People v. Wesley

411 N.W.2d 159, 428 Mich. 708

• Court: Michigan Supreme Court
• Decided: August 25, 1987
• Docket: 77844, (Calendar No. 17)
• Status: Published

Opinions

Archer, J.

Following a jury trial in the Bay Circuit Court, the defendant was convicted of one count of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(l)(a), and was sentenced to forty to sixty years in prison. The Court of Appeals affirmed the defendant’s conviction and sentence in an unpublished per curiam opinion. At the request of Circuit Judge William Caprathe, the trial judge in this case, the opinion was later published. 148 Mich App 758; 384 NW2d 783 (1985).

We granted defendant’s application for leave to appeal on June 24, 1986, as to whether a defendant must be resentenced when the sentencing judge relies on the defendant’s assertion of innocence.

We would hold that while a sentencing court cannot, in whole or in part, base its sentence on a defendant’s refusal to admit guilt, People v Yennior, 399 Mich 892; 282 NW2d 920 (1977), evidence of a lack of remorse can be considered in determining an individual’s potential for rehabilitation. Here, the trial court made clear when stating its reasons for exceeding the sentencing guidelines that defendant’s assertion of innocence was not the reason for imposing the harsh sentence. We therefore conclude that the trial court did not abuse its discretion in determining the defendant’s sentence.

PACTS

Defendant, age fifty-seven, was charged with one count of first-degree criminal sexual conduct with a seven-year-old girl. The defendant, who had no prior convictions, testified at trial, maintaining that the criminal act had not occurred. Following a five-day trial, the defendant was convicted of the charged offense and sentenced to forty to sixty years in prison. The minimum sentence recommended by the Supreme Court Sentencing Guidelines indicates thirty-six to seventy-two months (three to six years). Relying on Yennior, supra, the defendant then appealed to the Court of Appeals, claiming that the sentencing judge improperly considered defendant’s denial of guilt in setting his sentence, as suggested by the following language:

Although you deny the offense, Mr. Wesley, a jury found you guilty of the offense. There were three witnesses that testified that you did it. One of the problems here that I see, as far as any kind of rehabilitation is concerned, is that you do not feel you have a problem in this area and, therefore, any kind of rehabilitation or counseling would have to be on some sort of a forced effort. Because, if you don’t believe you have a problem, which is your position, and you have a right to take that position, the hope of recovery or rehabilitation, however one wants to put it, diminishes, in my opinion, and makes the situation a difficult situation. If you believe you don’t need counseling, then it has a negative impact on any counseling that’s required by the Court. Also, that in — is a situation which leads the Court to believe that any kind of rehabilitation would have to take place in prison. Not only because of the less likelihood of rehabilitation taking place, but also the fact that it would be the threat to the safety of society, more particular in this case, the safety of children, if you’re out in some sort of a program on the outside being forced to have this kind of counseling.

The defendant argues that his sentence should be vacated and the cause remanded for resentencing by a different judge because the trial court erred in considering defendant’s refusal to admit guilt. The defendant specifically requests that we follow our decision in People v Yennior, supra, where we held that a court cannot base a sentence, even in part, on a defendant’s refusal to admit guilt.

We note initially that sentencing is a matter of judicial discretion, and, absent abuse of that discretion to the extent that the sentence shocks the conscience of the appellate court, a trial court’s sentencing decision will not be disturbed on appeal. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). A trial court’s decision as to the proper sentence must be based upon the particular circumstances of each case and dependant upon material facts. Such factors include: (1) the potential for the reformation of the offender, (2) the protection of society, (3) the discipline of the wrongdoer, and (4) the deterrence of others from committing like offenses. People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972); Coles, supra.

While this Court has never specifically addressed the issue, in determining whether sentencing was improperly influenced by defendant’s failure to admit guilt, the Court of Appeals has focused upon three factors: (1) the defendant’s maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. See, e.g., People v Gray, 66 Mich App 101; 238 NW2d 540 (1975); People v Grable, 57 Mich App 184; 225 NW2d 724 (1974); People v Fleming, 142 Mich App 119, 127; 369 NW2d 499 (1985). Under the Court of Appeals analysis, if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence. If, however, the record shows that the court did no more than address the factor of remorsefulness as it bore upon defendant’s rehabilitation, then the court’s reference to a defendant’s persistent claim of innocence will not amount to error requiring reversal. See, e.g., People v Gray, supra; People v Stubbs, 99 Mich App 643; 298 NW2d 612 (1980); People v Camon, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982); People v Pottruff, 116 Mich App 367; 323 NW2d 402 (1982), lv den 414 Mich 924 (1982); People v Ross, 145 Mich App 483; 378 NW2d 517 (1985). Using similar analyses, other jurisdictions have made the distinction between a court’s consideration of a defendant’s failure to admit guilt and its consideration of a defendant’s lack of remorse.¹ We would approve of the Court of Appeals analysis and would adopt its conclusion that a defendant’s lack of remorse may be considered by a court in imposing sentence.

