People v. Cervantes , 448 Mich. 620 ( 1995 )

Riley, J.

In this case, we are called upon to determine whether a sentence imposed on an habitual offender, which exceeds the established sentencing guidelines limit, constitutes an abuse of discretion. Specifically, we must decide whether defendant’s sentences of ten to twenty years for breaking and entering with intent to commit larceny¹ and four to eight years for felonious assault² were improper. We conclude that the trial judge did not abuse his discretion in sentencing defendant because defendant’s past crimes had escalated in severity and were such that he had established his inability to be rehabilitated. Moreover, we stress that the sentencing guidelines do not apply to the sentencing of habitual offenders.

i

On December 5, 1990, Ithaca Police Chief Lee Schlappi investigated a breaking and entering at Sam’s Brothers in Ithaca, Michigan. During this investigation, Chief Schlappi came upon a young woman, Michelle Craig, who was walking through town wearing a green leather jacket that matched the description of one of the missing items. When he asked her about the jacket, Craig claimed that she owned it. Later that day, Chief Schlappi attempted to contact Craig by going to defendant’s house where he believed she might be. While looking for Craig at the house, Chief Schlappi found two plastic bags filled with some of the stolen items. Chief Schlappi did not arrest defendant, but did take the bags as he left the premises.

On the following day, the police found Craig in Alma, Michigan, and brought her to the Gratiot County Sheriff’s Department for questioning. During questioning, she explained her involvement in the breakings and enterings and also implicated defendant. The next day, Chief Schlappi went to defendant’s home to arrest him. Defendant attempted to avoid arrest by brandishing two knives and fleeing through a kitchen window. A chase ensued and he was apprehended.

Defendant was then brought to trial on February 12, 1991, in the Gratiot Circuit Court before Judge Randy L. Tahvonen. At trial, Craig testified that during the early morning hours of December 5, she and defendant stole clothing from Fashion Wheel and Sam’s Brothers.

On the basis of this evidence, the jury convicted defendant of breaking and entering Sam’s Brothers with intent to commit larceny, but could not arrive at a verdict in regard to defendant’s charge of breaking and entering the Fashion Wheel store.³ Following this trial, defendant pleaded guilty of resisting or obstructing an officer,⁴ felonious assault,⁵ and of being an habitual offender, third offense.⁶

On March 18, 1991, defendant was sentenced for all the convictions. For the breaking and entering with intent to commit larceny and the felonious assault convictions, Judge Tahvonen sentenced defendant as an habitual offender and imposed terms of ten to twenty years and four to eight years, respectively. The longest maximum term for breaking and entering is ten years,⁷ while the longest maximum term for felonious assault is four years,⁸ therefore the enhancement of these sentences is permissible under the habitual offender statute, which allows these maximum terms to be doubled.⁹ Defendant also received five to ten years for violating his probation¹⁰ and two to four years for resisting arrest.

Defendant appealed only the breaking and entering conviction and the enhanced sentences imposed for breaking and entering and felonious assault conviction. On February 1, 1994, the Court of Appeals affirmed the convictions,¹¹ but remanded for resentencing on the ground that the trial court’s sentences violated the principle of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The prosecutor petitioned this Court for leave to appeal, which was granted on July 22, 1994.¹²

ii

Punishing habitual criminals differently from first-time offenders dates back as far as 1929, when, in People v Palm, 245 Mich 396, 401; 223 NW 67 (1929), this Court specifically noted that an increase in punishment was necessary for habitual criminals "because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property.” More recently, this Court explained that is necessary to punish habitual criminals more severely in order to deter future criminal conduct:

"[T]he legislature did not intend to make a separate substantive crime out of being an habitual criminal but rather, for deterrent purposes, intended to augment the punishment for second or subsequent felonies.” [People v Hendrick, 398 Mich 410, 416-417; 247 NW2d 840 (1976), quoting People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958).]

