People v. Robinson

Taylor, J.

Each defendant has appealed from his resentencing to 65 to 150 years of imprisonment. We have consolidated their appeals and affirm the sentences imposed.

On August 29, 1985, defendants robbed and murdered Paul Hutchins, an off-duty Michigan State Police trooper. Defendants were convicted of second-degree murder, MCL 750.317; MSA 28.549, and armed robbery, MCL 750.529; MSA 28.797.¹ Defendants were each sentenced by Judge Michael Talbot to 150 to 300 years in prison for their second-degree murder convictions and 30 to 60 years in prison for the armed robbery convictions. In People v Frazier, unpublished opinion per curiam of the Court of Appeals, issued March 8, 1990 (Docket Nos. 102749, 102920, 104683), this Court affirmed the convictions and the sentences for the armed robbery convictions but remanded for resentencing with regard to the sentences for the murder convictions because the sentences imposed violated People v Moore, 432 Mich 311; 439 NW2d 684 (1989).² At resentencing, Judge Talbot sentenced each defendant to 65 to 150 years in prison. In People v Phillips (On Rehearing), 203 Mich App 287, 291; 512 NW2d 62 (1994), this Court held that, even though a most severe sentence was warranted and that a parolable life sentence would have been affirmed posthaste, 65- to 150-year sentences were disproportionately harsh and ordered a resentencing by a different judge. Judge Connor dissented, stating that he did not find the 65- to 150-year sentences in violation of the principle of proportionality. The Supreme Court denied the prosecutor’s application for leave to appeal. 450 Mich 851 (1995).³

Defendants were resentenced by Judge Karen Fort Hood on October 13, 1995. Judge Hood imposed 65-to 150-year sentences. Defendants now appeal their most recent sentences, arguing that the sentences violate the law of the case doctrine and are disproportionate.

Assuming arguendo that the law of the case doctrine can apply to a resentencing performed by a different judge,⁴ we find that it does not apply to defendants Phillips and Frazier. The law of the case doctrine is a general rule that applies only if the facts remain substantially or materially the same.⁵ People v Fisher, 449 Mich 441, 444-445; 537 NW2d 577 (1995); Johnson v White, 430 Mich 47, 52; 420 NW2d 87 (1988). We hold that the law of the case doctrine does not apply to defendants Phillips and Frazier because the facts regarding Phillips and Frazier did not remain substantially the same between the time of the first resentencing and the second resentencing.

One of the reasons cited by the trial court for giving Phillips and Frazier 65- to 150-year sentences was their deplorable prison records. The record indicates that Phillips had at least ten prison misconducts after the first resentencing, including attempted bribery of a corrections officer, disobeying a direct order, being out of place, unauthorized occupation of a cell, insolence, substance abuse, and testing positive for thc.⁶ Further, Phillips had recently been arrested for possession of a weapon (a seven-inch shank). This conduct, in which Phillips engaged after the first resentencing, removes the sentence imposed from the law of the case.⁷

The same reasoning applies to defendant Frazier. Although his prison record after the first resentencing was not as bad as Phillips’, it was bad enough to foreclose application of the law of the case doctrine, i.e., the facts had not remained materially the same. After the first resentencing, Frazier had several misconduct tickets, including one for assault and battery (wherein the victim’s jaw was broken), three for insolence, one for failing to appear for class, and a pending misconduct for threatening behavior. Further, a September 20, 1993, report indicated that Frazier had been making poor progress with schooling, was not yet ready for the ged tests, and would be put on a waiting list until he could be more cooperative. The court also indicated that Frazier had refused to go to school, having missed ninety-five percent of his classes. This conduct, in which Frazier engaged after the first resentencing, removes the sentence imposed from the law of the case.

Defendant Robinson’s prison record after the first resentencing apparently included only three relatively minor misconduct tickets. The prosecutor correctly conceded at the second resentencing that Robinson’s prison record certainly was not as dismal as those of the other defendants. We will assume for the sake of argument that the facts did remain materially the same with regard to Robinson. Notwithstanding Robinson’s better prison record after the first resentencing, we still affirm Robinson’s sentence.

Particularly in criminal cases, the law of the case doctrine is not inflexible and need not be applied if it will create an injustice. People v Herrera (On Remand), 204 Mich App 333, 340-341; 514 NW2d 543 (1994). At least one panel has stated that the law of the case need not be applied where the prior opinion was clearly erroneous. People v Wells, 103 Mich App 455, 463; 303 NW2d 226 (1981). For example, in People v Spinks, 206 Mich App 488, 491; 522 NW2d 875 (1994), the Court refused to apply the law of the case because there had been an intervening change in the law.

