Court of Appeals Halts Downward Departure

In People v McNeil, an unpublished per curiam opinion of the Michigan Court of Appeals, decided October 4, 2007, the Court of Appeals found that the trial court had abused its discretion by granting the defendant a downward departure from the sentencing guidelines for reasons that were not substantially compelling. The defendant pleaded guilty to CSC I and was sentenced to 10 to 22 months, although the recommended statutory range for the offense is 27 to 45 months. The trial court indicated that the departure was warranted because the defendant was attending school, had completed sex offender counseling, had registered as a sex offender, had tested negative for drugs and alcohol, and had reported to the probation department as required. Basically, the defendant did what he was supposed to do.

The Court of Appeals reasoned that a defendant should not be rewarded for doing what is expected of him and that granting a downward departure under these circumstances constitutes an abuse of discretion absent any other substantial and compelling reason for the downward departure. The sentence was vacated and remanded to the trial court for re-sentencing. The lesson: if a defendant has not stepped up and done more than what is naturally expected of him, his sentence is not likely to be stepped down.