People v. Coulter ( 1994 )

205 Mich. App. 453 (1994) 517 N.W.2d 827

PEOPLE
v.
COULTER

Docket No. 158261.

Michigan Court of Appeals.

Submitted February 1, 1994, at Detroit. Decided June 6, 1994, at 9:25 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Research, Training, and Appeals, and Morris R. Kent, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Sherrie P. Guess), for the defendant on appeal.

Before: WAHLS, P.J., and REILLY and R.M. DANIELS,^[*] JJ.

AFTER REMAND

REILLY, J.

Defendant pleaded guilty of armed robbery, MCL 750.529; MSA 28.797, in exchange for dismissal of a charge of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Genesee Circuit Judge Robert Ransom originally sentenced defendant to a prison term of eight to twenty years. This Court, MICHAEL J. KELLY, P.J., and DOCTOROFF and CAVANAGH, JJ., in an unpublished memorandum opinion, decided October 18, 1991 (Docket No. 127477), vacated the sentence and remanded to the trial court for resentencing in light of People v Milbourn, 435 Mich. 630, 656; 461 NW2d 1 (1990). Defendant was resentenced to a prison term of seven to twenty years, and again appeals as of right. We affirm.

This case arises from a robbery that occurred on October 21, 1989. Defendant waited in his car as two of his friends robbed a gas station at gunpoint in Flint Township, Michigan. In a separate, unrelated case,^[1] defendant pleaded guilty of armed robbery in exchange for dismissal of two counts of assault with intent to murder and three counts of possession of a firearm during the commission of a felony, and was sentenced by Genesee Circuit Judge Valdemar Washington to a prison term of six to twenty years' imprisonment.

In this case, the sentencing guidelines' recommended minimum sentence was from eighteen to sixty months. At resentencing, the court explained that it was departing from the guidelines because

[t]he factors that are not considered in the Guideline range are the plea bargain which resulted in the dismissal of some six charges and a pattern of conduct that involved multiple life-threatening situations with the presence of a gun.

As additional reasons for departure, the court also indicated on the departure form that a structured environment was necessary beyond the guideline period for rehabilitation and the protection of the community.

On appeal, defendant contends that the court improperly exceeded the sentencing guidelines' recommendation. We disagree.

Sentences must be proportionate to the seriousness of the circumstances surrounding the offense and the offender. Milbourn, supra. The sentencing guidelines are intended to assist the court in assessing the appropriate sentence and to promote statewide consistency in sentencing. People v Stone, 195 Mich. App. 600, 608; 491 NW2d 628 (1992). Departures from the sentencing guidelines' range are suspect and subject to careful scrutiny on appeal. Id. Departures are appropriate only where the guidelines do not adequately account for important factors legitimately considered at sentencing, or where the recommended range is disproportionate to the seriousness of the offense. Milbourn, supra at 657, 661; People v Rosales, 202 Mich. App. 47, 49; 507 NW2d 776 (1993).

This Court finds the reasons given by the sentencing court for departing from the guidelines adequate to justify the departure. A sentencing court is allowed to consider the facts underlying uncharged offenses, pending charges, and acquittals. People v Ewing (After Remand), 435 Mich. 443, 446 (opinion by BRICKLEY, J.), 473 (opinion by BOYLE, J.); 458 NW2d 880 (1990); People v Parr, 197 Mich. App. 41, 46; 494 NW2d 768 (1992). Further, this Court has recognized that a sentencing court may consider the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing. People v Brzezinski (After Remand), 196 Mich. App. 253, 256; 492 NW2d 781 (1992).

We see no reason why a sentencing court in a subsequent case may not also consider the uncharged offenses. None of the cases cited above suggest that uncharged criminal acts, or criminal acts that are the subject of dismissed charges, once considered by a sentencing court, may not be considered again at a subsequent sentencing provided the defendant is given an opportunity to test the accuracy of the factual allegations.

If the rationale of the dissent is carried to its logical conclusion, a sentencing court is precluded from taking into account prior criminal acts that previously have been considered by a prior sentencing court. We believe this conclusion is contrary to the intent of Ewing, supra at 446 (opinion by BRICKLEY, J.), and 473 (opinion by BOYLE, J.).

Affirmed.

R.M. DANIELS, J., concurred.

WAHLS, P.J. (dissenting).

I respectfully dissent. In this case, defendant pleaded guilty of armed robbery in exchange for dismissal of a charge of possessing a firearm during the commission of a felony. In a separate case before another judge, defendant pleaded guilty of armed robbery in exchange for dismissal of two counts of assault with intent to murder and three counts of felony-firearm. Notably, the presentence information report prepared in this case contained no facts regarding defendant's actions in the separate case, and, therefore, the sentencing court was not apprised of any particular acts committed by defendant underlying the dismissed charges. I do not believe that People v Ewing (After Remand), 435 Mich. 443, 446 (opinion by BRICKLEY, J.), 473 (opinion by BOYLE, J.); 458 NW2d 880 (1990), permits the sentencing judge in this case to exceed the guidelines solely because defendant entered a plea bargain that resulted in the dismissal of five (not six as asserted by the judge) charges in an unrelated case before another judge. My concern is that the court departed from the guidelines because the charges were dismissed and, essentially, penalized defendant for receiving the benefit of his plea bargain. I find this to be not only reprehensible, but also impermissible under each plurality opinion in Ewing.

Moreover, the trial court's general conclusory statement that defendant was engaged in "a pattern of conduct that involved multiple life-threatening situations with the presence of a gun" was not supported by the record. Although armed robbery is a serious offense typically involving threats to the victims' lives, there is no evidence that defendant himself threatened anyone's life in either armed robbery case. Further, the use of a gun is a factor accounted for under Offense Variable 1, "Aggravated Use of Weapon." Finally, the additional reasons for departure, rehabilitation and the protection of society, are nothing more than "boiler plate language" that does not explain why this particular defendant should receive a sentence greater than the guidelines' recommended range. I find the additional reasons asserted by the sentencing court are also not adequate to justify the departure.

Accordingly, I believe that defendant's sentence violates the principle of proportionality because the sentencing court failed to articulate adequate reasons to justify the departure from the guidelines' recommendation. I, therefore, would vacate defendant's sentence and remand for resentencing by a different judge.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Defendant and his friends also robbed another establishment on October 20, 1989.