            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,                                     FOR PUBLICATION
                                                                     June 25, 2020
               Plaintiff-Appellee,

v                                                                    No. 344674
                                                                     Mecosta Circuit Court
DANIEL SCOTT CARLSON,                                                LC No. 17-009071-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.

RONAYNE KRAUSE, J. (concurring)

        I concur with the well-reasoned and thoughtful majority opinion of my colleagues, little of
which calls for repeating. I write separately only because I am troubled by the subtle distinctions
between basing a sentence on a defendant’s lack of remorse and basing a sentence on a defendant’s
refusal to admit guilt. On this record, I agree with the majority that the trial court’s sentence was
proper, but I respectfully believe the issue is less straightforward, and the applicable precedent
provides unclear guidance. For the reasons below, I concur.

        As the majority observes, a lack of remorse is a “legitimate consideration[] in determining
a sentence.” People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995), citing People v Wesley,
428 Mich 708; 411 NW2d 159 (1987). However, the sentencing “court cannot base its sentence
even in part on a defendant’s refusal to admit guilt.” People v Yennior, 399 Mich 892; 282 NW2d
920 (1977). I note that a majority of the Justices in Wesley found the distinction between
maintaining one’s innocence and displaying no remorse to be a fine one, if not illusory. See
Wesley, 428 Mich at 720-725 (BRICKLEY, J, joined by LEVIN, J), 726-727 (CAVANAGH, J, joined
by BOYLE, J). Criminal defendants have an absolute right to maintain their innocence
notwithstanding a conviction and irrespective of how much or how strong the evidence of their
guilt. It would be irrational to express remorse for something that a person contends they did not
do. Therefore, I share that concern.

       Nevertheless, merely referring to a defendant’s lack of remorse does not establish that a
sentencing court actually based its sentence on a defendant’s refusal to admit guilt. Wesley, 428
Mich at 713, 716, 718-719 (ARCHER, J, joined by GRIFFIN, J), 719 n 1 (BRICKLEY, J., joined by



                                                -1-
LEVIN, J), 726 (CAVANAGH, J, joined by BOYLE, J), 727-728 (RILEY, CJ). Importantly for this
case, it is entirely proper for a trial court to rely on a defendant’s refusal to acknowledge the
consequences of his or her admitted conduct, even if that admitted conduct would not be sufficient
for a conviction. Id. at 714-717 (ARCHER, J, joined by GRIFFIN, J), 725 (BRICKLEY, J., joined by
LEVIN, J). Furthermore, this Court has adopted the Wesley lead opinion’s approach for evaluating
whether a “ ‘sentence was likely to have been improperly influenced by the defendant’s persistence
in his innocence.’ ” People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007), quoting
Wesley, 428 Mich at 713 (ARCHER, J, joined by GRIFFIN, J) (emphasis added). Three factors to be
considered are the defendant’s maintenance of his innocence, whether the trial court attempted to
elicit an admission of guilt, and whether an admission of guilt appears likely to have resulted in a
more lenient sentence. Dobek, 274 Mich App at 104.

        Defendant’s attorney expressed remorse on defendant’s behalf during allocution. The trial
court noted, however, that it rang somewhat hollow: defendant expressed remorse that the victim’s
“life has had some disruption,” but he was equally, if not more, remorseful for the effect on his
family and his law firm. Furthermore, the trial court reasonably relied on the arrogant and
disrespectful attitude displayed by defendant during a telephone call from jail, despite defendant’s
knowledge that the call was being recorded. The trial court observed that defendant admitted he
made some “bad choices,” but nevertheless engaged in “victim bashing” by referring to the victim
as “evil” and mocking her. The trial court’s only other reference to defendant’s lack of “remorse”
was, in context, simply to contrast with defendant’s openly belittling and vengeful commentary on
the victim and what he sarcastically referred to as her “traumatic experience.” Finally, the trial
court properly made no attempt to procure an admission of guilt, nor did it suggest or imply that
defendant would have received a lesser sentence if he admitted guilt.

        I believe the distinction between refusing to show remorse and refusing to admit guilt may
be entirely nonexistent in a case turning solely on a credibility contest. However, no such concern
is present in this case. Defendant’s guilt was established in part by objective DNA evidence. Thus,
it would not have been unreasonable for the trial court to take defendant’s guilt as sufficiently
presumed to obviate any need “to tip-toe through the metaphysical distinctions required” to
distinguish a lack of remorse from an assertion of innocence. See Wesley, 428 Mich at 727
(CAVANAGH, J, joined by BOYLE, J). Ultimately, it is clear from the record, the transcript of the
sentencing when read in full, and the recording of defendant’s call from jail, that the trial court did
not base its sentence on defendant’s refusal to admit guilt. Rather, the trial court based its sentence
on defendant’s affirmatively-expressed arrogance, mockery, hostility, and refusal to take
meaningful responsibility for conduct that was either admitted or beyond any reasonable dispute.

         I am concerned by the test laid out in Dobek because I do not believe it accounts for the
practical reality that in many cases, especially those turning solely on a credibility contest, there is
literally no distinction between refusing to admit guilt and failing to show remorse. As noted, it
appears that a majority of the Justices in Wesley shared that concern. Nevertheless, affirmative
expressions of disdain, belligerence, or disregard go beyond merely failing to show remorse, so
they may be relied on by a sentencing court without implicating a defendant’s right to maintain his
or her innocence. Therefore, as this case illustrates, it is important to analyze a sentencing court’s
remarks for their substance and in context, not for catchwords. Thus, a sentencing court’s mere
reference to a defendant’s lack of remorse is not per se evidence that the court based its sentence
on the defendant’s maintenance of his or her innocence.


                                                  -2-
       For the reasons above, I concur with the majority and conclude that the trial court did not
improperly base defendant’s sentence on his maintenance of his innocence. I concur with the
majority’s opinion and affirmance in all other respects.

                                                            /s/ Amy Ronayne Krause




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