People v. Frank , 155 Mich. App. 789 ( 1986 )

Per Curiam.

On November 18, 1985, defendant pled guilty to two charges of third-degree criminal sexual conduct and one charge of second-degree esc. He received concurrent sentences of from five to fifteen years in prison for each conviction.

On appeal, defendant raises two sentencing issues. First, defendant argues that he could have been sentenced to a "straight jail term” and that therefore a statement in the presentence report (psr) that the two third-degree esc convictions required "mandatory prison sentences” was inaccurate. Since the psr allegedly contained inaccurate information, defendant argues that he is entitled to resentencing.

As support for his position, defendant relies upon People v Blythe, 417 Mich 430; 339 NW2d 399 (1983). Defendant asserts that Blythe stands for the proposition that the offenses listed in MCL 771.1(1); MSA 28.1131(1) are not subject to mandatory prison terms even though the provision prohibits probation for such offenses. While there is language in Blythe that nonaggravated armed robbery, a nonprobational offense, does not require a mandatory minimum, this language must be read in context. Blythe rejected the view of People v Harper, 83 Mich App 390; 269 NW2d 470 (1978), lv den 406 Mich 1021 (1979), and People v West, 113 Mich App 1; 317 NW2d 261 (1982), that the language in the armed robbery statute, MCL 750.529; MSA 28.797, "any term of years” required a mandatory minimum prison term of at least a year and a day. In rejecting that view, the Court found that a six-month minimum prison term was acceptable. However, Blythe cannot be interpreted as holding that no mandatory prison sentence was required. Such a construction would render meaningless the language in MCL 771.1(1); MSA 28.1131(1) which prohibits probation for third-degree esc convictions.

Defendant’s argument that he could have been sentenced to "straight time” in the county jail is also without merit. Under MCL 769.8; MSA 28.1080, a maximum sentence of fifteen years was required. As long as the maximum sentence is at least a year and a day, incarceration must be in prison, regardless of the sentence minimum. Blythe, supra, p 437.

Thus, the statement in the psr that defendant’s two third-degree esc convictions required "mandatory prison sentences” was accurate.

Second, defendant argues that the sentences imposed should shock this Court’s conscience. The sentencing guidelines recommended minimum sentences of from three to five years. Defendant’s minimum sentences fell within this range and therefore are not conscience-shocking as a matter of law. People v Murray, 147 Mich App 227, 232; 383 NW2d 613 (1985), lv gtd 425 Mich 871 (1986). However, see People v Broden, 147 Mich App 470; 382 NW2d 799 (1985), lv gtd 425 Mich 871 (1986).

Affirmed.