Sentencing; Adequacy of the explanation & justification for a departure sentence; People v Walden; People v Dixon-Bey; References to defendant’s apparent lack of remorse in connection with status conference delays; Absence of a rationale for the extent of the departure; People v Smith

The court held “that the trial court provided adequate explanation and justification for a departure sentence in this case[.]” But it found that remand and resentencing were required (1) to ensure the “sentence was not influenced by the trial court’s improper consideration of the fact that defendant waited to plead guilty” and (2) for further clarification of the reasons for the extent of the departure. Defendant pled guilty to CSC III. The trial court departed from the minimum guidelines range of 24 to 40 months and sentenced him to 10 to 15 years. It “discussed some topics already considered by the OVs, such as: (1) the psychological injury to [victim-]DH, (2) the exploitation of a vulnerable victim, (3) defendant’s pressuring statements to DH and her grandmother to not report his crimes, and (4) DH’s disclosure of at least three specific assaults by defendant[.]” However, it also discussed topics the OVs did not consider, “such as: (1) the timeframe in which defendant took accountability and expressed remorse; (2) the fact that defendant was charged with three” CSC I counts and that the circumstances indicated he “was guilty of at least two” CSC I counts; “and (3) the trial court’s belief that defendant was a risk to children, especially considering that [his] actions took place in the presence of DH’s unaware mother and brother.” The court concluded “the trial court’s sentencing rationale—which spanned six pages of transcript—provided adequate explanation and justification for a departure sentence” here. But it was concerned about “the trial court’s: (1) references to defendant’s apparent lack of remorse in connection with the delay of status conferences in this case, and (2) rationale, or lack thereof, explaining the extent of the departure imposed.” The court noted that trial courts “may not factor a defendant’s delay in accepting a plea deal as a reason for a departure sentence. Doing so could be seen as penalizing a defendant for exercising his or her right to a trial.” A statement made by the trial court suggested it “may have been motivated to penalize defendant for waiting to accept a plea deal.” This required remand and resentencing. The court also found there was “a question as to whether the trial court provided adequate reasons for the extent of the departure imposed.” Vacated and remanded. The court retained jurisdiction.