People v. Grady

204 Mich. App. 314 (1994) 514 N.W.2d 541

PEOPLE
v.
GRADY

Docket No. 138215.

Michigan Court of Appeals.

Submitted February 3, 1994, at Lansing. Decided March 22, 1994, at 9:05 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William F. Delhey, Prosecuting Attorney, and Marilyn A. Eisenbraun, Assistant Prosecuting Attorney, for the people.

Michael J. Brady, for the defendant on appeal.

Before: McDONALD, P.J., and FITZGERALD and M.F. SAPALA,^[*] JJ.

PER CURIAM.

Defendant pleaded guilty as charged of open murder, MCL 750.316; MSA 28.548, before now retired Washtenaw Circuit Judge Edward D. Deake. After a hearing to determine the degree of the murder, Judge Deake found defendant guilty of second-degree murder, MCL 750.317; MSA 28.549, and sentenced him to a prison term of twenty-two to fifty years.

Defendant filed a motion to withdraw his guilty plea and a motion for resentencing on the basis of a misscoring of the sentencing guidelines that resulted in a sentencing guidelines' range of ten to twenty-five years. Defendant subsequently withdrew his motion to withdraw his plea, but proceeded with his motion for resentencing. Defendant's motion for resentencing was granted by Judge Deake's successor, Judge Donald E. Shelton. Judge Shelton found that the guidelines were incorrectly scored and that a proper scoring of the guidelines resulted in a lower guidelines' range of eight to twenty-five years. Judge Shelton, having the benefit of the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), resentenced defendant to forty to sixty years' imprisonment.

Upon the withdrawal of defendant's assigned appellate counsel, substitute counsel was appointed. Defendant's motions to remand this case to the trial court in order to bring motions for resentencing and recusal, and to bring a motion for a Ginther^[1] hearing were denied. Defendant appeals as of right. We affirm.

Defendant first claims that his sentence is disproportionate. We disagree. Judge Shelton set forth sufficient reasons for the departure on the record and in his seven-page "Statement of Reasons for Departure from Sentencing Guidelines" to justify the departure. In particular, Judge Shelton noted that "the multiple, grizzly [sic] wounds which were subsequently inflicted on [the victim] make this offense far worse than other unpremeditated attacks which result in second degree homicide convictions."^[2] The sentence is proportionate to the seriousness of the circumstances surrounding both the offense and the offender. Milbourn, supra.

Contrary to defendant's assertion, Judge Shelton did not render allocution meaningless by reducing to writing his reasons for the sentence departure before sentencing. Judge Shelton complied with MCR 6.425(D)(2), and there is nothing in the record to indicate that Judge Shelton had decided upon a particular sentence before defendant's allocution.

Further, Judge Shelton properly determined that the presumption of vindictiveness did not apply in this case. See People v Mazzie, 429 Mich 29; 413 NW2d 1 (1987) (when the same judge resentences a defendant, a sentence in excess of that judge's first sentence will be presumed to be vindictive).

Defendant also maintains that he was denied the effective assistance of counsel when his initial appellate attorney allowed resentencing to take place before Judge Deake's successor without obtaining a guarantee from Judge Shelton that he would not impose a sentence greater than the original sentence imposed by Judge Deake. However, defendant has cited no authority in support of the proposition that counsel's failure to ensure that resentencing would not result in a sentence that is longer than the original sentence constitutes a "serious mistake" under the objective standard of reasonableness. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). Defendant has failed to overcome the presumption that the action of moving for resentencing was sound trial strategy. People v Armendarez, 188 Mich App 61; 468 NW2d 893 (1991).

Affirmed.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

[2] In support of this conclusion, Judge Shelton stated in his written opinion:

The pathologist testified that there were "multiple deep cuts on the palms of both hands" such as "one sees on a person who has been defending himself against an attack with a sharp instrument." He found an eight inch long wound on the victim's neck where [the victim's] throat had been slashed "almost from ear to ear." Nevertheless, that grotesque wound apparently did not sever the major vessels long enough to kill him and the pathologist found another three inch long laceration below the large one. This second neck wound severed the jugular vein.... He found another stab wound above the breastbone in the front part of [the victim's] throat. That stabbing instrument went all the way through [the victim's] windpipe and into the vertebra at the back of his neck. The pathologist also found a two-inch shallow cut on the underside of the chin, two shallow cuts on the right shoulder, and a cut on top of [the victim's] head.