Wayne County Prosecutor v. Recorder's Court Judge , 164 Mich. App. 740 ( 1987 )

164 Mich. App. 740 (1987) 417 N.W.2d 594

WAYNE COUNTY PROSECUTOR
v.
RECORDER'S COURT JUDGE

Docket No. 88363.

Michigan Court of Appeals.

Decided December 8, 1987.

John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for plaintiff.

Angela R. Sims, for Dana Jenkins.

Before: WAHLS, P.J., and SAWYER and C.W. SIMON,^[*] JJ.

SAWYER, J.

On March 12, 1985, Dana Jenkins and his codefendant, Orrin Cuthbertson, pled guilty to 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). Jenkins and Cuthbertson were sentenced in a joint hearing in Detroit Recorder's Court, Dalton A. Roberson, J., on April 4, 1985. Jenkins was sentenced to a term of four and one-half to fifteen years for the armed robbery and a consecutive two-year term for felony firearm. Cuthbertson was sentenced to a term of two to ten years for the armed robbery and, naturally, to the consecutive two-year term for felony firearm.

On July 12, 1985, Jenkins filed a motion for resentencing on the ground that he had received a greater sentence than his codefendant. On September 20, 1985, Judge Roberson granted Jenkins' motion on the basis that the judge could not explain the differences between the sentences imposed on the two men, even after reviewing the presentence reports at the motion hearing. Both sentences had been within the sentencing guidelines, with Jenkins receiving a higher scoring on Offense Variable 7 (taking advantage of a disparity between offender and the victim). Judge Roberson then proceeded to resentence Jenkins to a term of two to ten years on the armed robbery conviction. The felony firearm sentence was unchanged.

Thereafter, the prosecutor filed a complaint for superintending control in this Court on the basis that Judge Roberson erred in vacating a lawfully imposed sentence and that he was without authority to resentence Jenkins. In an unpublished order, we directed the parties to proceed to a full hearing on the merits.

Judge Roberson granted Jenkins' motion for resentencing because he could not explain why he sentenced Jenkins to a harsher term than that to which he had sentenced Cuthbertson. In the instant action, it is argued that the reason Judge Roberson resentenced Jenkins was because he believed he had failed to meet the articulation requirements imposed by People v Coles, 417 Mich. 523; 339 NW2d 440 (1983), at the original sentencing. Regardless of the reasoning applied by Judge Roberson, we agree with plaintiff that the trial court was without authority to resentence Jenkins.

A trial court is without authority to resentence a defendant where the sentence originally imposed is valid. To do so would infringe upon the commutation powers vested in the Governor. People v Whalen, 412 Mich. 166, 169; 312 NW2d 638 (1981). Looking to Judge Roberson's explanation of why he granted the motion for resentencing, we see that he granted the motion based upon his inability to explain the disparity in the sentences given to the two codefendants. However, mere disparity in the sentences imposed on two codefendants does not per se invalidate either sentence. People v Bisogni, 132 Mich. App. 244; 347 NW2d 739 (1984). See also People v Foreman, 161 Mich. App. 14, 27; 410 NW2d 289 (1987) (imposition of the same sentence on two codefendants is not an abuse of discretion). Thus, the fact that Jenkins received a lengthier sentence than Cuthbertson does not render Jenkins' sentence invalid and, therefore, does not provide a basis for resentencing.

We also reject the contention that resentencing was required under the articulation requirements of Coles, supra.^[1] First, we are not convinced that the appropriate remedy for a failure to articulate under Coles is resentencing. Rather, the usual remedy for a failure to articulate is a remand to the trial court for an articulation of the reasons for imposing the sentence. See, e.g., People v Broden, 428 Mich. 343; 408 NW2d 789 (1987). This is consistent with the ruling in Coles, which provides for resentencing when the trial court abuses its discretion by imposing a sentence which shocks the conscience of the appellate court, but which imposed no such remedy for the failure to articulate. Indeed, the reason for the articulation requirement is to aid the appellate court in reviewing the sentence to determine whether the sentence imposed constitutes an abuse of the trial court's discretion. Coles, supra at 549. Thus, where a trial court fails to articulate the reasons for the sentence, it is necessary to remand the matter to the trial court for such an articulation before the appellate court can review the sentence under Coles. There is no need to order an immediate resentencing for the mere failure to articulate.

The instant case does present an interesting question as to what path an appellate court should take where the trial court failed to articulate the reasons for the sentence at sentencing and, thereafter, is unable to articulate the reason due to a failure of memory. For reasons to be discussed below, we do not believe it necessary to resolve that question in the instant case. However, we would comment that, even under such a scenario, resentencing would not necessarily be required. Rather, the appellate court would have to proceed to review the sentence without an articulation as to the reasons for the sentence and, therefore, the appellate court would presumably be more likely to find that a particularly harsh sentence shocked its conscience since the trial court had failed to provide a reason for that harsh sentence.^[2]

However, it is presumptuous for a trial court to decide that the Court of Appeals or the Supreme Court would require it to resentence a defendant because the sentence constitutes an abuse of discretion merely because the trial court is no longer able to recall the reasons for the sentence imposed. The determination of whether a sentence constitutes an abuse of discretion was vested by the Supreme Court in the appellate courts. Coles, supra at 550. There is nothing in Coles which suggests that the trial courts of this state have any authority to review their sentences absent a direction to do so by this Court or the Supreme Court in a particular case. While there are certain errors in the sentencing procedure which may, and in many cases must, be raised in the trial court, we do not believe that a Coles review should begin in the trial court. To do so would be to ignore the Supreme Court's ruling in Whalen, supra.

