People v. Benson , 200 Mich. App. 598 ( 1993 )

Shepherd, J.

Defendant was originally charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a jury trial, he was convicted of armed robbery and sentenced by the trial court to one hundred to two hundred years in prison. After this Court affirmed the conviction and sentence, 180 Mich App 433; 447 NW2d 755 (1989), the Supreme Court reversed in part the judgments of the trial court and the Court of Appeals and remanded for resentencing, 434 Mich 903 (1990). On remand, the trial court sentenced defendant to a prison term of fifty to one hundred years. Thereafter, a successor trial judge denied a motion for rehearing. Defendant again appeals his sentence. We vacate the sentence and remand for resentencing.

i

In People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990), the Supreme Court set forth the principle of proportionality, requiring sentences imposed by trial courts to be proportionate to the seriousness of the circumstances surrounding the offense and the offender. The Court, pp 653-654, stated:

The trial court appropriately exercises the discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination. [Emphasis in original.]

In determining whether a sentence is proportionate to the seriousness of the offense and the offender under the principle of proportionality, the Court in Milbourn, p 656, recommended the use of the sentencing guidelines:

The guidelines represent the actual sentencing practices of the judiciary, and we believe that the second edition of the sentencing guidelines is the best "barometer” of where on the continuum from the least to the most threatening circumstances a given case falls.

In reflecting actual sentencing practices, we note that the sentencing guidelines are nothing more than a description of what actually happens in seventy-five percent of the cases. As Mr. James McComb, a member of the Supreme Court guidelines staff, explained:

The first edition of the sentencing guidelines contains sentence recommendations that were based upon data collected during 1977 by the [Michigan Felony Sentencing Project]. To develop the sentence ranges found in the second edition, the variables as scored in the second edition were applied retrospectively, to the new data collected by the [Sentencing Guidelines Advisory Committee] from 1984 through 1987. In this way, it was possible to "fine-tune” the sentence recommendations so that they corresponded with actual sentencing practices.

Using data from over 50,000 actual cases the range of actual sentences, for each cell of each grid, was determined. Where possible, the ranges . were set so that they encompassed at least 75% of the actual sentences and that departures above and below would be of a similar magnitude. No attempt was made to make the recommended sentences more lenient or severe. Instead, the recommended ranges represent the current practice of the majority of the Michigan Circuit and Recorder’s Court judges. [McComb, An Overview of the Second Edition of the Michigan Sentencing Guidelines, 67 Mich B J 863, 866-867 (September, 1988).]

Thus, although the sentencing guidelines purport to give guidance to the trial courts on what an appropriate sentence ought to be, it is evident that the guidelines say nothing about the appropriateness of any given sentence, but merely reflect what judges have actually done in seventy-five percent of the cases. Within the guidelines’ range, sentences are presumptively neither excessively severe nor unfairly disparate. People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987).

A sentencing court is entitled to depart from the guidelines’ range whenever the recommended range is considered an inadequate reflection of the proportionate seriousness of the offense. People v Witcher, 192 Mich App 307, 308-309; 480 NW2d 636 (1991). Where a sentencing court departs from the guidelines’ range, it must articulate its reasons both on the record at sentencing and in the sentencing information report (sir). People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987). In Milbourn, pp 659-660, the Court noted:

Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality.

In order to implement the Milbourn proportionality test, this Court set forth a three-part test in People v Harris, 190 Mich App 652, 668-669; 476 NW2d 767 (1991):

1. If the sentence is to be within the guidelines, where on the guidelines range should the sentence fall?

2. What unique facts exist that are not already adequately reflected in the guidelines, and why do such facts justify any departure from the guidelines?

3. If there is to be a departure, what should be its magnitude and the justification for the specific departure imposed?

We should point out that Harris does not impose any new requirements other than those found in Milbourn, but merely provides a systematic method for arriving at a sentence in accordance with the Milbourn standards. As we said in Harris, p 669.

The inquiry that we impose here will enable the trial judge to comply with the mandate of Milbourn in a manner that reduces the risk of irrational sentencing that is either too low or too high for the given case.

We do not hold that the [Harris analysis] must be followed to the letter in every case. However, all of the factors mentioned in the analysis are contained in Milbourn and must, in some manner, be included in the trial judge’s articulation on the record of the reasons for the sentence.

ii

In this case, the guidelines’ range was calculated by the trial court to be ten to twenty-five years or life. The fifty-year minimum sentence imposed by the trial court was thus twice the maximum of the guidelines’ minimum. In exceeding the. guidelines’ recommended range, the trial court stated on the record and in the sir that the reasons for the upward departure were the "protection of society” and "punishment.”

