People v. Fisher , 176 Mich. App. 316 ( 1989 )

176 Mich. App. 316 (1989) 439 N.W.2d 343

PEOPLE
v.
FISHER

Docket No. 111583.

Michigan Court of Appeals.

Decided April 3, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, G. Michael Hocking, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the people.

Donald L. Correll, for defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and DOCTOROFF and CYNAR, JJ.

AFTER REMAND

MICHAEL J. KELLY, P.J.

This case was previously remanded for a resentencing. People v Fisher, 166 Mich. App. 699, 715; 420 NW2d 858 (1988). At the original sentencing, the circuit court sentenced defendant to forty to sixty years in prison, far beyond sentencing guidelines which recommended a minimum sentence range of seven to sixteen years. We remanded the case for resentencing to require the sentencing judge to state on the record his specific explanations for this considerable departure. On remand, the circuit judge again sentenced defendant to forty to sixty years in prison. Defendant has moved this Court for peremptory reversal of his sentence. He also asks that we remand this case for resentencing before a different judge. We hereby grant defendant's motion. We set aside his sentence and again remand defendant's case for resentencing, this time before a different circuit judge.

On remand, the sentencing judge merely reread part of the original sentencing transcript and "reaffirmed" defendant's original sentence of forty to sixty years. Our review of the transcript indicates that the sentencing court adopted the prosecutor's recommended sentence of forty to sixty years. The court recited the following justification for this severe sentence:

The note I made to myself before coming to court was that the defendant should either be sentenced for life or for a period of years whereby he would be incarcerated beyond the age of violence. That age normally that we look to where we find extremely seldom violent acts of this kind would be about 60 years of age, or somewhere in that range.

The defendant is 27 years old. In order for society to have some degree of assurance that the defendant would not do a like act under like circumstances, the defendant would have to be put in for a minimum of 33 years. That would get him to age 60. Forty years would get him to age 67.

This rationale is totally inappropriate, and derogates the bases for sentence reform which underlie the promulgation of the sentencing guidelines. The purpose of the sentencing guidelines is to ensure that criminal sentences are determined according to a consistent set of legally relevant factors which should be assigned equitable importance to all offenders. People v Coles, 417 Mich. 523, 548, n 31; 339 NW2d 440 (1983). The sentencing court's reasoning was antithetical to this purpose. These were not proper departure reasons under People v Fleming, 428 Mich. 408, 428-429; 410 NW2d 266 (1987). The trial court, in imposing defendant's sentence, abused its discretion to the extent that the sentence shocks our judicial conscience. Defendant must be resentenced. Coles, p 550. We therefore remand defendant's case for resentencing before a different circuit judge.

Remanded for resentencing consistent with this opinion.