Opinion
353393
09-23-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAKE DOUGLAS-ADAM RAUCH, Defendant-Appellant.
UNPUBLISHED
Tuscola Circuit Court LC No. 17-014234-FC
Before: Cavanagh, P.J., and K. F. Kelly and Redford, JJ.Per Curiam.
Defendant appeals as of right his sentence after remand by this Court for resentencing. We affirm.
I. BACKGROUND
Defendant sexually assaulted a female acquaintance in his pickup truck after driving her to a remote secluded area. The factual background is set forth in this Court's previous opinion which is incorporated herein by reference. People v Rauch, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2019 (Docket No. 345330), 1-2. A jury convicted defendant of four counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (sexual penetration accomplished by force or coercion and causing personal injury), and five counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(f) (sexual contact accomplished by force or coercion and causing personal injury). At defendant's first sentencing, the trial court sentenced defendant to 15 to 50 years' imprisonment for each CSC-I count, and 10 to 15 years' imprisonment for each CSC-II count. The trial court imposed a consecutive sentence, ruling that defendant's sentence on one count of CSC-I would precede the sentences served for his remaining counts, which would be served concurrently. Id. at 1. On appeal, this Court affirmed defendant's convictions but remanded for resentencing because the trial court incorrectly scored Offense Variable (OV) 3, and the trial court failed to explain its reasons for the imposition of consecutive sentencing. Id. at 14.
At his resentencing hearing, the trial court corrected the OV 3 scoring error. Defendant had no objections to his presentence investigation report (PSIR) and requested no additions or deletions. The corrected assessment of five points for OV 3 revised defendant's minimum sentencing guidelines range to 126 to 210 months. Defendant requested the trial court sentence him within those guidelines and that the trial court impose concurrent sentences and not a consecutive sentence.
The prosecution played two recorded phone calls that defendant made from jail. In one of the calls, which defendant made while his jury trial pended, he spoke with a young woman in a sexually explicit manner and discussed meeting and having sex with her after his release from jail. At one point, defendant joked that, before he could have sex in his truck, he would need a bumper sticker that said, "smile you're on camera." In the other phone call which defendant made just after his convictions with his mother, defendant stated, "And that f**** [female prosecuting attorney], I should have told her you want to f***** know what rape is? Wait 'til I get out of prison . . . ."
At resentencing, the trial court again imposed a consecutive sentence. The trial court ruled that defendant's sentence for Count 1 (CSC-I) would precede his sentences for the remaining counts of CSC-I and CSC-II. The trial court explained the propriety of imposing consecutive sentences as follows:
[T]he defendant engaged in post-verdict criminal and threatening conduct wherein in a telephone call with his mother from the jail after the verdict he stated in reference to the assistant prosecuting attorney . . . essentially when I get out, I'm gonna show [the female prosecutor] what rape is. . . .
The defendant has continued to demonstrate a lack of acceptance of any responsibility nor any remorse as is clearly demonstrated by the statements in the phone calls which were presented today . . . and of most concern is the comments obviously reference [sic] the assistant prosecuting attorney.
The post-verdict behavior only highlighted the defendant's disdain for and disrespect for all women and his willingness to perpetrate violence on women as was quite evident by the jury's verdict for the crimes for which he is being sentenced. Of specific concern to the Court is his willingness and stated intention to commit similar crimes in the future.
Although the defendant has no prior criminal history, the defendant's COMPAS evaluation which is part and parcel of the [PSIR] indicates that it is highly probable that he has a criminal . . . personality . . . . This seems to be consistent with his actions during the underlying offense, his demeanor while testifying and the content of his testimony, and, again, his post-verdict threats of violence of a sexual nature against a female prosecuting attorney.
Based on these additional factors which were not and cannot be addressed in the defendant's guidelines score, not to mention that he was convicted of nine counts and, quite honestly, the guidelines only take into account three, and in order to adequately protect the public from the defendant now and in the future, a consecutive sentence as to Count 1 is appropriate.
