People v. Johnson

173 Mich. App. 706 (1988) 434 N.W.2d 218

PEOPLE
v.
JOHNSON

Docket No. 106176.

Michigan Court of Appeals.

Decided December 19, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.

Robert M. Morgan, for defendant on appeal.

Before: CYNAR, P.J., and HOOD and MURPHY, JJ.

CYNAR, P.J.

On June 19, 1987, defendant pled guilty to four counts of armed robbery, MCL 750.529; MSA 28.797, and one count of assault with intent to commit robbery while being armed, MCL 750.89; MSA 28.284. Defendant also pled nolo contendere to four counts of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), and nolo contendere to two counts of criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3). On July 7, 1987, defendant was sentenced to 12 1/2 to 25 years on each of the four armed robbery convictions, as well as the four first-degree criminal sexual conduct convictions and the assault with intent to commit robbery conviction. He was also sentenced to a term of ten to fifteen years on each count of second-degree criminal sexual conduct. All of the sentences were imposed to run concurrently. Thereafter, defendant's motion for resentencing was heard and denied on January 8, 1988. Defendant appeals as of right. We affirm.

Defendant argues that the trial court erred by denying his motion for resentencing. However, defendant has not provided this Court with a transcript of the resentencing hearing. Defendant had the responsibility to file the full transcript of the hearing or provide a settled statement of facts. MCR 7.210(B)(1)(a). Accordingly, we consider this issue abandoned on appeal. People v Kelly, 122 Mich. App. 427, 429-430; 333 NW2d 68 (1983).

Additionally, our review of the record indicates that defendant's claim of error is without merit. In the motion for resentencing, defendant argued that the court did not articulate adequate reasons for imposing sentences which exceeded the guideline range. Defendant contends that, by considering the devastation to the community by the series of assaults committed by the defendant and by noting that eleven separate criminal convictions were involved, the sentencing court improperly considered factors already taken into account under the guidelines. This argument is rejected. People v Hatch, 156 Mich. App. 265, 268-269; 401 NW2d 344 (1986); People v Diamond, 144 Mich. App. 787, 789; 376 NW2d 192 (1985), lv den 424 Mich. 894 (1986); People v Ridley, 142 Mich. App. 129, 134; 369 NW2d 274 (1985).

In Williams v New York, 337 U.S. 241; 69 S. Ct. 1079; 93 L. Ed. 1337 (1949), the United States Supreme Court reviewed the past as well as the existing objectives of criminal law in imposing sentences. In footnote 13, 337 U.S. 248, the Williams opinion makes reference to a writing by a trial judge as to factors that a judge should consider in imposing sentence. Such factors are:

1st. The protection of society against wrongdoers.

2nd. The punishment — or much better — the discipline of the wrong-doer.

3rd. The reformation and rehabilitation of the wrong-doer.

4th. The deterrence of others from the commission of like offenses.

The footnote further states:

It should be obvious that a proper dealing with these factors involves a study of each case upon an individual basis. Was the crime a crime against property only, or did it involve danger to human life? Was it a crime of sudden passion or was it studied and deliberate? Is the criminal a man so constituted and so habituated to war upon society that there is little or no real hope that he ever can be anything other than a menance to society — or is he obviously amenable to reformation?

In People v Snow, 386 Mich. 586, 592; 194 NW2d 314 (1972), our Supreme Court observed that, in Williams v New York, supra, "certain basic considerations were found to be proper in determining an appropriate sentence: (a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses."

While recognizing the consideration of factors (a), (b), (c) and (d) to be proper, People v Snow, supra, does not limit the trial judge in imposing an appropriate sentence to only consider those factors. Furthermore, failure to note all four of the factors does not destroy the propriety of the sentencing court's rationale. People v Girardin, 165 Mich. App. 264, 267-268; 418 NW2d 453 (1987).

The use of the sentencing guidelines is mandated by administrative order of the Michigan Supreme Court. Administrative Order No. 1984-1, 418 Mich. 1xxx. While use of the guidelines is mandatory, the sentencing judge has the discretion to depart from the guidelines provided that sufficient reasons are stated supporting departure. People v Terry James, 142 Mich. App. 19, 21; 368 NW2d 892 (1985).

Defendant further complains that he is not receiving psychiatric treatment as recommended by the sentencing judge. While such a complaint may be a matter which might be taken up with the Department of Corrections, it does not support defendant's claim that the trial court erred in failing to grant the motion for resentencing.

Affirmed.

MURPHY, J., concurred in the result only.