Even in civil cases, the law of the case doctrine has sometimes been described as discretionary rather than mandatory. Bennett v Bennett, 197 Mich App 497, 500; 496 NW2d 353 (1992). The doctrine has been described as a general practice and not a limit on a court’s power. Locricchio v Evening News Ass’n, 438 Mich 84, 108-110; 476 NW2d 112 (1991).⁸ Finally, there are times where the law of the case must yield to a competing interest. Locricchio, supra.

The law of the case doctrine is a weak sister of the doctrine of preclusion, which includes the principle of res judicata. Yet, res judicata will not apply when it would result in inequitable administration of the laws. Young v Detroit City Clerk, 389 Mich 333, 340; 207 NW2d 126 (1973). A fortiori, we decline to apply a doctrine designed for judicial convenience in fairly administering the obligation to do justice so as to work an injustice.

On the facts of this case, there are several reasons not to apply the law of the case doctrine. First, despite the denial of leave to appeal by the Supreme Court from our prior decision, the Supreme Court itself is not bound to any law of the case, having not itself rendered any pronouncement regarding the merits. Raven v Wayne Co Bd of Comm’rs, 399 Mich 585, 587 n 1; 250 NW2d 477 (1977).

Where it is clear that the Supreme Court would affirm the present sentences (given the Supreme Court’s most recent decisions reviewing lengthy sentences discussed below), no valid purpose would be served by robotic adherence to a doctrine designed to promote judicial efficiency, not detract from it so as to waste scarce judicial resources. Accordingly, it would be inappropriate for this Court to force the Supreme Court to do that which we know we ought to do ourselves. Mikedis v Perfection Heat Treating Co, 180 Mich App 189, 203-204; 446 NW2d 648 (1989).

Further, since the most recent prior decision in these cases by this Court, the applicable legal principles of sentence review have been substantially altered. Justice Riley’s dissent from the denial of leave to appeal this Court’s earlier opinion stated that she would have remanded the case for reconsideration in light of People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994), and People v Houston, 448 Mich 312; 532 NW2d 508 (1995). Merriweather involved a 60- to 120-year sentence that the Court of Appeals had declared to be disproportionate. The Supreme Court disagreed and reinstated the sentence. In Houston, the Supreme Court again rejected a claim that a sentence was disproportionate. This trend in the Supreme Court toward restricting the circumstances under which a lengthy sentence will be found disproportionate has continued. In People v Mitchell, 454 Mich 145, 174, n 34; 560 NW2d 600 (1997), the Supreme Court indicated that it had only found two sentences⁹ disproportionately harsh since People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), was decided, notwithstanding the fact that the issued had been raised in approximately one thousand appeals. Further, in People v Lemons, 454 Mich 234; 562 NW2d 447 (1997), the Court upheld a parolable life sentence and a 60- to 90-year sentence for a forty-five-year-old defendant. In People v Hansford (After Remand), 454 Mich 320; 562 NW2d 460 (1997), a 40-to 60-year sentence was upheld for an habitual offender whose underlying offenses were property crimes, burglary, and receiving and concealing stolen property. We also note that the prior panel in this case indicated that it would have affirmed a parolable life sentence. Such a conclusion incorrectly assumes that a parolable life sentence is always more desirable, or less Draconian, than a 65- to 150-year sentence. See People v Carson, 217 Mich App 801 (1996), followed by a special panel convened pursuant to Administrative Order No. 1996-4 (now MCR 7.215[H]) at 220 Mich App 662, 673; 560 NW2d 657 (1996) (holding that it is error to conclude that a parolable life sentence is invariably a greater penalty than a sentence of a lengthy term of years). Thus, we conclude that there has been an intervening change in the law indicating that fewer sentences than first believed under Milbourn should in fact be found disproportionate.¹⁰

We are satisfied that Robinson’s 65- to 150-year sentence is proportionate, considering the offense and the offender. Moreover, it would create an injustice to remand for a fourth sentencing and imposition of a shorter sentence. Mindful of the abjuration that a resentencing cannot be validly ordered unless the initial sentence is invalid, Mitchell, supra, it would be both unjust and in excess of our jurisdiction not to affirm a proportionate sentence. The law of the case must yield to this overriding interest. Two different circuit court judges have indicated that a sixty-five-year minimum sentence is proper. An appellate court ought to look long and hard before it finds that such a sentence is disproportionate. Under current sentence review standards, we have no difficulty concluding that this 65- to 150-year sentence is proportionate to the offense and the offender. Merriweather, supra; Lemons, supra. Robinson’s sentence is therefore affirmed.