In any event, we also believe that the argument that Judge Roberson failed to properly articulate the reasons at the original sentencing hearing for the original sentence imposed as required by Coles, supra, is incorrect. At the original sentencing proceeding, Judge Roberson did sentence both Jenkins and Cuthbertson without much comment. However, when defense counsel inquired into the reasons why Jenkins received a lengthier sentence than Cuthbertson, Judge Roberson noted that he was sentencing in accordance with the sentencing guidelines which had recommended a higher minimum sentence for Jenkins than for Cuthbertson. In fact, both Jenkins and Cuthbertson received sentences within the limits set forth in the guidelines. The Supreme Court has recently ruled that the statement by a sentencing judge that he is imposing a sentence in accordance with the guidelines sufficiently satisfies the Coles articulation-of-reasons requirement. Broden, supra at 354. Accordingly, Judge Roberson's statement at the original sentencing proceeding that he was sentencing both Jenkins and Cuthbertson in accordance with the guidelines and that that explained the reasons for the different sentences sufficiently satisfied the articulation requirement of Coles. Therefore, even if resentencing were an appropriate remedy for a failure to articulate, no such remedy is necessary here since the articulation requirement was satisfied.

Finally, there remains the argument on appeal that resentencing was required because Judge Roberson relied upon a misscored sentencing information report at the time of the original sentencing of Jenkins. First, we note that, while the issue of the misscoring of the SIR was apparently raised during the motion for resentencing, it is not entirely clear to us that that was the basis for Judge Roberson's granting of the motion for resentencing. However, even assuming that we can accept the proposition that Judge Roberson was granting the motion for resentencing because he could not recall the rationale for imposing different sentences and could not recall the reason for scoring Jenkins' SIR higher than Cuthbertson's SIR, we do not believe that it was appropriate for Judge Roberson to reconsider the scoring of the SIR.

In the recent decision of People v Walker, 428 Mich. 261; 407 NW2d 367 (1987), the Supreme Court established the requirements for preserving the issue of a misscoring of a sentencing information report. Specifically, the Supreme Court ruled that it is necessary for the defendant to bring the misscoring to the attention of the trial court at sentencing, by properly filing a motion within the time period for a motion for a new trial or by a timely filed motion for remand in this Court. Id. at 262. In the case at bar, Jenkins was originally sentenced on April 14, 1985, and first raised the issue of the scoring of the SIR in his July 12, 1985, motion for resentencing. Thus, the sentencing guidelines issue was first raised ninety-eight days after sentence was imposed. A motion for new trial must be made within twenty-one days after the entry of judgment. MCR 2.611(B). Therefore, Jenkins did not timely raise the issue of the scoring of the SIR.^[3] Accordingly, the issue of the proper scoring of the SIR was not properly before the trial court for consideration at the motion for resentencing.

For the above-stated reasons, we conclude that Judge Roberson lacked any authority to resentence Jenkins. Jenkins was sentenced within the recommendation of the sentencing guidelines and Judge Roberson sufficiently articulated the reasons for the sentence by reference to the guidelines. Moreover, any error in the scoring of the SIR was waived by Jenkins by his failure to timely raise that issue. Since the sentence imposed was not invalid, there was no basis for the granting of the motion for resentencing.

Since there was no basis for granting the motion for resentencing, Judge Roberson exceeded his authority in doing so. Accordingly, an order of superintending control shall issue. The order granting resentencing and the new judgment of sentence shall be vacated and the original sentence imposed upon Jenkins shall be reinstated. Judge Roberson is directed to enter the appropriate orders. No costs, a public question being involved.

M.H. WAHLS, P.J., concurs in the result only.

NOTES

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

[1] We are not certain that Judge Roberson based his ruling at the resentencing hearing on the basis of a failure to comply with the articulation requirement. However, on appeal it is urged that that was part of the "failure to remember the rationale for the sentence" reasoning in the bench opinion. In any event, we will analyze the issue.

[2] Indeed, where the sentence is rather harsh, which we would define as a sentence which significantly departs from the sentencing guidelines, the sentencing judge's inability to recall the reasons for imposing such a harsh sentence would lead one to believe that the sentence was an abuse of discretion. That is, if the nature of the offense and the circumstances of the offender are so insignificant that they do not stand out later in the sentencing judge's mind, it would seem difficult to rationalize why such a sentence was imposed.

[3] Jenkins does, of course, have the remaining avenue of filing a timely motion for remand in this Court. However, such a motion would have to be made in Jenkins' own appeal, not in this action for superintending control. In any event, such an action does not grant authority to the trial court to reexamine its sentence until and unless the trial court is directed to do so in such a remand from this Court.