People v. Edgett , 220 Mich. App. 686 ( 1997 )

560 N.W.2d 360 (1996) 220 Mich. App. 686

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Scottie Joe EDGETT, Defendant-Appellant.

Docket No. 180885.

Court of Appeals of Michigan.

Submitted December 17, 1996, at Detroit. Decided December 27, 1996, at 9:30 a.m. Released for Publication March 18, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis LaBelle, Prosecuting Attorney, and Robert A. Cooney, Assistant Prosecuting Attorney, for people.

Mark G. Kowalczyk, Mt. Pleasant for defendant-appellant on appeal.

Before TAYLOR, P.J. and GRIBBS and R.D. GOTHAM,^[*] JJ.

TAYLOR, Presiding Judge.

Following a jury trial, defendant was convicted of carrying a concealed weapon (a double-edged dagger), M.C.L. § 750.227; M.S.A. § 28.424, and possessing a dangerous weapon (billy or bludgeon), M.C.L. § 750.224(1)(d); M.S.A. § 28.421(1)(d). Defendant subsequently pleaded guilty of being a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. Defendant was sentenced as an habitual offender to concurrent terms of 30 to 120 months in prison. Defendant appeals his sentences as of right. We affirm.

Defendant argues that his habitual offender sentences are disproportionate. The sentencing guidelines for the underlying offenses were zero to twelve months. As a third-time habitual offender, the court was authorized to double the authorized sentences for the crimes of which he was convicted. M.C.L. § 769.11; M.S.A. § 28.1083. Defendant notes that doubling the recommended guidelines' range produces an "enhanced guideline" range of zero to twenty-four months and argues that his thirty-month minimum sentences are disproportionate because they exceed those "enhanced guidelines." While acknowledging that the sentencing guidelines do not apply to habitual offender sentences, he argues that the trial court made the sentencing guidelines an issue in this case because it filled out a sentencing information report (SIR) departure form, explaining why it was departing from the sentencing guidelines, and did not list adequate reasons for departing from the guidelines.

A defendant who is found guilty by a jury, or in a bench trial, or who pleads guilty or nolo contendere, must thereafter be sentenced in accordance with the law by the court. Since March 1, 1984, the Michigan Supreme Court, through a series of administrative orders, and now MCR 6.425(D)(1), has required all circuit court and Recorder's Court judges to calculate a sentencing guidelines' range pursuant to the applicable Michigan Sentencing Guidelines for the minimum term of imprisonment for those offenses included in the guidelines. People v. Broden, 428 Mich. 343, 344-346, 408 N.W.2d 789 (1987). MCR 6.425(D)(1) states the court "must use the applicable sentencing guidelines when imposing a sentence for an offense that is included in the guidelines." While the sentencing court is not required to impose a minimum sentence within the guidelines' range, should the court impose a minimum sentence less than or greater than the guidelines' range, it must complete a section of the SIR labeled "departure reason."^[1] MCR 6.425(D)(1).

The reference to offenses "included in the guidelines" in MCR 6.425(D)(1) alerts the reader to the fact that certain offenses are not included in the guidelines. It is only those crimes listed on pages 11-22 of the Michigan Sentencing Guidelines (2d ed) that are presently covered by the guidelines. The crimes listed on these pages are all crimes that allow for indeterminate sentences, i.e., those sentences in which the trial court is authorized to impose a minimum sentence and a maximum sentence.

Indeed, the sentencing guidelines do not apply to a surprisingly large number of circumstances.^[2] They do not apply to offenses for which the Legislature has removed all discretion from the sentencing court, e.g., all offenses that require a nonparoleable term of life imprisonment,^[3] and flat sentences such as those legislatively required for possession of a firearm during the commission of a felony, i.e., felony-firearm convictions(two years for a first offense, five years for a second offense, and ten years for a third or subsequent offense). M.C.L. § 750.227b; M.S.A. § 28.424(2). There are also no sentencing guidelines for felony driving offenses, such as operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. § 257.625(7)(d); M.S.A. § 9.2325(7)(d), or for adultery,^[4] M.C.L. § 750.30; M.S.A. § 28.219; escape from prison, M.C.L. § 750.193; M.S.A. § 28.390; and perjury, M.C.L. § 750.422; M.S.A. § 28.664, as well as many offenses created by the Legislature since October 1, 1988 (when the second edition of the sentencing guidelines became effective), including first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3); child abuse, M.C.L. § 750.136b; M.S.A. § 28.331(2); carjacking, M.C.L. § 750.529a; M.S.A. § 28.797a; aggravated stalking, M.C.L. § 750.411i; M.S.A. § 28.643(9); and home invasion, M.C.L. § 750.110a; M.S.A. § 28.305(a). In addition, the sentencing guidelines do not apply to certain drug offenses where the Legislature requires a certain minimum sentence from which departures may be made only for substantial and compelling reasons. See People v. Perry, 216 Mich.App. 277, 549 N.W.2d 42 (1996). Further, they do not apply to probation violation sentences, although the guidelines will have been calculated for crimes that are covered by the guidelines at the earlier sentencing when the defendant was given a probationary sentence. See People v. Cotton, 209 Mich.App. 82, 83-84, 530 N.W.2d 495 (1995). Also, the sentencing guidelines do not apply to defendants whose sentences are enhanced under the subsequent offender provisions of the controlled substances act. People v. White, 208 Mich.App. 126, 135, 527 N.W.2d 34 (1994). Finally, and most applicable to the case at bar, the sentencing guidelines do not apply to habitual offender sentences. When sentencing an habitual offender, the trial court is required to complete the SIR (which requires calculation of the sentencing guidelines) for the underlying offense if the offense is included in the guidelines. Michigan Sentencing Guidelines (2d ed), p 1; People v. Zinn, 217 Mich.App. 340, 350, 551 N.W.2d 704 (1996). But the trial court is not required to fill out the SIR departure reason form when it sentences an habitual offender to a term of imprisonment in excess of the range indicated by the sentencing guidelines for the underlying offense. We note in this regard that the sentencing guidelines explicitly state that the guidelines do not apply to habitual offender sentences. Michigan Sentencing Guidelines (2d ed), pp 1, 6.