Today the Legislature has codified this principle in MCL 769.11; MSA 28.1083:

(1) If a person has been convicted of 2 or more felonies, attempts to commit felonies, or both, whether the convictions occurred in this state or would have been for felonies in this state if the convictions obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:

(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or section 1 of chapter 11, may sentence the person to imprisonment for a maximum term which is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.

In the present case, defendant was convicted of breaking and entering an unoccupied building with intent to commit larceny, which carries with it a penalty of up to ten years in prison.¹³ Defendant points out that the sentencing guidelines recommend only a sentence from zero to two years. Michigan Sentencing Guidelines (2d ed), p 38.

However, as noted earlier, the sentencing guidelines do not apply to habitual offenders. See People v Williams, 191 Mich App 685; 479 NW2d 36 (1991); People v Finstrom, 186 Mich App 342; 463 NW2d 272 (1990). 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. Further, to hold that the sentencing guidelines have any effect on the sentencing of habitual offenders would preempt the Legislature’s development of guidelines that will specifically address habitual offender sentences. It is understood that

[e]ven though the Sentencing Guidelines do not apply where an offender is to be sentenced as an habitual offender, the judge must complete the [sentence information report] on the underlying offense. This information will aid in the development of guidelines to cover habitual offenders. [Michigan Sentencing Guidelines (2d ed), p 1.]

Defendant further claims that even if the sentencing guidelines do not apply to an habitual offender like himself, the sentence that he received was disproportionate in light of Milbourn, supra. The Court of Appeals agreed:

Although the sentencing guidelines do not apply to habitual offenders, one way to test the proportionality of an habitual offender sentence is to compare the guidelines recommendation with the degree of sentence enhancement authorized by the Legislature for the underlying crime. People v Oelberg, 197 Mich App 346, 347; 494 NW2d 869 (1992). [Unpublished opinion per curiam, issued February 1, 1994 (Docket No. 139378), pp 1-2.]

We conclude, however, that the Court of Appeals erred, as did the Oelberg Court, in trying to create a mathematical formula to determine whether the sentence imposed on defendant was proper.

Instead, the Court of Appeals should have considered whether the trial judge abused his discretion in imposing this sentence. As a general rule, sentencing law is a question of legislative intent. "Our preeminent requirement in formulating an alternative is to respect the purpose the Legislature of our state has manifested with regard to sentencing.” Milbourn, supra at 635. In the present case, the best indication of legislative intent can be found in the recently enacted sentencing guidelines’ legislation:

If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence. [1994 PA 445; MCL 769.34(10); MSA 28.1097(3.4)(10).]

Although this provision is not directly relevant, because the present sentencing guidelines are inapplicable to habitual offenders,¹⁴ we believe that this excerpt clearly demonstrates that the Legislature intends for the Court to have some level of review available to it for habitual offenders. We are persuaded that this level of review should be that of abuse of discretion.

Applying this standard of review, we conclude that the trial judge did not abuse his discretion in sentencing defendant. He acted reasonably by considering both defendant’s extensive criminal history and his potential for rehabilitation. The trial judge was correct in performing this analysis because "[u]nder our present framework of indeterminate sentencing, sentences are based more on an assessment of the offender than the offense.” People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987). Here, the judge examined four factors: (1) the proper way to discipline defendant, (2) the need to protect society from defendant, (3) the potential for reforming defendant, and (4) the potential of deterring others from committing like offenses. The trial judge noted that the breaking and entering was a serious crime and that defendant had become more dangerous to society because his crimes had escalated from nonviolent robberies into dangerous weapon assaults against police officers.¹⁵ The judge then concluded that defendant had clearly demonstrated his lack of intent to reform by violating his probation. Finally, he stated that one of the purposes of sentencing is to deter others from committing similar acts by setting a high market price on the crime.¹⁶ The judge took all these factors into account and sentenced defendant to ten to twenty years for the breaking and entering and four to eight years for the felonious assault.

