Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KARLA SUE LOCKMAN, Defendant-Appellant.

UNPUBLISHED January 15, 2008

No. 273330 Charlevoix Circuit Court LC No. 05-005010-FH

Before: Davis, P.J., and Murphy and White, JJ. PER CURIAM. Defendant was convicted by a jury of two counts of embezzlement, MCL 750.174(5)(a). Defendant was sentenced by the trial court to concurrent sentences of 5 to 10 years' imprisonment, an upward departure from the sentencing guidelines. Defendant appeals her sentences. We affirm. Defendant was charged with two counts of embezzling funds in excess of $20,000 from Northern Preferred Title Company, where she was employed as a closing agent. Between January and May 2005, defendant took at least $859,278.25 of funds belonging to the title company. Defendant did not dispute that she took the money, but rather she asserted an insanity defense. Several mental health professionals and family members provided conflicting testimony regarding defendant's mental state. The jury nevertheless convicted defendant, and her convictions are not at issue in this appeal. The recommended sentencing guideline range was 0 to 17 months. In support of its upward departure from this range, the trial court reasoned, in part, as follows: The embezzlement of at least $859,278.25 keenly attracts and irresistibly holds this Court's attention. This is an exceptional case. The amount involved is not given sufficient weight in the guidelines and is reason, in and of itself, to merit an upward departure. Further, the guidelines do not consider the widespread path of destruction that these crimes have had on so many people.

-1-


Defendant's first argues that the trial court violated her Sixth Amendment1 right to a jury trial when it departed from the sentencing guidelines on the basis of judicial fact-finding. Defendant raised the same argument in a prior motion to remand filed in this Court. People v Lockman, unpublished order of the Court of Appeals, entered August 16, 2007 (Docket No. 273330). Both the prior motion and the issue now on appeal are predicated on People v Uphaus, 275 Mich App 158; 737 NW2d 519 (2007), rev'd in part, lv den in part, remanded in part ___ Mich ___ (2007). See People v Harper, 479 Mich 599; 739 NW2d 523 (2007). This Court denied the prior motion because our Supreme Court overruled the portion of Uphaus on which defendant relies. For the same reason, we reject this argument now on appeal. Next, defendant argues that the trial court abused its discretion in finding that the amount of money taken by defendant and the injury caused to the victims in this case were substantial and compelling reasons for an upward departure from the sentencing guidelines. We review for clear error the lower court's factual determination of the existence of a particular factor supporting the departure. People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003). The determination that the factor is objective and verifiable is reviewed de novo as a matter of law, and the determination that the factors constituted substantial and compelling reasons for departure is reviewed for an abuse of discretion. Id. at 265-266. An abuse of discretion exists when the sentence imposed is not within the range of principled outcomes. Id. at 269. In ascertaining whether the departure was proper, we must defer to the trial court's direct knowledge of the facts and familiarity with the offender. Id. at 270. A trial court may depart from the sentencing guidelines range if it has a "substantial and compelling reason" to do so, and it "states on the record the reasons for the departure." MCL 769.34(3). Our Supreme Court has stated that "a substantial and compelling reason must be . . . an objective and verifiable reason that keenly or irresistibly grabs our attention; is of considerable worth in deciding the length of a sentence; and exists only in exceptional cases." Babcock, supra at 258 (internal quotations omitted). To be objective and verifiable, the factors "must be actions or occurrences that are external to the minds of the judge, defendant, and others involved in making the decision, and must be capable of being confirmed." People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Further, the trial court cannot depart from the sentencing guidelines based on a factor or characteristic that was previously taken into consideration in the calculation of the sentencing range unless it has determined that it "has been given inadequate or disproportionate weight." MCL 769.34(3)(b). Defendant argues that at the time of her sentencing, offense variable (OV) 9, MCL 777.39 (number of victims), could only be scored when the victims were placed in danger of physical injury. Therefore, defendant contends that the trial court erred in considering victims whose only loss was financial. We disagree. Defendant correctly states that at the time of her sentencing, OV 9 could not

Download PEOPLE OF MI V KARLA SUE LOCKMAN.pdf

Michigan Law