People v. Johnston

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DONALD DUANE JOHNSTON, Defendant-Appellant.

No. 357256

Court of Appeals of Michigan

April 14, 2022

UNPUBLISHED

Jackson Circuit Court LC No. 11-005131-FC

Before: Gleicher, C.J., and K. F. Kelly and Patel, JJ.

Per Curiam

Ten years ago, Donald Duane Johnston pleaded guilty to one count of first-degree criminal sexual conduct (CSC-I), arising from sexual penetration of two children under age 13. Johnston had been convicted of the same offense in 1990. In exchange for his 2012 plea, the prosecutor agreed to forego the life-without-parole sentence applicable to repeat CSC-I offenders. Departing from Johnston's sentencing guidelines range, the trial imposed a parolable life sentence.

Despite Johnston's timely request, appellate counsel was not appointed until 2021. We granted Johnston's delayed application for leave to appeal, limiting the question presented to whether his sentence was "invalid and unreasonable." People v Johnston, unpublished opinion of the Court of Appeals, entered July 19, 2021 (Docket No. 357256). We now affirm.

I. BACKGROUND

When offering his 2012 guilty plea, then-57-year-old Johnston admitted that he had digitally penetrated two children of family friends. One girl was five years old, and the other age 6. Johnston's 1990 conviction for CSC-I also involved the sexual assault of a young child. He served six years in prison for that offense.

As a repeat CSC-I offender, Johnston faced a sentence of "imprisonment for life without the possibility of parole" under MCL 750.520b(2)(c). In exchange for his plea, however, the prosecution agreed to seek sentencing under the more general sentencing provision of subsection (2)(a) ("imprisonment for life or for any term of years"). During the guilty plea hearing, the court specifically warned Johnston that he might face a term of life imprisonment at sentencing.

The parties agreed that Johnston's minimum sentencing guidelines range was 126 to 262 months, or 10½ years to 21 years and 10 months. The prosecutor urged the court to depart upward from the sentencing guidelines, emphasizing that she was "hard pressed to find a number that would come up to the correct punishment that the defendant needs for all the crimes that he has committed against children in our community." The prosecutor read aloud from a letter authored by the victim of the 1990 offense describing the profound and lingering emotional trauma associated with Johnston's sexual abuse. The prosecutor argued that the young victims in this case would face the same trauma and deserved to be reassured that Johnston would remain imprisoned for a long time. Johnston did not object to the court's consideration of the letter.

The court sentenced Johnston to imprisonment for life with the possibility of parole, noting that he sexually abused the two young victims "on a number of occasions" and had a criminal history of sexual abuse against very young girls. The court continued, "There's no question in the court's mind that these are acts of a deviant who preys on these young girls . . . . I had the old file pulled and I read through the file also, and I know that the young girl in [the 1990] case was 5 or 6 years of age also." And the court indicated that it had considered the letter presented by Johnston's previous victim as well as an additional allegation involving a three-year-old child that did not go to trial.

I think that's the whole idea in your picking on these people, Mr. Johnston, that you realize that these people are not only vulnerable but they are individuals that are not probably gonna be able to come into court, talk to the police and elaborate on what it is that you did to them, and so you take advantage of them.

And, of course, with your deviation here that you're only apparently interested in small children, that just adds to the problems that you face, and of course, that the victims face.

The court then explained its rationale for departing from the guidelines, anchoring its reasoning in the facts of the case and Johnston's history of abusing young girls. The court summarized that "[a] long period of incarceration is required, in the court's opinion, to protect the most innocent of young children from this sexual predator who cannot or will not control himself." Johnston would "spend the rest of [his] life in prison," the court concluded, and "it's the intent of the court that you never get out and you never come into contact with young children."

We turn to the single legal question before us: whether Johnston's parolable life sentence is "invalid and unreasonable."

II. THE PREVIOUS VICTIM'S STATEMENT

Johnston first asserts that the trial court erred by reviewing the file from his 1990 conviction and by considering the victim's letter, which he characterizes as "highly inflammatory, highly improper." He accurately notes that neither the William Van Regenmorter Crime Victim's Rights Act (CVRA)^[1] nor MCR 6.425(D)(2)(c) specifically authorize victims of previous crimes to provide statements at sentencing hearings. Allowing the victim of a previous crime to address the trial court about a defendant's current crime, Johnston contends, violates the spirit of the CVRA.