It is permissible to infer a defendant’s lack of remorse from statements contained in presentence reports. MCL 771.14; MSA 28.1144; People v Lee, 391 Mich 618; 218 NW2d 655 (1974); People v Carter, 128 Mich App 541, 550; 341 NW2d 128 (1983). As noted by Maine’s Justice Caroline D. Glassman,

The sort of information collected in presentence reports provides a far more finely brushed portrait of the man than do a few hours or days at trial. [State v Farnham, 479 A2d 887, 896 (Me, 1984).]

The propriety of a sentencing court’s consideration of a defendant’s remorsefulness at sentencing is also evidenced by the statutory requirement that the court be provided with reports on the "antecedents, character, and circumstances” of a defendant before sentencing.²

The defendant’s attitude as it reflects his rehabilitative potential is a factor by which courts of review determine whether sentencing was improperly influenced by a failure to admit guilt following conviction. See, e.g., Gray, supra; Stubbs, supra; Camon; Pottruff; Ross, supra.

In the case at bar, the sentencing judge made an extensive record, stating the criteria which he had considered before determining sentence. The court repeatedly alluded to the defendant’s failure to acknowledge his sexual "problem.” As stated by the court:

Although you deny the offense, Mr. Wesley, a jury found you guilty of the offense. There were three witnesses that testified that you did it. One of the problems here that I see, as far as any kind of rehabilitation is concerned, is that you do not feel you have a problem in this area and, therefore, any kind of rehabilitation or counseling would have to be on some sort of a forced effort. Because, if you don’t believe you have a problem, which is your position, and you have a right to take that position, the hope of recovery or rehabilitation, however one wants to put it, diminishes, in my opinion, and makes the situation a difficult situation. If you believe you don’t need counseling, then it has a negative impact on any counseling that’s required by the Court. Also, that in — is a situation which leads the Court to believe that any kind of rehabilitation would have to take place in prison. Not only because of the less likelihood of rehabilitation taking place, but also the fact that it would be the threat to the safety of society, more particular in this case, the safety of children, if you’re out in some sort of a program on the outside being forced to have this kind of counseling. [Emphasis added.]_

The emphasized language, particularly the three references to the defendant’s failure to recognize that he has a problem, manifests the trial judge’s concern with the defendant’s failure to appreciate the detrimental effect of his sexual actions, as opposed to his failure to admit guilt.

The present case is unlike Grable, supra, where the sentencing court erroneously considered the defendant’s failure to admit guilt. Here, the sentencing judge neither asked defendant to admit his guilt nor offered him a lesser sentence if he did. While rewarding a defendant for a posttrial admission of guilt would violate the defendant’s right to appeal, the implication of better treatment on sentencing found in Grable and its progeny, if he admitted his guilt, was not present here. The court never indicated in any manner that an admission of guilt would reduce the defendant’s sentence. If there had been such an indication, then the sentence would have been improperly influenced by the defendant’s claim of innocence. Instead, the court focused on the history and character of the defendant as evidenced from the presentence report in determining his potential for rehabilitation.

The defendant had an opportunity to challenge the presentence information, and the judge’s conclusion based thereon, either contemporaneously or upon filing a motion to correct error. No objection was ever made.

The court found the defendant’s undenied past sexual conduct with his daughters and the victim’s sister to be relevant to its evaluation of the defendant’s potential for rehabilitation. In addition to the defendant’s sexual misconduct, Judge Caprathe indicated in his sentencing other factors that were causing him to go outside the sentencing guidelines. He repeated those factors, none of which contained any reference to a failure to admit guilt on the part of the defendant. This is evidenced by the judge’s following remarks:

Have to take into consideration here the family of the child and actually of the children, because the same occurrences have been alleged with respect to a sister of the child. Both of the children are in counseling. And the particular victim in this case in which you were convicted, a seven year old victim, already having to have psychiatric counseling, there’s no way to tell what effect this is gonna have on her life. How she’ll — ever be able to have a normal relationship with another boy. What will her parents tell her when she begins to date? And what will be explained to her with respect to the normal sexual activities of consenting adults. And how will she be able to differentiate those matters? And what will happen to her when she’s older and is confronted with her own children? These are all question marks which, in my opinion, enhance the seriousness of such a crime and are a message to me and to society that these kinds of offenses cannot be tolerated. And if they’re gonna continue to take place, then they should be dealt with harshly by the courts and by the system, so that people contemplating them, if there is any way to deter those individuals, that at least the sentencing procedure would be one aspect of a deterrence.