Nevertheless, as the jurisprudence surrounding the review of habitual offender sentences developed, this Court has looked to the guidelines' range for the underlying offense in reviewing claims that habitual offender sentences were disproportionate. See, e.g., People v. Finstrom, 186 Mich.App. 342,345-346,463 N.W.2d 272 (1990) (habitual offender sentence that exceeded guidelines for underlying offense by more than a factor of three was found disproportionate). That the authority to so evaluate habitual offender sentences was dubious can be seen in People v. Williams, 191 Mich.App. 685, 686-687, 479 N.W.2d 36(1991), People v. Oelberg, 197 Mich.App. 346, 347, 494 N.W.2d 869 (1992), People v. Cutchall, 200 Mich.App. 396, 409-410, 504 N.W.2d 666 (1993), People v. Derbeck, 202 Mich.App. 443, 448, 509 N.W.2d 534 (1993), and People v. Spivey, 202 Mich.App. 719, 728, 509 N.W.2d 908 (1993), where this Court acknowledged the fact that the guidelines do not apply to habitual offender sentences, but went on to state that the proportionality of an habitual offender sentence could be measured by comparing the guidelines' recommended range with the degree of sentence enhancement authorized by the particular habitual offender statute, thereby applying the guidelines by analogy.^[5] This led to the practice of calculating an "enhanced" guideline range that was then compared to the actual sentence that was imposed.

Other panels of this Court described the guidelines for the underlying offense as being helpful in reviewing the proportionality of habitual offender sentences. See, e.g., People v. Malkowski, 198 Mich.App. 610, 615, 499 N.W.2d 450 (1993) (useful reference point), People v. Odendahl, 200 Mich.App. 539, 540, 505 N.W.2d 16 (1993) (useful reference point), People v. Williams, 205 Mich.App. 229, 234, 517 N.W.2d 315 (1994) (the starting point for our review), People v. Bordeau, 206 Mich.App. 89, 94, 520 N.W.2d 374 (1994) (a tool to assist), People v. Martin, 209 Mich.App. 362, 364, 531 N.W.2d 755 (1995) (useful starting point or barometer), People v. Martinez (After Remand), 210 Mich.App. 199, 201, 532 N.W.2d 863 (1995) (helpful tool to be considered), and People v. Chandler, 211 Mich.App. 604, 615, 536 N.W.2d 799 (1995) (useful starting point).

This judicially created construct of utilizing the guidelines or the "enhanced guidelines" in reviewing the proportionality of habitual offender sentences was first questioned by the three justices who signed the lead opinion in People v. Cervantes, 448 Mich. 620, 625-626, 532 N.W.2d 831 (1995), where the Court stated:

There was no consideration of habitual offender sentencing in the creation of the existing sentencing guidelines; therefore, it would be both misleading and statistically invalid to attempt in any way to apply the existing guidelines to the sentencing of habitual offenders.

There was some misunderstanding of the import of the Cervantes holding by this Court in People v. Gatewood, 214 Mich.App. 211, 542 N.W.2d 605 (1995), which held that the lack of a Supreme Court majority opinion in Cervantes did not operate so as to overrule our past jurisprudence regarding guideline usage. The Supreme Court removed all doubt in People v. Gatewood, 450 Mich. 1025, 546 N.W.2d 252 (1996), where it entered a peremptory order^[6] vacating this Court's opinion and stated that "appellate review of habitual offender sentences using the sentencing guidelines is inappropriate."^[7] This Court subsequently held in People v. Gatewood (On Remand), 216 Mich.App. 559, 560, 550 N.W.2d 265 (1996), that "appellate review of habitual offender sentences using the sentencing guidelines in any fashion is inappropriate." (Emphasis supplied).

