circumstances surrounding the offense
    and the offender.
    We vacate defendant’s sentence and remand for resentencing.             We do not retain
    jurisdiction.
    /s/ Christopher M. Murray
    /s/ Deborah A. Servitto
    /s/ Mark T. Boonstra
    -7-
    

Document Info

Docket Number: 333811

Filed Date: 5/22/2018

Precedential Status: Non-Precedential

Modified Date: 5/24/2018