This Court has repeatedly rejected Johnston's argument. "Plainly, the law does not limit victim's impact statements to direct victims." People v Waclawski, 286 Mich.App. 634, 692; 780 N.W.2d 321 (2009). "Michigan's sentencing system promotes informed, conscientious decision making by providing the parties an almost unlimited opportunity to submit pertinent information before sentencing." People v Wybrecht, 222 Mich.App. 160, 171; 564 N.W.2d 903 (1997). "[T]he trial judge must bring to bear at the moment of sentencing all the knowledge, experience, and ability available, because the decision made at that moment will be that judge's ultimate ruling." People v Pfeiffer, 207 Mich.App. 151, 158-159; 523 N.W.2d 640 (1994) (quotation marks and citation omitted). Accordingly, "[e]very effort is made to ensure that the judge has adequate and accurate information upon which to base the sentencing decision." Id. (quotation marks and citation omitted). In People v Albert, 207 Mich.App. 73, 74-75; 523 N.W.2d 825 (1994), we affirmed a sentence after an attorney for a victim of the defendant from a civil case was allowed to address the sentencing court, over the defendant's objection. This Court stated that, even though the attorney was not a "victim" according to statute, "a sentencing court is afforded broad discretion in the sources and types of information to be considered when imposing a sentence, including relevant information regarding the defendant's life and characteristics." Id. at 75. See also Waclawski, 286 Mich.App. at 691-692.

The trial court had the discretion to consider the 1990 victim's statement. The statement was particularly pertinent because the circumstances surrounding that crime mirrored those in this case. That Johnston re-offended in precisely the same manner was relevant to at least two sentencing considerations: protecting society and reformation of the defendant. Resentencing on this ground is not required.

Johnston also argues that the trial court relied on inaccurate information. "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). "[A] sentence is invalid if it is based on inaccurate information." People v Miles, 454 Mich. 90, 96; 559 N.W.2d 299 (1997). Because he has not identified any inaccurate information on which the trial court relied, we consider his argument abandoned. See People v Mackle, 241 Mich.App. 583, 604 n 4; 617 N.W.2d 339 (2000) ("A party may not merely state a position and then leave it to this Court to discover and rationalize the basis for the claim.").

III. THE REASONABLENESS OF THE DEPARTURE SENTENCE

The reasonableness of Johnston's parolable life sentence presents a more difficult question. We begin our analysis by noting that Johnston has not challenged the scoring of his guidelines.

Nor did his application raise an argument that the plea was illusory.^[2] Although counsel's legal argument on application and appeal are premised on the standards of review described in People v Lockridge, 498 Mich. 358, 392; 870 N.W.2d 502 (2015), and People v Steanhouse, 500 Mich. 453, 474; 902 N.W.2d 327 (2017) (Steanhouse II), we are not convinced those standards necessarily apply.

Had we granted a timely application for leave to appeal, we would have considered whether the sentencing court articulated "a substantial and compelling reason" for the departure sentence based on "objective and verifiable reasons," and whether the sentence imposed was "proportionate to the defendant's conduct and prior criminal history." People v Smith, 482 Mich. 292, 299-300; 754 N.W.2d 284 (2008). In 2015, our Supreme Court decided Lockridge, 498 Mich. at 365, 392, changing the review paradigm. Relevant here, Lockridge jettisoned the need for considering "substantial and compelling reasons" for a departure, declaring that "a sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." Id. at 392.

In People v Barnes, 502 Mich. 265, 274; 917 N.W.2d 577 (2018), the Supreme Court declined to apply Lockridge retroactively "to cases on collateral review[.]" Technically, this is Johnston's direct appeal and not a collateral challenge to his conviction or sentence. But his appeal was not open and ongoing in 2015 counseling against Lockridge's retroactive application. See Barnes, 502 Mich. at 268. Regardless of which review rubric is applied, Johnston's parolable life sentence is neither...