In our view, the trial court failed to adequately articulate reasons for its departure from the recommended guidelines’ range. Milbourn, supra. It is evident that under the Milbourn/Harris analysis, the trial court is required to make reasoned sentencing decisions. Here, the trial court’s "reasons” for exceeding the guidelines are nothing more than boiler plate language that does not tell us anything about why this particular defendant is being sentenced to a prison term twice the maximum of the guidelines’ minimum. Given that the guidelines are based upon what happens in seventy-five percent of the cases of armed robbery, the question is what is there about this case that makes it worse than seventy-five percent of the cases? Although the trial court cited defendant’s lengthy criminal history, his lack of a consistent and reputable work history, his questionable drug use, and his disciplinary problems while in prison, it made no effort to tell us why this particular defendant has to receive a sentence greater than those received in seventy-five percent of the cases, and, specifically, why must it be an additional twenty-five years?

We do not wish to imply that the court must make a precise analysis of how this case compares to seventy-five percent of all similar cases. The seventy-five-percent figure is itself nothing more than a guideline. It tells the trial court that a sentence at the outer limits of the guidelines covers seventy-five percent of similar situations and that there may be a departure if the case at hand is substantially worse than the average case of a similar nature.

Moreover, we note that there is nothing in the trial court’s remarks on the record or in the sir to indicate that this case involves circumstances that are not adequately embodied within the variables used to score the guidelines. Milbourn, supra, pp 659-660. Thus, even if departure were appropriate in this case, there is nothing on the record to indicate why the extent of the departure should be so great. By taking refuge in the boiler plate language of "protection of society” and "punishment,” the trial court failed to shed any light on these matters, abdicating its judicial function that requires it to engage in reasoned decision making.

The problem becomes particularly acute when we take into account that the guidelines as originally calculated in this case allow for a minimum sentence of anywhere between ten and twenty-five years. The actual sentence, therefore, could be not twenty-five, but forty years greater than a sentence that is presumptively valid under the guidelines. There is nothing in the guidelines that tells us where along the continuum from zero to seventy-five percent of the cases this case falls. All that one can say is that in approximately seventy-five percent of similar cases, the trial courts imposed a minimum sentence somewhere between ten and twenty-five years. Under these circumstances, the wider the range, the less reliable the guidelines are as a barometer. However, that is an aspect of the guidelines that we as a Court of Appeals cannot address. All we can do is .insist that trial courts attempt through reasoned decision making to bring the cases before them within the minimally precise requirements of the guidelines.

III

Under normal circumstances, we would simply remand the case to the trial court for articulation of how the sentence satisfies the Milbourn/Harris standards and whether defendant would be entitled to resentencing under those standards. People v Martin, 440 Mich 868; 486 NW2d 734 (1992), and People v Herron, 440 Mich 868; 486 NW2d 734 (1992). Because defendant was sentenced twice by the same trial judge, because that trial judge failed to exercise properly his judicial function, and because the proceedings on remand from this Court will be before a successor judge, we believe that it is necessary to vacate the sentence and remand for resentencing.

In remanding we are not saying that a sentence of fifty to one hundred years is inappropriate in this case. Contrary to defendant’s claim, such a sentence does not violate the requirements of People v Moore, 432 Mich 311; 439 NW2d 684 (1989). See People v Martinez, 193 Mich App 377; 485 NW2d 124 (1992). All we are saying is that the trial court did not adequately justify the sentence imposed. If on remand the trial court chooses to depart from the guidelines, it should comply with Milbourn and Harris by articulating its reasons on the record.

This was a serious offense and defendant deserves a lengthy prison term. Nevertheless, the guidelines were adopted not to allow criminals to avoid punishment but to bring order and rationality to sentencing. A guidelines’ range that allows a minimum sentence of twenty-five years acknowledges the seriousness of the offense. We respectfully suggest that a twenty-five-year prison term is a long sentence and not a mere slap on the wrist. The guidelines further allow a court to depart from the twenty-five-year minimum upon the reasoned exercise of sound discretion. It is the failure of such a process in this case that constrains us to remand for resentencing again.

The task of the trial court at the first resentencing was to determine whether a departure from the guidelines was appropriate. Its analysis on this point was minimal. Then, it was to determine the precise magnitude of the departure. In that respect, its analysis was almost nonexistent. The trial court gave an additional twenty-five years because of little more than the fact that defendant is a bad man who committed a serious offense. If appellate review of sentencing has any meaning, the Court of Appeals must be told by trial courts just how bad they view the defendant to be and why the particular magnitude of the departure from the guidelines’ range is required. It is not our function to search the record looking for a reason to affirm or reverse. It is the function of the trial court to furnish us with all of its reasons in a manner that we can readily see the merits or lack of merits of the sentencing decision.

On remand, we further note that the trial court should respond to defendant’s objections regarding the presentence report. However, contrary to defendant’s claim, the trial court may consider defendant’s juvenile record in sentencing him as an adult. People v Smith, 437 Mich 293; 470 NW2d 70 (1991). Finally, the trial court may also consider reversed convictions in imposing the sentence. People v Butts, 144 Mich App 637, 641; 376 NW2d 176 (1985).

Sentence vacated and case remanded for resentencing. We do not retain jurisdiction.

Fitzgerald, J., concurred.