This post examines a recent opinion from the Court of Appeals of Michigan: People v. Gatzke, 2015 WL 7750157 (2015)
(per curiam). The opinion begins by
explaining that Shawn Lee Gatzke
pleaded guilty to one count of using a computer to commit a crime. [Michigan Compiled Laws] 752.796.
The trial court departed downward from the sentencing guidelines and
sentenced defendant to 5 years of probation, with the first year to be served
in the county jail. The prosecution sought leave to appeal, which we granted.
We remand for further proceedings consistent with this opinion.
People v. Gatzke,
supra.
Michigan Compiled Laws § 752.796 is an unusual criminal statute. As I explained in detail in a post I did four
years ago, only two U.S. states have statutes that create this offense. The Michigan statute is entitled “[u]se of
computers to commit, solicit, attempt, etc., a crime; prosecutions for other
violations of law” and, as I explained in the earlier post, it makes using a
computer to commit (or solicit or attempt to commit) a separate crime.
As I explained in that post, my theory (at least) is
that Michigan and Hawaii (the only other state to have this crime) adopted
these statutes to treat the use of computers to commit crimes in a fashion
analogous to statutes that make it a separate crime, or a factor that
aggravates the sentence imposed for a traditional crime, to use a firearm in
the commission of the offense.
Getting back to the Gatzke
case, the opinion goes on to explain that
[a]t the plea hearing, defendant
admitted that he used a computer to view pictures of children performing sexual
acts and paid someone in another country to take pictures of children
performing particular sexual acts. It is undisputed that defendant
was on probation for possessing and distributing child sexually abusive
material when he was caught with the materials giving rise to the conviction in
this case.
Before sentencing, the trial court
received a report from a psychological evaluation of defendant that occurred
after he entered his guilty plea, as well as reports from two previous
psychological evaluations. The most recent evaluation confirmed, among other
things, that defendant suffers from severe post-traumatic stress disorder
(`PTSD’), alcohol dependence, and sexual addiction. The report also noted that
defendant's sexual addiction appears to be related to the poor coping
strategies utilized by defendant to manage his PTSD.
People v. Gatzke,
supra.
In a footnote the court appended at the end of the first
sentence of the first paragraph quoted immediately above, the Court of Appeals
explained that
Defendant initially stated that he was
not certain whether the photographs that he purchased were reproduced, or
whether the individual receiving payment actually took the photographs.
However, he later clarified that he asked the individual to take pictures of
young children performing sexual acts with his or her cell phone and send the
photographs to defendant.
People v. Gatzke,
supra.
The court went on to explain that at Gatzke’s sentencing,
the trial court acknowledged that this
was defendant's second offense involving child sexually abusive material, and
that defendant had an opportunity for rehabilitation during his probation
sentence for the previous offense. Likewise, the trial court recognized that
this circumstance would normally preclude a more lenient sentence.
Nevertheless, the trial court significantly departed from the minimum range
calculated under the sentencing guidelines, which was 84 to 140 months'
imprisonment, and sentenced defendant to five years' probation, with the first
year in the county jail. The conditions of defendant's probation include: (1)
taking advantage of services offered by the United States Department of
Veterans Affairs (`VA’) (2) successfully completing the VA program prescribed
following a VA assessment, and (3) participating in a substance abuse
evaluation.
The trial court judge provided the
following reasons for the downward departure: (1) the judge's belief that PTSD
is not well understood; (2) his belief that defendant's PTSD prevented him from
recognizing his problems and seeking out treatment, such that defendant is
`numb’ due to his PTSD and engaged in this criminal activity as a result; (3)
the judge's experiences with his own great uncle, who suffered from PTSD
following World War I; (4) the judge's belief that `defendant engaged in these
kind of viewing activities essentially to anesthetize himself from facing his
ongoing problems’; (5) the fact that `it wouldn't surprise [the judge] if
[d]efendant's viewing activities started when he was in the army’ and `if this
is what soldiers did in Afghanistan with their time off if they had computer
access’; (6) his belief that defendant would not have viewed this material if
he had not served in Afghanistan, although `[he] suppose[d] there's no way
of proving it’; and (7) the judge's knowledge of the types of things that
military personnel saw and experienced in Afghanistan based on materials he has
read.
People v. Gatzke,
supra.
The Court of Appeals then took up the legal issue raised by
the appeal, noting that
On appeal, the prosecution argues that
the trial court abused its discretion when it departed from the sentencing
guidelines because it failed to justify its departure with a sufficiently
substantial and compelling reason that was based on objective and verifiable
facts.
The People v. Lockridge, 498 Mich. 358 (Michigan Supreme Court 2015)] court
held that our sentencing scheme `violates the Sixth Amendment right to a jury
trial because it requires “judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables (OVs) that mandatorily increase
the floor of the guidelines minimum sentence range, i.e., the `mandatory minimum’”
sentence under Alleyne.’ Our Supreme Court `concluded that the
appropriate remedy was to render Michigan's sentencing guidelines merely
advisory.’
