492 N.W.2d 781 | Mich. Ct. App. | 1992
PEOPLE
v.
BRZEZINSKI
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael J. Lemcool, Prosecuting Attorney, and Carole F. Barnett, Assistant Attorney General, for the people.
Blakeslee, Chambers, Peterson, Dalrymple & Christopherson (by James A. Christopherson), for the defendant on appeal.
*254 Before: SAWYER, P.J., and MURPHY and GRIFFIN, JJ.
AFTER REMAND
GRIFFIN, J.
Defendant pleaded guilty on April 2, 1990, of one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and three counts of attempted second-degree criminal sexual conduct, MCL 750.92, 750.520c(1)(a); MSA 28.287, 28.788(3)(1)(a), stemming from the sexual abuse of his four minor children. Defendant was sentenced to ten to fifteen years in prison for his conviction of CSC II, and to forty to sixty months in prison for each of the remaining convictions. Defendant appealed his sentences as of right, and this Court remanded for resentencing in light of People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). Unpublished opinion per curiam, decided June 7, 1991 (Docket No. 130119). Following a hearing, the trial court imposed the same sentence on remand that it did originally. Defendant again appeals as of right, and we now affirm.
In his first issue on appeal, defendant argues that his ten- to fifteen-year sentence is excessive and violates the principle of proportionality. We disagree.
Defendant's ten-year minimum sentence is the maximum sentence allowed by law for CSC II.[1] It is also a twofold departure from the high end of the guidelines recommended minimum range of twenty-four to sixty months. We acknowledge that under Milbourn, supra, such extreme departures are suspect. Under Milbourn, the second edition of the guidelines are said to provide the best "barometer" for gauging the proportionality of a given *255 sentence. Id. at 656. However, adherence to the guidelines is not required, and sentencing courts remain free to depart when the recommended range is disproportionate to the offense and the offender. See People v Redman, 188 Mich. App. 516, 517; 470 NW2d 676 (1991).
Applying this principle to this case, we find no abuse of sentencing discretion. A review of the record reveals that defendant is an admitted pedophile who abused and terrorized his four natural children, all of whom were very young when the abuse occurred. Although defendant pleaded guilty of three counts of attempted CSC II, the plea transcript reveals that completed acts occurred. Furthermore, at the suggestion of this Court, the trial court, on remand, took testimony from defendant's ex-wife regarding the extent and ongoing nature of the sexual abuse. She testified that, from what she could remember, the abuse took place over a two-year period, between 1986 and 1988. Defendant's ex-wife described numerous incidents where she discovered defendant engaged in adult sexual acts with their very young children, one of whom, a male child, was only three years old at the time. At the close of the hearing, the trial court found the sentence recommended by the guidelines to be "grossly inadequate" with regard to the conduct at issue. We agree and find the following reasons listed on the departure form sufficient to sustain the departure exercised in this case:
Defendant is an admitted pedophile. He is being sentenced for one count of criminal sexual conduct in the second degree and three counts of attempted criminal sexual conduct in the second degree. The victims are his own minor children. Defendant's criminal activities took place over an extended period of time and involved numerous acts. The medical information indicates that the *256 defendant's condition is extremely difficult to treat and usually with little success. Defendant was allowed to plead to these charges in exchange for dismissal of a criminal sexual conduct charge in the first degree. The court finds that the defendant received full credit in the sentencing process when the plea negotiation was agreed to. The court views the defendant as a [sic] extremely dangerous person, not only to his own children, but to the community at large. To achieve the goals of punishment, protection of society, hopefully rehabilitation of the defendant and the deterrence factor, the court does not find that the suggested guidelines are sufficient in duration to achieve these goals. The court is satisfied that a long term controlled environment is needed for the defendant.
We also note that the trial court appropriately emphasized the substantial nature of the plea bargain that had been struck in this case. Milbourn did not address the unique sentencing situation that arises when a defendant pleads guilty of a lesser charge in exchange for dismissal of other or greater charges. People v Duprey, 186 Mich. App. 313, 318; 463 NW2d 240 (1990). In such cases, a trial court's consideration of factors not embodied in the guidelines becomes more compelling. Id.; People v Anthony Williams, 191 Mich. App. 685, 687-688; 479 NW2d 36 (1991). In this case, defendant was originally charged with one count of first-degree CSC and three counts of second-degree CSC. Under Michigan law, first-degree criminal sexual conduct carries a potential life sentence. MCL 750.520b(2); MSA 28.788(2)(2). Consequently, by operation of the plea bargain, the possibility of a life sentence was removed, and defendant's potential term of incarceration was limited to fifteen years.
After thorough review, we conclude that defendant's *257 sentence is adequately tailored to the individual circumstances of his case. We find the sentence to be neither excessively severe nor unfairly disparate, and accordingly find no violation of the principle of proportionality.
Defendant next contends that the updated presentence report prepared for the resentencing was inadequate and incomplete. We disagree. We find the one-page addition prepared by the probation department sufficient, particularly in view of defendant's failure to object below. See People v Sharp, 192 Mich. App. 501, 504; 481 NW2d 773 (1992).
Finally, defendant argues that the trial court erred in not preparing a second sentencing information report for use at the resentencing. We disagree. The cases relied on by defendant are inapposite, and we are not told how or why the preparation of a second report would have aided the proceedings below. Defendant has not shown any basis for relief with regard to this issue.
Affirmed.
NOTES
[1] People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972).
