People of Michigan v. Carol Ann Boak ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 3, 2021
Plaintiff-Appellee,
v No. 340201
Clinton Circuit Court
CAROL ANN BOAK, LC No. 16-009711-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and JANSEN and BECKERING, JJ.
PER CURIAM.
Defendant originally applied for delayed leave to appeal, but this Court denied her
application.1 Defendant then appealed to our Supreme Court, which held the matter in abeyance
until it issued an opinion in People v Dixon-Bey, 504 Mich 939; 931 NW2d 302 (2019).2
Ultimately, our Supreme Court remanded defendant’s appeal for consideration as on leave
granted.3 Thus, defendant appeals by leave granted the trial court’s May 1, 2017 plea-based
sentence after defendant pleaded guilty to producing child sexually abusive activity or material,
MCL 750.145c(2); possession of child sexually abusive material, MCL 750.145c(4); and the
distribution or promotion of child sexually abusive material, MCL 750.145c(3). The trial court
sentenced defendant to 12 to 20 years’ imprisonment for the child sexually abusive activity
conviction, 16 months to 4 years’ imprisonment for the possession of child sexually abusive
material conviction, and 48 months to 7 years’ imprisonment for the distribution or promotion of
child sexually abusive material conviction. We affirm.
1
People v Boak, unpublished order of the Court of Appeals, entered November 9, 2017 (Docket
No. 340201).
2
People v Boak, 915 NW2d 363 (Mich, 2018).
3
People v Boak, 505 Mich 867; 935 NW2d 319 (2019).
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I. BACKGROUND
This case arises out of defendant sexually abusing a two-year-old girl, CB, possessing and
distributing photos of CB’s vagina, and possessing and distributing photos of an erect adult penis
next to a nine-year-old girl, TB. CB was sleeping at defendant’s home when defendant removed
her diaper and took a picture of CB in a sexual position with her vagina held open. Defendant sent
that picture to codefendant Kenneth Thelen.
Defendant then met codefendant Terry Plowman, and they discussed getting nude photos
of TB. Plowman babysat TB and took three photos: one photo of his erect penis against her back,
one photo of his penis tucked under her bottom, and one photo of his erect penis next to her head.
Plowman texted those photos to defendant. Defendant then texted those photos to Thelen.
Defendant pleaded guilty to producing child sexually abusive activity or material,
possessing child sexually abusive material, and distributing or promoting child sexually abusive
material. Defendant’s minimum sentencing guidelines range was 57 to 95 months’ imprisonment
for producing child sexually abusive activity or material. However, the trial court sentenced
defendant to an upward departure sentence of 12 to 20 years’ imprisonment, as noted supra. This
appeal followed.
II. STANDARD OF REVIEW
On appeal, defendant challenges the departure sentence imposed for the producing child
sexually abusive activity of material conviction, arguing that it is disproportionate and therefore
unreasonable. We cannot agree.
We review a trial court’s sentence for an abuse of discretion. People v Lampe, 327 Mich
App 104, 125; 933 NW2d 314 (2019), quoting People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). A trial court abuses its discretion by failing to adhere to the principle of
proportionality when fashioning a sentence. Id. (citations omitted.) We review a trial court’s
factual finings at sentencing for clear error. Id. at 125-126. “Clear error exists when we are left
with a definite and firm conviction that a mistake was made.” People v Abbott, 330 Mich App
648, 654; 950 NW2d 478 (2018). When a sentence is disproportionate and therefore unreasonable,
remand for resentencing is required. Steanhouse, 500 Mich at 476.
III. ANALYSIS
The Michigan sentencing guidelines are advisory in nature, and therefore, when departing
from them, the trial court’s reasoning needs only to be reasonable. People v Lockridge, 498 Mich
358, 391-392; 870 NW2d 502 (2015). “[A] sentence is reasonable under Lockridge if it adheres
to the principle of proportionality . . . .” People v Walden, 319 Mich App 344, 351; 901 NW2d
142 (2017). A sentence adheres to the principle of proportionality if it reflects the seriousness of
the circumstances surrounding the offense and the offender. Steanhouse, 500 Mich at 474, citing
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), abrogated by MCL 777.1 et seq.,
readopted by Steanhouse, 500 Mich 473.