The trial judge’s sentencing of defendant, although significant, is not unprecedented. It is not unlike Milbourris recognition that "the Legislature, in setting a range of allowable punishments for a single felony, intended persons whose conduct is more harmful and who have more serious prior criminal records to receive greater punishment than those whose criminal behavior and prior record are less threatening to society.” Id. at 651.¹⁷

In People v Odendahl, 200 Mich App 539, 541; 505 NW2d 16 (1993), the sentencing guidelines recommended a sentence of twenty-four to thirty-two months, but the Court of Appeals affirmed a sentence of ten to fifteen years, which exceeded the guidelines range. In that case, the defendant was convicted of felonious assault and possession of a firearm during the commission of a felony. He was a fourth-time offender and was sentenced to ten to fifteen years for the habitual offender conviction. The Court noted:

The sentencing guidelines for the felonious assault conviction provided a range of twenty-four to thirty-two months, but the trial court properly considered the circumstances of the crime, defendant’s extensive criminal history, and his potential for rehabilitation. Thus, the trial court did not abuse its discretion in sentencing defendant to ten to fifteen years’ imprisonment.

Courts in other jurisdictions have similarly found that substantial sentence enhancements for habitual criminals are not improper. Specifically, in Ducanson v Indiana, 509 NE2d 182, 187 (Ind, 1987), the Indiana Supreme Court found that a trial court did not abuse its discretion by increasing the sentence of a defendant from fifteen years to forty-five years because he was an habitual offender with three prior robbery convictions. "This fifteen (15) year sentence was enhanced by another thirty (30) years by reason of appellant’s status as an habitual offender. We see no abuse of discretion of the trial court in the sentencing of appellant.”

hi

We conclude that the trial judge did not abuse his discretion in sentencing defendant. Although defendant argues that the sentence imposed exceeded the recommended guidelines, these guidelines are not controlling because defendant was an habitual criminal. The judge properly considered the evolution of defendant’s criminal conduct and his capacity for rehabilitation and arrived at a sentence that did not exceed the statutorily proscribed maximum sentence enhancement. Thus, we would reverse the Court of Appeals decision remanding defendant’s conviction for resentencing.

Mallett and Weaver, JJ., concurred with Riley, J.

1 MCL 750.110; MSA 28.305.

2 MCL 750.82; MSA 28.277.

3 Defendant has not been retried on this count.

4 MCL 752.825; MSA 13.1484(5).

5 MCL 750.82; MSA 28.277.

6 MCL 769.11; MSA 28.1083.

7 MCL 750.110; MSA 28.305.

8 MCL 750.503; MSA 28.771.

9 MCL 769.11; MSA 28.1083.

10 Defendant was convicted in 1989 on two separate charges of breaking and entering.

11 Unpublished opinion per curiam (Docket No. 139378).

12 445 Mich 943.

13 MCL 750.110; MSA 28.305.

14 The guidelines’ legislation contemplates that the sentencing commission will formulate and the Legislature will enact guidelines for habitual offenders. This process, however, has not yet been completed.

15 Although the trial judge did not specifically note that defendant had enlisted the help of a sixteen-year-old girl in the commission of the crime, this fact provides additional support, for the sentence imposed. See, generally, Morris v Ford Motor Co, 320 Mich 372; 31 NW2d 89 (1948); Menendez v Detroit, 337 Mich 476; 60 NW2d 319 (1953).

16 A third purpose of sentencing is to deter people from committing crimes. That means to fix the market price for crime today.

17 The Milbourn decision requires proportionality in sentences that depart from the established guidelines. However, these guidelines do not apply to habitual criminals. Consequently, the Milbourn proportionality standard need not be reached in the context of the facts of this case.

The prosecutor does not dispute an appellate court’s authority to review defendant’s sentence for abuse of discretion. For this and other reasons, we need not reiterate the debate regarding the jurisprudential soundness of Milbourn. See, generally, People v Polus, 447 Mich 952 (1994) (statement of Boyle and Riley, JJ.); Milbourn, supra at 670 (Boyle, J., joined by Riley, C.J., dissenting).