Accordingly, our Supreme Court `sever[ed]
MCL 769.34(2) to the extent that it is mandatory and [struck] down
the requirement of a ‘substantial and compelling reason’ to depart from the
guidelines range in MCL 769.34(3).’ `A sentence that departs from the
applicable guidelines range will be reviewed by an appellate court for
reasonableness.’ However, sentencing courts must `continue to consult the
applicable guidelines range and take it into account when imposing a sentence.’
[People v. Terrell, ––– Mich.App –––– (2015) (Docket No. 321573). .
. .
Accordingly, a claim of error based on
a trial court's failure to provide substantial and compelling reasons for a
departure sentence is no longer viable under Michigan law. Instead, after People
v. Lockridge, supra, the proper inquiry is whether a defendant's
departure sentence is reasonable. People v. Lockridge, supra.
People v. Gatzke,
supra (emphasis in the original).
The Court of Appeals then noted that,
[a]s this Court recently recognized,
the Lockridge Court did not set forth the appropriate
procedure for reviewing a sentence for reasonableness. People v.
Steanhouse, __ Mich. App __ (2015). . . . Thus, the Steanhouse Court
adopted the `principle of proportionality’ that was previously in place
under People v. Milbourn, 435 Mich. 630; 461 NW2d 1 (Michigan Supreme Court 1990), `hold[ing] that a sentence that fulfills the principle of
proportionality under Milbourn and its progeny constitutes a
reasonable sentence under Lockridge.’ People v. Steanhouse, supra. . . .
In addition, the panel provided the
following procedure for reviewing a defendant's departure sentence:
`Given that Lockridge overturned
the substantial and compelling reason standard, Lockridge, supra, which
was in place at the time of defendant's sentencing, and given our conclusion
that the principle of proportionality established under Milbourn and
its progeny is now the appropriate standard by which a defendant's sentence
should be reviewed, we also find that the procedure articulated in Lockridge,
and modeled on that adopted in U.S. v. Crosby, 397 F3d 103
(U.S. Court of Appeals for the 2d Circuit 2005), should apply here. Lockridge, __
Mich. at __. . . .
As recently stated by this Court in People v. Stokes, __
Mich.App __, . . . (2015), `the purpose of a Crosby remand is
to determine what effect Lockridge would have on the defendant's
sentence, so that it may be determined whether any prejudice resulted from the
error.’ While the Lockridge Court did not explicitly hold
that the Crosby procedure applies under the circumstances of this
case, we conclude this is the proper remedy where, as here, the trial court was
unaware of and not expressly bound by a reasonableness standard rooted in the Milbourn principle of proportionality at
the time of sentencing.
People v. Gatzke,
supra.
Finally, the Court of Appeals explained that under the
Crosby procedure, which `offers
a measure of protection to a defendant[,]’ `a defendant is provided with an
opportunity “to avoid resentencing by promptly notifying the trial judge that
resentencing will not be sought.’” People v. Stokes, supra . . . .Given the possibility that
defendant could receive a more severe sentence, defendant should be provided
the opportunity to avoid resentencing if that is his desire. People v.
Stokes, supra.
Accordingly, we remand the matter to the trial court to
follow the Crosby procedure outlined in Lockridge. Defendant
`may elect to forego resentencing by providing the trial court with prompt
notice of his intention to do so.’ If `notification is not received in a timely
manner,’ the trial court shall continue with the Crosby remand
procedure as explained in Lockridge.” People v. Stokes,
supra. . . .
People v. Gatzke,
supra.
The Court of Appeals then applied the above principles to
this case, noting that
[h]ere, as in People v. Steanhouse,
supra, the trial court was neither aware of, nor expressly bound by, a
reasonableness standard grounded in the Milbourn principle of
proportionality when it imposed defendant's sentence. As such, under Steanhouse, remand is necessary so that
the trial court may implement the Crosby remand procedure as
articulated in Lockridge. .
. .
However, unlike in Steanhouse, the
prosecution is the party challenging on appeal the trial court's departure from
the sentencing guidelines. Accordingly, we conclude that it is the prosecution
that may elect to forgo resentencing by promptly notifying the trial court of
its intent to do so. See People v. Steanhouse, supra. . . . If the trial court does not
receive such notice from the prosecution in a timely manner, the `court shall
continue with the Crosby remand procedure as explained
in Lockridge.’ People v. Steanhouse, supra.
People v. Gatzke,
supra.
The Court of
Appeals therefore remanded “this case for further proceedings consistent
with this opinion. We do not retain jurisdiction.” People v. Gatzke, supra.
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