Defendants also challenge the scoring of their sentencing guidelines. However, none of the assertions made are cognizable appellate issues. Mitchell, supra at 177. Moreover, where the trial court clearly explains the sentence and states that it is an appropriate sentence, even if it is a departure from the recommended guidelines’ range, the proper scoring of the guidelines is mooted. People v Hull, 437 Mich 868 (1990).¹¹ This holding of Hull applies with even more force where the trial court obviously found the guidelines’ range entirely deficient and explained why it was exceeding the guidelines’ recommended range.

Finally, we reject Frazier’s claim that he was sentenced on the basis of inaccurate information that was not disclosed before trial. The information that Frazier claims was undisclosed was in fact disclosed in the prosecutor’s sentencing memorandum that was filed before sentencing. Frazier did not object to the information in this memorandum at sentencing. This issue is waived. People v Sharp, 192 Mich App 501, 504; 481 NW2d 773 (1992).

The prosecutor does, however, concede that certain information in the presentence report, which Frazier objected to at sentencing, should have been, but was not, deleted. Therefore, Frazier is entitled to a remand for the sole purpose of having certain challenged material deleted from his presentence report.

We affirm the sentences imposed and remand solely for the deletion of material from Frazier’s presentence report.

Hoekstra, J., concurred.

1 The Supreme Court affirmed defendants’ convictions. People v Frazier (After Remand), 446 Mich 539; 521 NW2d 291 (1994).

2 We note that Moore is no longer good law. See People v Kelly, 213 Mich App 8, 15; 539 NW2d 538 (1995); People v Lemons, 454 Mich 234, 257; 562 NW2d 447 (1997).

3 The order denying leave to appeal indicated that Justices Boyle and Weaver would have reinstated the defendants’ sentences and that Justice Riley would have remanded for reconsideration in light of People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994), and People v Houston, 448 Mich 312; 532 NW2d 508 (1995).

4 We would be more receptive to invoking the law of the case doctrine if the sentences we are reviewing had not been imposed by a different judge. See People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987). Indeed, the prosecutor argues that, as a matter of policy, the law of the case doctrine should never control a successor judge in resentencing a defendant.

5 Cf. People v Jones, 403 Mich 527, 532; 271 NW2d 515 (1978) (a judge may, consistent with due process, impose a more severe sentence after a new trial if it is based on identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceedings). See also Maszie, n 4 supra (there is no presumption of vindictiveness if a longer sentence is imposed after a new trial by a different judge).

6 Several of these misconducts are crimes and if prosecuted as such would have resulted in additional prison time.

7 We also note that Phillips has two other apparently unrelated second-degree murder convictions and this Court has already affirmed a 75- to 150-year sentence for one of those other convictions. People v Phillips, 209 Mich App 1, 6; 530 NW2d 111 (1995). The affirmance of a seventy-five-year minimum sentence in a different case virtually minifies the significance of the sixty-five-year minimum sentence imposed in the case at bar. Id. at 5.

8 Curiously, and inexplicably, the same four justices who signed the majority opinion in Locricchio asserting the proposition that the law of the case is not a limit of a court’s power, for which only federal authorities were cited, said precisely the contrary in Johnson v White, 430 Mich 47, 53; 420 NW2d 87 (1988) (“The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on a rehearing.”), citing Michigan case law. Locricchio did not distinguish or even cite Johnson.

9 An apparent reference to People v Pohl, 445 Mich 918 (1994), and People v Clark, 448 Mich 869 (1995). We also note that the Supreme Court found a sentence disproportionately lenient in People v Wadsack, 450 Mich 864 (1995).

10 We note that we are not alone in reaching this conclusion. In People v Barclay, 208 Mich App 670; 528 NW2d 842 (1995), this Court held that a parolable life sentence for armed robbery and a 30- to 60-year sentence for assault with intent to commit murder violated the principle of proportionality. At resentencing, identical sentences were imposed. This Court recently affirmed the sentences, refusing to be bound by the law of the case doctrine. After citing the Supreme Court’s recent opinions in Merriweather, supra, Houston, supra, Mitchell, supra, and Hansford, supra, the Court indicated that the principle of proportionality is now understood in a substantially different light. People v Barclay (After Remand), unpublished memorandum opinion, Docket No. 193398, issued October 10, 1997.

11 Supreme Court peremptory orders are binding precedent when they can be understood. See People v Crall, 444 Mich 463, 464, n 8; 510 NW2d 182 (1993).