In this case, the insertion of the defendant’s penis in the victim’s mouth; the sexual contact with the daughter of the individual himself; the same thing happening with another victim at other times, the sister of the victim; the fact that he has had sexual contact with his own daughters; that he threatened his son with a shotgun; the fact that his son indicates that he’s got a problem with drinking and his own contrary denial with respect to that; admitting that he does drink wine everyday but not on a[n] excessive basis, merely a — I believe it was four ounces or some amount that would likely not be in excess; those are all factors, except for the first one that I mentioned — the first one I mentioned was insertion of the penis in the mouth, that factor is taken into consideration in the guidelines — but those other factors that I’ve mentioned, and I’ll repeat ’em so that it’s clear that these are the reasons for my variance from the guidelines. The sexual contact with his own daughters; the sexual contact with the same victim at other times; the sexual contact with the victim’s sister; the threatening of his son with a shotgun in his past; and the fact that he has more of a drinking problem than he is willing to admit and denies that, both in the past and present — and I’m only talking about a past drinking problem; there’s no way for me to know currently whether he has one or not. But from his admission in the previous history it would appear that there’s — possibly that it’s there. Those are the factors that I believe the guidelines do not take into consideration and allow points for, and would require the Court to go beyond the guidelines as they are set forth. And for all of those reasons, then, the Court believes that I must exceed the guidelines, which would have a six year minimum.

Therefore, it’ll be the sentence of the Court that the dev — defendant be sentenced to the custody of the Department of Corrections for a maximum period of 60 years, which is set by the Court, and a minimum period of 40 years, which is also set by the Court. And that the Department of Corrections make available to him the possibility of therapy for sexual crimes against children and that the Court recommends to both Mr. Wesley and to the prison system that this counseling take place. [Emphasis supplied.]

After reviewing the full comments made by the sentencing judge, as well as the authorities cited above, we would find that the trial court did not seek an admission of guilt with the implied promise of a reduced sentence if the defendant admitted guilt, and that defendant’s sentence was not improperly influenced by his failure to admit guilt as to the crime at issue. We believe that the court was merely addressing the factor of remorsefulness as it bore upon defendant’s rehabilitation. Imposition of the enhanced sentence did not constitute an invalid attempt to punish defendant for exercising his constitutional right to maintain his innocence as the court expressly disavowed any such improper motivation and as the trial court could properly consider evidence in the presentence report of prior behavior.³

Accordingly, we would affirm the decision of the Court of Appeals.

Griffin, J., concurred with Archer, J.

1 See, e.g., Poteet v Fauver, 517 F2d 393 (CA 3, 1975); Herbert v Maryland, 31 Md App 48; 354 A2d 449 (1976); People v Moffett, 55 Ill App 3d 939, 941-942; 13 Ill Dec 647; 371 NE2d 364 (1977); People v Mosley, 87 Ill App 3d 903; 42 Ill Dec 766; 409 NE2d 381 (1980); People v Costello, 95 Ill App 3d 680, 687-689; 51 Ill Dec 178; 420 NE2d 592 (1981); People v Rodriquez, 100 Ill App 3d 244, 249-251; 55 Ill Dec 440; 426 NE2d 586 (1981); People v Albanese, 102 Ill 2d 54, 80-81; 79 Ill Dec 608; 464 NE2d 206 (1984); People v Danis, 129 Ill App 3d 664, 668-670; 84 Ill Dec 798; 472 NE2d 1194 (1984); State v Farnham, 479 A2d 887 (Me, 1984); Schiro v State, 479 NE2d 556 (Ind, 1985); Mahla v State, 496 NE2d 568, 575 (Ind, 1986); Guenther v State, 495 NE2d 788 (Ind, 1986), aff'd in part and vacated in part 501 NE2d 1071 (Ind, 1986).

2 MCL 771.14; MSA 28.1144 provides in relevant part:

Before sentencing any person charged with a felony, and, if directed by court, in any other case in which any person is charged with a misdemeanor within the jurisdiction of the court, the probation officer shall inquire into the antecedents, character, and circumstances of the person, and shall report in writing to the court.

3 Contrary to Justice Brickley’s opinion, we believe that use of the three-pronged test discussed at ante, pp 713-714 enunciates a practical distinction between consideration of a lack of remorse and a failure to admit guilt. In the instant case, we find the trial judge’s concerns with regard to the defendant’s failure to appreciate the detrimental effect of his sexual actions to be akin to consideration of "a defendant’s callousness or indifference to the plight of the victim, even if he continues to maintain his innocence,” which Justice Brickley acknowledges is an appropriate consideration. See concurring opinion, post, p 725.

Justice Brickley observes that it is a "rare situation where a defendant has been wrongly convicted . ...” If so, it would be an injustice to require a sentencing judge to impose sentence with the thought that the defendant’s assertions of innocence are true and the jury’s verdict of guilty, as well as other evidence, such as an unchallenged presentence report, are incorrect.