People v. Clark

207 Mich. App. 500 (1994) 526 N.W.2d 357

PEOPLE
v.
CLARK

Docket No. 162735.

Michigan Court of Appeals.

Submitted October 19, 1994, at Lansing. Decided November 21, 1994, at 9:05 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Samuel R. Smith, Chief Appellate Attorney, for the people.

James M. Walline, for the defendant.

Before: NEFF, P.J., and MARILYN KELLY and P.R. JOSLYN,^[*] JJ.

MARILYN KELLY, J.

Defendant, Edward Wheeler Clark, seeks relief from the sentence imposed following his plea of guilty to the charge of carrying a concealed weapon in a motor vehicle. MCL 750.227; MSA 28.424. He committed the offense while on parole for an earlier felony conviction. The judge sentenced him to three to five years imprisonment. Subsequently, he denied defendant's motion to withdraw his guilty plea. Defendant asserted that, when he pled guilty, no one informed him that he had to complete the sentence for his prior conviction before the sentence for ccw would begin to run. He argues that effectively he was sentenced to 13 1/2 to 15 1/2 years for the offense to which he pled.

I

On appeal, defendant contends that his sentence violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). He asserts that the trial judge did not recognize the extent of his sentencing prerogatives when he fashioned defendant's sentence. We affirm.

Defendant's first assertion that his sentence is disproportionate is without merit. The record indicates that defendant was sentenced within the sentencing guidelines' range. A sentence within the range is presumptively neither excessively severe nor unfairly disparate. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Defendant has not established any unusual circumstances which would justify a downward departure from the guidelines. Defendant cannot establish that the judge imposed a sentence which violated the principle of proportionality set forth in Milbourn.

II

Defendant also asserts that the sentence must be considered in conjunction with the sentence he will be required to serve for his prior offense in order to evaluate its proportionality. However, neither the trial court nor our Court is required to consider the length of consecutive sentences in deciding the proportionality of each individual sentence. As long as each sentence is proportionate, the cumulative effect of consecutive sentences does not affect proportionality. People v Warner, 190 Mich App 734, 736; 476 NW2d 660 (1991).

However, our conclusion does not fully settle the matter presented on appeal. Recently, our Court considered the appeal of an individual who, while on parole, violated its terms by committing another crime. The Court held that the defendant must complete the remaining portion of the maximum sentence imposed for the previous offense before beginning the sentence imposed for the later offense. MCL 768.7a(2); MSA 28.1020(1)(2); People v Young, 206 Mich App 144; 521 NW2d 340 (1994). In his argument to us, defendant anticipates that he will be subject to the holding in Young. He insisted below and again on appeal that, had he realized the potential impact of Young, he would not have pled guilty. Having reviewed the record, we conclude that defendant's plea was knowing and voluntary.

Moreover, the Young opinion stated that the decision should be given prospective application only. Young, p 159. We believe that prospective application means that the holding in Young applies only to those individuals who commit a crime after the date on which the opinion was issued. Therefore, defendant's sentence may be calculated by the method previously employed by the Department of Corrections consistent with its pre-Young interpretation of MCL 768.7a(2); MSA 28.1030(1) (2).

We affirm defendant's conviction and sentence.

NOTES

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