While it may be that the sentencing guidelines provide the “best ‘barometer’ of where on
the continuum from the least to the most threatening circumstances a given case falls[,]” People v
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Dixon-Bey, 321 Mich App 490, 530; 909 NW2d 458 (2017) (citation omitted), a sentence that
upwardly departs from the applicable minimum sentencing guidelines range may be more
proportionate to the circumstances surrounding the offense and the offender. “[R]elevant factors
for determining whether a departure sentence is more proportionate than a sentence within the
guidelines range . . . include (1) whether the guidelines accurately reflect the seriousness of the
crime; (2) factors not considered by the guidelines; and (3) factors considered by the guidelines
but given inadequate weight.” Id. at 525 (citations omitted). When imposing a departure sentence,
the trial court must justify the sentence imposed by explaining why it is more proportionate to the
offense and the offender than a sentence within the guidelines would have been. Id.
Defendant argues on appeal that when imposing sentences in this case, the trial court did
not sufficiently justify why the circumstances surrounding the offense and the offender warranted
an upwards departure from the applicable minimum sentencing guidelines range. When imposing
a departure sentence, the trial court articulated the following reasoning:
The Department of Corrections has determined through their—their COMPAS
scoring, which frankly it you as anyone—I have no idea what goes in that COMPAS
score, that’s something internal to the D-O-C, and without having benefit of—
looking at the factors and seeing how the risk level is—is calculated, I don’t—I
acknowledge the D-O-C says you’re low risk, I don’t have confidence that you’re
low risk. Why don’t I have confidence that you’re low risk? Well, I—I looked at
the letters that your loved ones sent on your behalf, who painted you in a very
positive light—as one would expect of your mother and—and coworker, and you
know, the others, but the conduct that you engaged in with—involving these two
children, nine and two is heinous conduct, it—it turns my stomach. And I think
anyone who were to read or to listen to your plea would conclude the same thing.
I’m also concerned when contemplating one aspect of—of your sentencing,
which is rehabilitation, whether that is something truly achievable. It does not
surprise me you have trustee status at the jail, you’re a good worker. That—that is
not inconsistent with what other individuals who have been committed (sic) of sex
offenses, you know, do. It’s very possible to lead what I would call a double life,
or to project an image that on the surface seems beyond reproach, when yet there
is a very disturbing and—and ugly side that nonetheless exists. I am concerned
when I think about public safety. Again, recognizing the D-O-C says you’re low
risk, but I hear blaming the codefendant, I’ve heard you say you’re sorry, but you
have never apologized to either of your two victims—
* * *
I certainly am mindful that today, [the victim’s mother], who has bravely
attended your sentencing and your codefendants sentencings once again has stood
up and given a very heartfelt plea on behalf of her nine year old, whom you violated.
And that to the Court suggests that, you know, there is a long road. Having heard
from the nine year old in one of your codefendant’s sentencings, I can tell you she
is strong, she is bright, and I have said she’s the bravest nine year old I have ever
come to know.
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* * *
So, you know, I—I also contemplate the—the other function of sentencing,
which is deterrence and the need to make an example so that others who may be
teetering for whatever reason—and frankly, I don’t buy into the fact that it was your
divorce and your relationship with one of your codefendants that caused you to
engage in this activity. Without a willingness, it wouldn’t have happened.
I am mindful that I did give [a codefendant] eight years for his offense on
the minimum, and that was because of very similar considerations, that in
comparing what the Department of Corrections and the guidelines looked like that
they were inadequate. I similarly find that they are inadequate in your situation for
all of the—the reasons that I have indicated. It would not be reasonable nor just
under the circumstances to impose a sentence within the guidelines range of fifty-
seven to ninety-five months on the minimum, and therefore as to count one,
sexual—child sexually abusive activity involving the two children, the Court’s
sentence is that you be sentenced to the Department of Corrections for a period of
twelve years on the minimum to twenty years, with credit for two hundred seven
days served, and you will serve that concurrently with counts two and three.
On the basis of the foregoing, we conclude that the trial court properly determined that the
sentencing guidelines in this case did not adequately account for the circumstances surrounding
the offense. The trial court properly considered the seriousness of defendant’s conduct, which
included the sexual assault and exploitation of two very young minor females. The trial court
further considered the effect on the victims, and the fact that defendant failed to take responsibility
for her role and apologize to the victim without making excuses for her behavior. Finally, the trial
court noted defendant’s willingness to participate in this type of activity with her codefendants;
that without defendant being a willing participant, it may not have occurred. Thus, we conclude
that the trial court did not abuse its discretion by imposing a sentence that upwardly departed from
the minimum sentencing guidelines range.
Affirmed.
/s/ Kathleen Jansen
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