II. STANDARD OF REVIEW
"[W]hen a statute grants a trial court discretion to impose a consecutive sentence, the trial court's decision to do so is reviewed for an abuse of discretion, i.e., whether the trial court's decision was outside the range of reasonable and principled outcomes." People v Norfleet, 317 Mich.App. 649, 654; 897 N.W.2d 195 (2016) (citation omitted). Trial courts must articulate the reasons for imposing a consecutive sentence. Id. We review for an abuse of discretion a trial court's discretionary sentencing decisions. Id. at 662-663. We review for clear error the trial court's findings of fact. People v Lampe, 327 Mich.App. 104, 125-126; 933 N.W.2d 314 (2019). "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 N.W.2d 161 (2014) (quotation marks and citation omitted).
III. ANALYSIS
In this appeal, defendant again argues that he is entitled to resentencing and requests remand for resentencing before a different judge. First, defendant contends the trial court violated his due-process rights by relying on defendant's Correctional Offender Management Profiling for Alternative Solutions (COMPAS) Risk/Needs Assessment, which the Michigan Department of Corrections (MDOC) agent referenced in defendant's PSIR, when imposing a consecutive sentence. Second, defendant asserts the trial court abused its discretion by again imposing a consecutive sentence. Because the trial court complied with this Court's instructions at resentencing, and gave reasons for the imposition of a consecutive sentence, we affirm.
Citing the trial court's reference to his COMPAS evaluation, defendant argues that the trial court violated his due-process rights by sentencing him on inaccurate information. Because defendant failed to object to the COMPAS assessment's inclusion in his PSIR or that the trial court relied on it, this issue is unpreserved. See People v McCrady, 244 Mich.App. 27, 32; 624 N.W.2d 761 (2000), citing People v Bailey (On Remand), 218 Mich.App. 645, 647; 554 N.W.2d 391 (1996). Therefore, we review for plain error. See People v Pipes, 475 Mich. 267, 279; 715 N.W.2d 290 (2006). Under plain-error review, reversal is warranted only if the defendant can establish the following: (1) an error occurred; (2) that error was plain or obvious; and (3) that error affected the defendant's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. If the defendant successfully meets his burden, this Court must exercise its discretion and reverse only if "the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotations marks, alteration, and citation omitted).
Due process requires that a defendant be sentenced on the basis of accurate information. People v Williams, 215 Mich.App. 234, 236; 544 N.W.2d 480 (1996); People v Malkowski, 385 Mich. 244, 249; 188 N.W.2d 559 (1971); U.S. Const, Am XIV, § 1; Const 1963, art 1, § 17. Accordingly, "a sentence is invalid if it is based on inaccurate information." People v Miles, 454 Mich. 90, 96; 559 N.W.2d 299 (1997). In this case, citing several academic articles, defendant contends that the COMPAS assessment in his PSIR was inaccurate and the trial court erred by relying on it.
COMPAS is a "software used by the Department of Corrections to assess the risk and needs of the correctional population in Michigan." Michigan Department of Corrections, Field Operations Administration, Administration and Use of COMPAS in the Presentence Investigation Report (2017), p 2 (hereinafter "MDOC Field Operations Administration"). The MDOC first started using COMPAS to introduce "evidence-based sentencing" into the correctional process. Id. at 2. Stated generally, evidence-based sentencing is a method in which factors such as one's education, employment, attitude, age, and gender are used to assess the likelihood that one will engage in future criminal behavior. Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan L Rev 803, 805 (2014). The MDOC uses the COMPAS Risk/Needs Assessment to determine what programming in prison would most likely reduce an offender's likelihood of recidivism on release. MDOC Field Operations Administration at pp 2, 8, 17, 19, 22, 27. "Since February, 2014, every PSIR prepared by the [MDOC] has had a COMPAS Risk/Needs Assessment completed as part of the presentence process." Id. at 22. "The goal of using the Needs Assessment in the [PSIR] is to better target the offender's needs and to have probation conditions that will correspond to those needs, or to better inform the institution of the needs of the offender upon incarceration." Id. at 23.
Defendant contends he is entitled to resentencing because the trial court improperly considered his COMPAS assessment to determine the length of his sentence. He contends that COMPAS assessments are inherently unreliable and use of his assessment violated his right to due process because he is entitled to the use of accurate information and not unreliable evidence at sentencing.