Accordingly, it is now settled that we are not to calculate an enhanced guideline range and we are not to consider the guidelines' range for the underlying offense. In fact, we are not to consider the underlying guidelines as a "barometer," "starting point," "useful reference point," or a "helpful tool" in determining whether defendant's habitual offender sentences are proportionate. All prior opinions of this Court that did so have been overruled to the extent that they did so. As stated in People v. Yeoman, 218 Mich.App. 406, 419, 554 N.W.2d 577 (1996), the proportionality of an habitual offender's sentence is still reviewed under the abuse of discretion standard, but the guidelines have "no bearing" with regard to whether an abuse has occurred. Further, given the fact that the guidelines are irrelevant in reviewing the proportionality of habitual offender sentences, logic dictates that a defendant sentenced as an habitual offender may not challenge on appeal the trial court's calculation of the guidelines for the underlying offense. Cf. People v. Strickland, 181 Mich.App. 344, 346, 448 N.W.2d 848 (1989). Whether the trial court properly calculated the guidelines' range for the underlying offense is of no moment given that this Court may not, in any case, consider the guidelines' range in determining the proportionality of an habitual offender sentence.

Carrying a concealed weapon and possessing a dangerous weapon are both felonies punishable by imprisonment for not more than five years. Pursuant to the two-thirds rule of People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972), defendant could have received sentences of 3 1/3 to 5 years for the underlying convictions. As a third-time habitual offender, defendant could have received sentences of 6 2/3 to 10 years. The thirty-month minimum sentences imposed in this case were substantially less than the statutory maximum the court could have imposed. Defendant's two prior felony convictions were of breaking and entering, M.C.L. § 750.110; M.S.A. § 28.305, and attempted breaking and entering, M.C.L. § 750.92; M.S.A. § 28.287. Defendant also had a prior probation violation and three prior misdemeanor convictions. Defendant had a double-edged knife attached with duct tape to the steering column of his vehicle and a billy club under the vehicle's seat. The court stated at sentencing that defendant lacked any remorse for his behavior and that defendant presented "clear, knowing, false" testimony at trial.^[8] The fact that the trial court unnecessarily filled out a SIR departure reason form does not somehow make the underlying guidelines an issue. Under the circumstances of this case, we find that the court did not abuse its discretion and that defendant's concurrent sentences of 30 to 120 months are proportionate to the offense and the offender, People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), and reflect the seriousness of the matter. People v. Houston, 448 Mich. 312, 320, 532 N.W.2d 508 (1995).

Affirmed.

NOTES

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

[1] In 1994, 8.1 percent of the sentences for covered offenses were below the guidelines' range and 3.8 percent were above the guidelines' range. See Girard, Michigan Prison Sentences: A Guide for Defense Attorneys (MAACS, 1996), p 25.

[2] In 1994, only about fifty-six percent of all criminal sentences were covered by the guidelines. See Michigan Prison Sentences, n 1 supra, p 21.

[3] Offenses that require a nonparoleable life sentence include: first-degree premeditated murder and first-degree felony murder, M.C.L.§ 750.316; M.S.A. § 28.548, certain drug offenses involving over 650 grams, treason, M.C.L. § 750.544; M.S.A. § 28.812, placing explosives with intent to destroy which causes injury to a person, M.C.L. § 750.207; M.S.A. § 28.404, and certain repeat drug offenses. See People v. Poole, 218 Mich.App. 702, 715, n 7, 555 N.W.2d 485 (1996).

[4] M.C.L. § 750.30; M.S.A. § 28.219 provides:

Any person who shall commit adultery shall be guilty of a felony; and when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment.

[5] Generally, second-time habitual offenders may have their sentences increased by 1½ times, M.C.L. § 769.10; M.S.A. § 28.1082, third-time habitual offenders may have their sentences doubled, M.C.L. § 769.11; M.S.A. § 28.1083, and fourth-time habitual offenders convicted of a felony whose maximum term is five years or more may be imprisoned for parolable life or for a lesser term while, if the conviction is for a felony whose maximum term is less than five years, the court may imprison the defendant for not more than fifteen years. M.C.L. § 769.12; M.S.A.§ 28.1084. Because the fourth-offense habitual offender statute does not provide any specific degree of sentence enhancement, Derbeck, supra at 448, 509 N.W.2d 534, stated that there is no way to evaluate the degree of enhancement allowed under the statute. As stated in the body of this opinion, the degree of enhancement is irrelevant in determining the proportionality of an habitual offender sentence.

[6] Supreme Court peremptory orders are binding precedent when they can be understood. See People v. Crall, 444 Mich. 463, 464, n. 8, 510 N.W.2d 182 (1993).

[7] We note that the Supreme Court rulings in Cervantes and Gatewood were made in the context of a defense appeal. We are not certain that the Supreme Court would apply the same rule in the context of a prosecution appeal that alleges an habitual offender sentence was disproportionately lenient because the sentence is less than the guidelines' range for the underlying offense. See People v. Brooks (On Remand), 203 Mich.App. 199, 511 N.W.2d 710 (1993), which the Supreme Court deprived of precedential effect at 445 Mich. 926, 521 N.W.2d 7 (1994). Perry, supra, lists several cases where a sentence was found to have been disproportionately lenient as a result of a prosecution appeal.

[8] This is an acceptable sentencing consideration. People v. Adams, 430 Mich. 679, 425 N.W.2d 437 (1988).