People v. Van Etten

163 Mich. App. 593 (1987) 415 N.W.2d 215

PEOPLE
v.
VAN ETTEN

Docket No. 94846.

Michigan Court of Appeals.

Decided June 5, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Paul J. Fischer, Assistant Prosecuting Attorney, for the people.

Faintuck, Schwedel & Wolfram (by William G. Wolfram), for defendant.

Before: WAHLS, P.J., and R.M. MAHER and J.T. KALLMAN,^[*] JJ.

PER CURIAM.

Defendant was originally charged with two counts of assault with intent to rob while armed, MCL 750.89; MSA 28.284, and was successful in reducing one of those counts to felonious assault, MCL 750.82, MSA 28.277. Pursuant to a negotiated plea bargain, defendant pled guilty to one count of assault with intent to rob while armed and to violation of the habitual offender, second offense, provision, MCL 769.10; MSA 28.1082. Although defendant was sentenced to terms of five to thirty years on each conviction, his sentence on the underlying conviction of assault with intent to rob was vacated by the trial court. On appeal, defendant asserts that the trial court failed to adequately articulate its reasons for the sentence imposed. We agree.

In People v Coles, 417 Mich. 523, 549; 339 NW2d 440 (1983), our Supreme Court stated that, in order to aid the appellate review process, the trial court must at the time of sentencing articulate on the record its reasons for imposing the sentence given. A nonexhaustive list of the proper criteria for determining an appropriate sentence is noted in People v Snow, 386 Mich. 586, 592; 194 NW2d 314 (1972), and includes the disciplining of the wrongdoer, the protection of society, the potential for reformation of the offender, and the deterring of others from committing like offenses. A sentence should be tailored to the particular circumstances of the case and to the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. People v McFarlin, 389 Mich. 557, 574; 208 NW2d 504 (1973).

Sentencing in the present case took place on May 2, 1986. The trial judge initially reviewed with defendant the rights he was waiving in entering his guilty pleas. After defendant explained how he had assaulted two individuals with a BB pistol and had unsuccessfully tried to steal drugs from them, and after he acknowledged having been previously convicted of breaking and entering a motor vehicle with intent to steal property worth five dollars or more, defendant's counsel moved for sentencing. Defendant made a brief statement, and the trial judge imposed sentence, stating: "I have no alternative but under the circumstances of this case and the information from the presentence report to turn you over to the Department of Corrections for a period of five to thirty years."

The prosecutor argues that the trial court adequately articulated its reasons for imposing the five-to-thirty-year sentence because "[t]he court specifically referred to the circumstances of the case and the information contained in the presentence report, although without enumerating the various considerations separately." It is precisely such "various considerations," however, which Coles requires to be placed on the record. Since an appellate tribunal cannot, and should not, presume to divine the considerations which prompted a trial court, in its discretion, to impose a particular sentence, trial judges must assiduously comply with the Coles requirement of stating on the record "what reasons support the court's decision regarding the length and nature of punishment imposed." Coles, supra, p 550.

Accordingly, this case must be remanded for resentencing of defendant. A resentencing is required, and not a mere remand for the articulation of the reasons supporting the sentence previously imposed, in order to ensure the defendant's presence in court at the time the judge articulates his reasons for the sentence imposed. The defendant's presence at that time will allow him the opportunity to alert the judge to perceived inaccuracies, if any, in the articulated reasons. This is consistent with the language in Coles regarding articulation, which provides: "The trial court must at the time of sentencing articulate on the record its reasons for imposing the sentence given." 417 Mich. 549. See also People v Garvin, 159 Mich. App. 38; 406 NW2d 469 (1987). Remanding for mere articulation, which might occur outside the presence of the defendant, would not only run contrary to the letter of Coles, but would also violate the spirit of that case in that post-sentencing articulation would do little to justify the sentence imposed if the trial judge relied on information which, had the defendant been present, would have been declared to be inaccurate. Moreover, the rule that a defendant is entitled to the right of allocution prior to sentencing requires strict compliance. MCR 6.101(G)(2). Ordinarily, the sentencing judge must specifically inquire immediately before pronouncing sentence whether the defendant wishes to address the court before sentence is imposed, People v Berry, 409 Mich. 774, 781; 298 NW2d 434 (1980), and resentencing is required if this right is violated, Coles, supra, p 532; People v McNeal, 150 Mich. App. 85, 88-90; 389 NW2d 708 (1986).

Remanded. We do not retain jurisdiction.

J.T. KALLMAN, J. (concurring in part and dissenting in part).

People v Coles, 417 Mich. 523, 549; 339 NW2d 440 (1983), requires a sentencing court to articulate on the record its reasons for imposing the sentence given. I agree that the sentencing court failed to comply with this provision of Coles. I am not, however, persuaded that a remand for resentencing is required.

In this case, the defendant was sentenced as an habitual offender for assault with intent to rob while armed. The sentencing guidelines do not apply to habitual-offender sentences, People v Willhite, 155 Mich. App. 124, 126; 399 NW2d 57 (1986). Coles dictates that an appellate court "may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court." Coles, supra, p 550.

A remand for resentencing in this case would serve no useful purpose and would be a waste of judicial resources. My conscience is not shocked by a sentence of from five to thirty years for an habitual offender conviction of assault with intent to rob while armed. Compare Willhite, supra, where the Court refused to remand for a Coles articulation on a three-to-twenty-five-year sentence for an habitual offender conviction of unarmed robbery. I would affirm the defendant's conviction and sentence. The most the defendant is arguably entitled to is a remand for a Coles articulation, see People v Flowers, 422 Mich. 880 (1985). A remand for resentencing is unwarranted.

NOTES

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