"[T]he 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 N.W.2d 793 (1990) (citations omitted). "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 N.W.2d 44 (2006). The PSIR "is presumed to be accurate and may be relied on by the trial court unless effectively challenged by the defendant." People v Callon, 256 Mich.App. 312, 334; 662 N.W.2d 501 (2003).
In this case, defense counsel specifically indicated approval of the PSIR and its contents, without deletion or addition, which included the COMPAS evaluation. Defendant, therefore, waived any objection to the trial court's consideration of the contents of the PSIR. See People v Jordan, 275 Mich.App. 659, 666; 739 N.W.2d 706 (2007) (noting that error to which the aggrieved party contributed by plan or negligence cannot be grounds for reversal). As this Court has previously stated: "The presentence investigation report is an information-gathering tool for use by the sentencing court. It is intended to insure that the punishment is tailored not only to the offense, but also to the offender." Lampe, 327 Mich.App. at 120 (citations and quotation marks omitted). Consequently, defendant's contention the trial court erred, and violated his right to due process, by referencing the COMPAS assessment at his resentencing lacks merit given defendant's failure to challenge the accuracy of any information, including the COMPAS assessment, in his PSIR. The trial court did not violate defendant's right to due process, and therefore, he has failed to establish plain error affecting his substantial rights.
Defendant also argues that the trial court abused its discretion by imposing consecutive sentences. We disagree.
In Michigan, "concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute." People v Ryan, 295 Mich.App. 388, 401; 819 N.W.2d 55 (2012) (quotation marks and citation omitted). The CSC-I statute, MCL 750.520b, authorizes a trial court to impose consecutive sentences. Id. at 402, citing MCL 750.520b(3). MCL 750.520b(3) states that a trial court "may order a term of imprisonment . . . to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." MCL 750.520b(3). A CSC-I offense and another criminal offense to which a CSC-I sentence will run consecutively are a part of "the same transaction" if they both occurred during one "continuous time sequence." People v Bailey, 310 Mich.App. 703, 725; 873 N.W.2d 855 (2015) (citation omitted). A CSC-I sentence may run consecutive to another CSC-I offense if both of those offenses occurred during a continuous time sequence. Ryan, 295 Mich.App. at 406-407. There is no dispute that defendant committed multiple counts of CSC-I and CSC-II during a continuous time sequence. The trial court, therefore, had discretion to impose a consecutive sentence.
A trial court's discretion to order that sentences run consecutive to each other is not unfettered. "Michigan has a clear preference for concurrent sentencing and that the imposition of a consecutive sentence is a strong medicine." Norfleet, 317 Mich.App. at 665 (quotation marks and citation omitted). In Norfleet, this Court explained that the" 'strong medicine' of consecutive sentences [should be] reserved for those situations in which so drastic a deviation from the norm is justified." Id. at 665. When a trial court elects to impose consecutive sentences, it must explain on the record why it chose to do so. Id. at 654. Respecting each consecutive sentence it wishes to impose, a trial court must cite "particularized reasons-with reference to the specific offenses and the defendant" that justify the "strong medicine" of consecutive sentencing. Id. at 666. Reasons stated in general or imprecise terms are not enough. Id. Instead, a trial court must explain what specific aspects of defendant's background, his history, and the nature of his offenses justify consecutive sentencing. Id.
Defendant argues that he did not deserve consecutive sentencing because, his commission of CSC-1 offenses lacked exceptional brutality and actually concerned "a rather classic she said, he said, between acquaintances, who disagreed on whether the final sexual acts were consensual, a scenario repeated often on college campuses across the country, with no circumstances that took it outside of the norm of these type of offenses." He contends that the trial court's reasons were inadequate to justify a consecutive sentence. We disagree.
As has been discussed in the context of proportionality, this Court has recognized factors for consideration in sentencing to 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, 352-353; 901 N.W.2d 142 (2017) (citation omitted).]
