People v. Merriweather , 447 Mich. 799 ( 1994 )

Cavanagh, C.J.

(dissenting). I agree with the trial court and the Court of Appeals that the facts in this case warrant a substantial sentence. In fact, I believe that a third life sentence for the criminal sexual conduct convictions is justifiable. The defendant’s actions evidence a callous and vicious disregard for the sanctity of human life. I find his conduct appalling. Nevertheless, I must dissent.

I would hold that under the limited facts of this case, where the defendant has been sentenced to two valid life sentences on two separate but related convictions, the only possible rationale for sentencing the defendant to sixty to one hundred twenty years for two other convictions was to effectively prevent the parole board from assuming jurisdiction over the defendant pursuant to MCL 791.234(4); MSA 28.2304(4). It is an abuse of a sentencing judge’s discretion to deliberately sentence a defendant for the sole purpose of depriving the parole board of its legislatively provided jurisdiction. Having found the defendant’s sentence for the criminal sexual conduct convictions invalid as an abuse of discretion, I would not reach the issue of proportionality.

The problem at the root of this case is not new. It arises because of the discrepancy in parole consideration of straight life sentences and indeterminate sentences for "Proposal b”¹ crimes. The so-called "lifer law,” MCL 791.234(4); MSA 28.2304(4), provides that a prisoner serving a life sentence for a crime² committed before October 1, 1992, is subject to the jurisdiction of the parole board after serving ten calendar years of the sentence. On the other hand, MCL 791.233b; MSA 28.2303(3), provides that prisoners convicted of an enumerated offense and serving an indeterminate sentence³ shall not be eligible for parole until that prisoner has served his minimum term less available disciplinary credits. Criminal sexual conduct in the first degree is an enumerated offense,⁴ as are assault with intent to rob while armed,⁵ assault with intent to murder,⁶ and breaking and entering an occupied dwelling.⁷

The seeming paradox these statutes create is that a person serving a life sentence may come under the jurisdiction of the parole board more quickly than a person serving an indeterminate sentence for an enumerated offense with a long minimum term. However, being subject to the jurisdiction of the parole board and actually being paroled are two distinctly different prospects.⁸ New prisoners serving parolable life sentences are ever paroled.⁹

A parolable life sentence is a more serious penalty than an indeterminate term of years.¹⁰ As statutorily established, no prisoner serving a life term may be paroled if the sentencing judge or the judge’s successor objects.¹¹ In contrast, parole eligibility for a prisoner serving an indeterminate sentence is not contingent on the approval of the sentencing judge.¹² Moreover, at the expiration of the maximum sentence, assuming the prisoner is still alive, neither the sentencing judge nor the parole board can prevent the prisoner’s release.

This Court has long recognized the legislatively created role of the parole board. While examining the indeterminate sentencing statute of 1903, we remarked:

[T]he trial judge, by prescribing a very low maximum, may totally deprive the governor, pardon board, and board of control of the opportunity to exercise the discretion which the statute intended to give them. [In re Campbell, 138 Mich 597, 599; 101 NW 826 (1904).]

Thus, even in 1904 this Court construed the indeterminate sentencing act in such a way so as to avoid usurping legislatively vested jurisdiction.

In People v Moore, 432 Mich 311; 439 NW2d 684 (1989), the Court held that it is an abuse of discretion to sentence a person in a manner that is intended to effectively prevent the exercise of the parole board’s jurisdiction.

It is an abuse of discretion, however, to enter an order on the day of sentencing that effectively forecloses all future exercise of such Legislatively provided discretion by either the Parole Board or the judge’s successor. No one can see the future with such clarity. [Moore at 326.]

Recent legislative revisions have altered both the authority of the parole board and the mechanics used in actually granting a parole. As the majority points out, the cumulative effect of these revisions is to limit the jurisdiction of the parole board and to circumscribe its discretion. It is evident, however, that these revisions are how the Legislature chose to deal with the perceived problems of the parole process. The Legislature did not eliminate parole eligibility, nor did it provide for nonparolable life sentences for the crimes defendant stands convicted of. Therefore, imposition of an effectively nonparolable life sentence on this defendant is not permissible.

In this, as in all acts of sentencing, the discretion of the sentencing judge must be exercised within the parameters established by the Legislature. We so held in Campbell, Moore, and Milbourn. "The discretion conferred by the Legislature does not extend to exercises thereof which violate legislative intent; such exercises are, therefore, an abuse of discretion.” Milbourn at 654. Sentencing a defendant with the sole intent of effectively preventing the jurisdiction of the parole board is contrary to the legislative scheme and, accordingly, is an abuse of a sentencing court’s discretion.

When this defendant’s sentences for criminal sexual conduct are viewed in conjunction with the two life sentences imposed for convictions arising out of the very same criminal transaction, we cannot help but conclude that the sentences for the criminal sexual conduct convictions were specifically intended to effectively prevent the parole board from obtaining jurisdiction over the defendant.¹³ In this respect this case is distinguishable from People v Harden, 434 Mich 196, 202; 454 NW2d 371 (1990), in which this Court held that each sentence for a term of years that is to be served consecutively must be examined independently to determine if Moore has been complied with.

