People v. Line

Per Curiam.

On August 7, 1984, pursuant to a plea bargain, defendant pled nolo contendere to two counts of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. Sentenced to a term of from six to ten years incarceration, he appealed as of right. We affirm.

The charges against defendant arose out of an incident which occurred on November 18, 1983. At that time defendant, a 56-year-old business man, was apparently experiencing financial difficulties. In addition to owning a business, defendant was also involved in the fur business. On November 18, defendant visited a fur dealer. Later that evening, he returned to the dealer’s barn and took several furs. Shortly thereafter, two sheriff’s deputies out on routine patrol attempted to make a traffic stop. When defendant’s vehicle stopped, an officer started to approach the vehicle and observed defendant exit from his car with a shotgun in his hands. According to appellate counsel, defendant’s actions were an "attempt at self-destruction”. He fired three shots from the gun, striking the police car. The two officers returned fire but did not strike the defendant. His vehicle then sped off pursued by these officers and members of other police departments as well. Defendant was finally apprehended in a field after he abandoned his vehicle.

Charged with breaking and entering as a result of the theft of the furs, defendant pled nolo contendere to the misdemeanor offense of larceny under $100. As a result of the second incident, defendant was charged with two counts of assault with intent to commit murder and two counts of felony-firearm.

Defendant was examined by various psychologists and their reports were made available to the sentencing judge. One report, compiled by the psychiatrist from the Center for Forensic Psychiatry, indicated that the examiner felt that defendant would not present further dangerous behavior and, if placed on a strictly supervised program of probation, would be unlikely to engage in illegal or antisocial conduct. In addition to those reports, the sentencing judge also received letters from various members of the community, including a bank president, a former probate judge, and a county sheriff, concerning defendant’s case and the sentence which the judge would ultimately impose.

Defendant first claims that the sentencing court abused its discretion by imposing a sentence double that of the recommended minimum sentence under the Michigan Sentencing Manual. The abuse of discretion is further illustrated, claims defendant, by the fact that the court stated that the potential for defendant’s reformation was great. Also, reports of the psychological examiners concluded that defendant was not likely to pose a threat of danger to others, thus evidencing the propriety of a lesser sentence.

Application of the guideline factors to the circumstances of this case results in a recommended minimum sentence range of from 12 to 36 months. The actual minimum sentence imposed, 72 months, does exceed the recommended range. However, such departures are expected and, as long as the trial court articulates permissible reasons in support of that decision, unless our appellate conscience is shocked, we do not afford relief. See, e.g., People v Purzycki, 143 Mich App 108; 371 NW2d 490 (1985); People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985). After reviewing the record, we find no abuse of discretion.

The sentencing judge specifically stated that he considered the four factors enumerated in People v Snow, 386 Mich 586; 194 NW2d 314 (1972), and did specifically state that there appeared to be some potential for defendant’s reformation. However, in consideration of the fact that defendant had fired three shots from a 12-gauge shotgun at a police car during an attempted traffic stop, the judge determined that the need to punish the defendant and to protect society warranted the imposition of the stated term. Sentencing is a discretionary matter and great confidence is placed in the ability of the sentencing judge to determine an individualized sentence appropriate for both the offender and the offense committed. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973); People v Coles, 417 Mich 523; 339 NW2d 440 (1983).

The sentencing judge was aware of defendant’s financial difficulties and the stress and pressure of those problems. He also had access to the letters from members of the community written on defendant’s behalf and the reports of the various psychologists. He also was familiar with the facts surrounding this offense and placed emphasis upon the gravity of the conduct involved. Although neither police officer was injured, the three shots fired by the defendant did strike the police vehicle. Defendant then returned to his car and fled with the officers in pursuit. Such conduct not only constituted a danger to the officers but also posed a threat to the public in general. Here, after consideration of the positive aspects of defendant’s background, the court concluded that defendant’s intolerable conduct required imposition of the six-to ten-year prison term.

The judge stated his reason for departing from the guidelines and such justification represents a reasoned exercise of his judicial sentencing discretion. We cannot say that the reasons given for the departure are improper, insufficient or unsupportable. Therefore, we affirm the sentence.

Defendant argues that the trial court abused its discretion by allowing a 30-year-old conviction to be included in the presentence report and by considering that conviction in imposing sentence. We disagree. While evidence of convictions of a certain age are inadmissible for impeachment purposes at trial, MRE 609(b), or excluded from computation of the Prior Record Variable of the Michigan Sentencing Guidelines Manual, Tab 3 H, there is no bar to the consideration of such convictions at sentencing.

MCL 771.14; MSA 28.1144 provides that, in all felony cases, a presentence report shall be prepared and the probation agent "shall inquire into the antecedents, character, and circumstances of the person”. The purpose of the statute is to provide the court with information about the offender so that the court may make an informed and just determination of the appropriate disposition. People v Potrafka, 140 Mich App 749; 366 NW2d 35 (1985). The scope of the information presented is broad and rules of evidence do not apply. People v Books, 95 Mich App 500; 291 NW2d 94 (1980). In this case, although defendant does not dispute that he had two convictions in 1947 (one for larceny and one for escape), he claims that information concerning any conviction over 10 years old is not accurate and relevant information. We disagree.

We see no valid reason why convictions over 10 years old, or 30 years in this case, may not be considered by the trial court in determining the proper sentence. It is axiomatic that, in order to individualize a sentence to meet the circumstances of the offender, more information, as opposed to less information, is desirable. In this case, defendant does not contest the fact of the convictions or argue that the information supplied to the court is inaccurate or incorrect. Were defendant to argue that for some reason those convictions were constitutionally defective or that the information included in the report was inaccurate, the court would have had the obligation to respond to those claims. See, United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Edenburn, 133 Mich App 255; 349 NW2d 151 (1983). Instead, when defendant objected to the inclusion and consideration of those prior convictions because of their age, the court responded:

"But for the record, I find nothing that would preclude the convictions that are included here from being included as part of the Defendant’s background. Certainly the weight that would be placed on these convictions would have to be given its proper perspective taking into consideration the lapse of time from the conviction to the present date. But that does not alter the fact of the conviction as part of the antecedent’s background and character of the individual before the court.”

We agree with the assessment of the trial court. Nothing precludes the convictions from being included in the report and the weight to be afforded those convictions, as with other evidence pertaining to the offender and the offense, is a matter of balancing for the court.

Affirmed.