In this case, the record reflects that the trial court, in imposing one consecutive sentence, gave several reasons for its decision. The trial court recognized that defendant had nine convictions of CSC-I and CSC-II involving one criminal incident involving the victim. The trial court correctly observed that the number of convictions (nine), were not adequately accounted for by the sentencing guidelines, which "only take into account three." The trial court also expressed concern regarding defendant's "post-verdict criminal and threatening conduct" involving defendant's telephone calls suggesting he would "show [the female prosecutor] what rape is." The trial court found that defendant's threats of violence "highlighted the defendant's disdain for and disrespect for all women and his willingness to perpetrate violence on women as was quite evident by the jury's verdict for the crimes for which he is being sentenced." The trial court also found that defendant's statements demonstrated "his willingness and stated intention to commit similar crimes in the future." The trial court reflected upon the record evidence and properly found that defendant exhibited an ongoing disrespectful attitude toward women, which he displayed by his demeanor at trial which was "consistent with his actions during the underlying offense[s]." The record demonstrates that the trial court clearly explained in detail the reasons that justified the imposition of a consecutive sentence. Defendant had been convicted of multiple CSC offenses which were not adequately accounted for by the guidelines. The evidence established the violent nature of the offenses, and defendant's conduct and statements indicated that he intended to engage in similar criminal and violent behavior in the future.
Further, the trial court observed defendant's lack of remorse and his failure to accept responsibility for his conduct. Defendant argues that by referencing this, the trial court impermissibly sentenced him on the basis of his refusal to admit guilt. See People v Conley, 270 Mich.App. 301, 314; 715 N.W.2d 377 (2006). Defendant is mistaken. A "defendant's absolute lack of remorse and low potential for rehabilitation" are both "legitimate considerations in determining a sentence." People v Houston, 448 Mich. 312, 323; 532 N.W.2d 508 (1995) (quotation marks and citation omitted). In sentencing defendant, the trial court never referenced or suggested defendant's assertion of innocence served as a ground for sentencing. Rather, the trial court properly considered defendant's danger to society and lack of rehabilitative potential given his failure to recognize his responsibility, or be remorseful for, his actions.
Defendant argues further that the trial court erred by considering his "highly probable" score for a criminal personality in his COMPAS assessment. The trial court cited defendant's COMPAS assessment as suggesting a high probability that defendant "has a criminal personality," but did not rely solely or even predominantly on the assessment tool for sentencing. Rather, the record indicates that the trial court focused on defendant's demeanor at trial and his postconviction criminal and violent threatening behavior toward the female prosecuting attorney. Defendant's conduct concerned his potential for rehabilitation, which is an appropriate factor for consideration in sentencing. The trial court did not clearly err in concluding that evidence established that defendant had a "disdain for and disrespect for all women" and "exhibited a willingness to perpetrate violence on women."
Defendant argues the trial court misconstrued his remarks about the prosecutor, contending that they did not constitute a true threat but hyperbole and an expression of his frustration. While clearly threatening in their intent, even if these remarks were not construed to be an actual threat, they still demonstrated defendant's hostility toward women and lack of insight regarding the seriousness of his crimes. Moreover, the trial court did not err by considering defendant's postconviction behavior in justifying its sentencing decision. A trial court has "broad discretion" in determining what sources and types of information to be considered when imposing a sentence. See People v Albert, 207 Mich.App. 73, 74-75; 523 N.W.2d 825 (1994).
In sentencing defendant, the trial court set forth on the record its reasons, specific to defendant's crimes, character, and background, justifying the imposition of a consecutive sentence in this case. Considering the trial court's extensive knowledge of the facts and direct familiarity through observation of defendant, the trial court sat in the best position to decide the appropriateness of consecutive sentencing. Id. at 270. Further, and equally important, the Legislature has expressly authorized trial courts to impose consecutive sentences whenever an offender commits multiple counts of CSC-I and CSC-II in the same transaction. See Ryan, 295 Mich.App. at 408-409. Accordingly, defendant is not entitled to resentencing.
Defendant has failed to show that the trial court relied on inaccurate information in fashioning his sentence and has failed to establish that the trial court abused its discretion in imposing consecutive sentences. Because defendant is not entitled to resentencing, we need not address his argument that resentencing should be before a different trial judge.
Affirmed.