Harden involved a prisoner who walked away from a Department of Corrections farm, robbed and murdered two people, and then returned to the farm. Because the defendant was already serving two terms for armed robbery, the sentences for his most recent crime spree were to be served consecutively to his prior sentences. This was true despite the fact that the combined total of his consecutive sentences exceeded his natural life span.

The essence of consecutive sentencing is that two or more sentences, each not exceeding the maximum punishment allowable by law, are placed end to end. . . . [T]wo or more consecutive sentences, each of which is less than life, may have the cumulative effect of assuring that the remainder of the defendant’s life will be spent in prison. Such an outcome does not conñict with the express will of the Legislature. [Id. at 202. Emphasis added.]

The determinative factor in Harden was that the consecutive sentencing statute was specifically intended to make otherwise valid sentences run consecutively as a deterrent to further criminal activity. Therefore, this Court held that as long as each sentence, when viewed independently, satisfies Moore, it does not violate Moore when imposed to run consecutively.

Harden thus stands in stark contrast to the case at bar. In this case, the defendant has been sentenced to two valid life sentences for two separate convictions, and the only possible rationale for sentencing the defendant to 60 to 120 years for the other related convictions was to effectively prevent the parole board from assuming jurisdiction over the defendant. Thus, whereas the independently valid sentences in Harden furthered the legislative intent, here they were specifically intended to frustrate it. We cannot sanction a sentence so clearly designed to deprive the parole board of the jurisdiction the Legislature has vested in it.

My decision in this case does not mean that any sentence over ten or fifteen years is an abuse of discretion. To the contrary, when faced with facts as presented in a case such as this, a lengthy sentence is warranted. I merely believe that it is an abuse of discretion to sentence a defendant for the sole purpose of depriving the parole board of its legislatively prescribed jurisdiction. Given the obviousness of the trial court’s motives in this case, it is unnecessary to specifically delineate the exact boundaries of today’s holding. Suffice it to say that this case is extreme; accordingly, this opinion is limited.

In conclusion, I reiterate, the defendant’s crime in this case was exceptionally hideous and atrocious. It is, however, by legislative decree, a parolable offense. Thus, if the purpose of this sentence was to avoid the possibility of parole and ensure that the defendant dies in prison, it is an abuse of discretion. A life term is within the guidelines’ range applicable in this case, and, on the basis of the information before this Court, would have been a well-deserved sentence.

Accordingly, I would affirm the decision of the Court of Appeals.

Levin and Brickley, JJ., concurred with Cavanagh, C.J.

1 Initiated law of 1978, approved at the general election of November 7, 1978.

2 Other than first-degree murder or certain qualifying controlled substance offenses.

3 In People v Johnson, 421 Mich 494, 498; 364 NW2d 654 (1984), we held that Proposal b applies only to indeterminate sentences and that prisoners serving parolable life sentences remain subject to the requirements of MCL 791.234(4); MSA 28.2304(4).

4 MCL 791.233b(w); MSA 28.2303(3)(w).

5 MCL 791.233b(d); MSA 28.2303(3)(d).

6 Id.

7 MCL 791.233b(f); MSA 28.2303(3)(f).

8 This point is made clear in the paraphrased testimony of Parole Board Chairman William J. Hudson, as recounted in People v Hurst (After Remand), 169 Mich App 160, 163-164; 425 NW2d 752 (1988):

When asked to compare this example [i.e., a person serving a long indeterminate sentence] to that of someone given a life sentence for a Proposal b violation, Hudson testified that he did not think a person given a life sentence under these circumstances was ever "eligible” for parole in the same manner as a person given an indeterminate sentence. Falling within the jurisdiction of the parole board does not translate to "eligibility” unless all conditions are fulfilled. . . . Hudson emphasized that, so long as the sentencing judge or successor judge objects, the person can never be released on parole.

9 From 1986 through 1990, only seven prisoners serving parolable life terms were in fact paroled. In 1990, only two of the 975 eligible "lifers” were paroled. Defender Sentencing Book (1994 ed), p 95.

10 People v Moore, 432 Mich 311, 317-318; 439 NW2d 684 (1989).

11 MCL 791.234(4)(b); MSA 28.2304(4)(b).

12 See MCL 791.235(1); MSA 28.2305(1).

13 The case at bar is almost indistinguishable from People v McAlister, 203 Mich App 495; 513 NW2d 431 (1994). There, the defendant appealed his convictions by a jury of felony murder, kidnapping, assault with intent to commit murder, and his sentences of 65 to 120 years for the assault convictions, which he received in addition to mandatory life for the murder conviction and life imprisonment for the kidnapping convictions. That Court held that the trial court intended that the defendant’s sentence of a term of years to be a life sentence from which no release would be possible. Accordingly, the case was remanded for resentencing with respect to the assault convictions.