*1
Duprey
313
v
PEOPLE v DUPREY
5, 1990,
September
Docket No. 121100. Submitted
at Detroit. Decided
19, 1990,
November
at 9:00 a.m.
charged
Russell F.
was
occupied dwelling
with intent to commit a
and second-
degree
exchange
criminal sexual
conduct.
for dismissal of
charges, Duprey pled
Court,
those
in the Oscoda Circuit
J.,
Ernest,
attempted second-degree
J. Richard
sentencing hearing,
sexual conduct. At
the trial court
sentencing guidelines,
proceeded
indicated awareness of the
but
depart
guideline range
impose
greater
from the
mitigating
aggravating
sentence because of
circumstances.
appealed.
The defendant
Appeals
The Court of
held:
justified
The trial court’s
under the circum-
stances and its sentence was
to the seriousness of
the matter for
which was
1. While
court did not have the benefit of the
Supreme
opinion
People Milbourn,
Court’s
in
Affirmed. Murphy, J., dissenting, stated that case should be re- References 2d, 598, Am Jur Criminal Law 599. §§ Plea; Guilty Barganing; See the Index to Annotations under Plea Sentence and Punishment. App 313 resentencing the trial court manded to Milbourn, ade- the defendant because length and quately preserved issue of sentence raised and *2 sentencing substantially departed from the the trial court Guilty Proportionality — — Pleas. Sentences sentencing not of factors A court’s consideration guidelines is more in the result a obtained as a a conviction has been where plea or of a for dismissal of other offered court, by offense; such factors consideration of lesser absent a unlikely able to fashion that it would be is the matter for to is which Secor Gay General, J. Kelley, Frank Attorney L. Casey, Thomas General, Assis- Hardy, Solicitor Shantz, L. Barry General, Prosecut- tant Solicitor Hackney, D. and Charles Assistant ing Attorney, General, people. for the Attorney Norman, for the defendant. G. Van Daniel Murphy, P.J., JJ. Hood, Before: and Wahls attempted Hood, pled guilty P.J. Defendant conduct, MCL criminal sexual second-degree 750.92; 28.287. 28.788(3); MSA 750.52$c; MCL MSA an return, counts felony to commit a with intent occupied dwelling during conduct second-degree sexual Defen- were dismissed. the commission of a prison years to three to five dant was sentenced right. We affirm. appeals as of in this case range guidelines The of zero to twelve minimum sentence called for a therefore months, imposed was and the sentence range. of the high end three times that appeal on is sole claim Defendant’s reasons for such inadequate gave totally court from the and that this drastic Coles, 523, 549- contrary (1983). following The state- 550; 339 NW2d in imposing made the trial court ment was sentence: right, I can into considera- The Court: All take record, pluses, prior felony tion the the no record, supporting your- you’re the fact that
work self, acquaintance the victim you that had an with argument Mr. Burzlaff up with the as and come le- suggested you the Court treat has give you opportunity to show now niency and drinking, this is an isolated behavior, then, also, we have to add incident of into this met the victim but although had equation you the fact that bar, apparently, you didn’t has accompany her This wasn’t a date. She home.. explanation you no lived other than for how found out where she *3 surreptitiously if followed you her.
The Defendant: didn’t do that. You didn’t knock on the door and The Court: ask to come in and were admitted and offered a cup of coffee or a drink and various intimacies developed. You went to the
back, bedroom, screen, through gained a access a removed Further, sleeping. we window while the victim was take into consideration, going if to add we’re some things equation, you into the didn’t shake other Louie, say, hey, on the I’m her wanted You had shoulder
to on our conversation at the bar. carry prepared try identity your to to conceal So, this woman and had a ski mask on. living sitting here’s up night, at and here’s a male alone woke attempting sexually her there to violate (sic) a mask. I identify and whose said ski is concealed 'with mask, stocking cap pullover cap, sweater was, guess in it I and that’s eye holes cut that confronted with and that the situation she’s (sic) where she’d occurred no even on the street secure, in her own right a but rather have to be App home, expect where, place any place, which is a if we right to have a to be secure. It’s in our own secure, home. If we don’t feel if our home is violated, we lose all sense security, when put negatives equation these into the and then equation, thumps balance that side of the offset this don’t much the scale on the negatives. positives you urge Your to much, weigh they don’t count for considering negatives, and I’m also tak- ing was committed this case has stand here convicted consideration, into in view of the crime that here, major leniency already given you. been to You don’t of & with intent to com- b e mit felony. a or assault to with intent commit a attempted You stand here convicted of esc Second, which carries a maximum penalty of five prison, years in and this is the kind of conduct tolerate, society that a not ply tence should be does not our society does tolerate, if for no other reason than sim- others, prison deterrence to a substantial sen- This is the kind of crime is merited. It’s not a crime So, against against person. property. It’s a crime punishment aspect, sentence should have a Rehabilitation, also. though I don’t know as rehabilita- going anything. tion is came out of to do If it’s offense that drinking, drinking, if out and you may something again. well do similar Persons who commit criminal conduct while influence of alcohol or who have their under
reasoning capacities diminished due to alcohol or other drugs, ties, by possible penal- aren’t influenced case, unfortunately, particularly, but in this others, as a deterrent and as a tolerated, conduct can’t that cause an- but, guish, perhaps tional and mental physical emo- certainly
anguish,
I believe the
*4
totally inadequate. They
are
don’t
the
consider
home,
nighttime
in of the
the
victim’s
asleep,
entry while she was
the assault while she
sleeping,
your planning
attempting to
laid
conceal
that has on the
hat,
your identity
impact
this
and the
victim,
reasons,
and for these
People
v
guidelines,
departing from the sentence
Court’s
Department
to the State
sentenced
period provided by
for the maximum
Corrections
by
minimum set
this
years,
of five
and for the
law
guidelines
years. That exceeds the
Court of three
two,
that,
recognize
type
for this
by
and believe
it.
you very well deserve
of crime
Milbourn,
630;
461 NW2d
(1990),
our
Court
ruled
Supreme
"shocks
conscience”
standard
Coles,
523;
Milbourn did not address the presented situation which can be when a defen- (1) plea pleads guilty, particularly the dant when is in (2) for the dismissal of other or pleas invariably is of a Such lesser offense. will present judge the fac- may in tors that not be embodied the guideline variables. We believe that the trial ad- court’s consideration factors not dressed in the more becomes plea-based sentence such as this. Absent such sentencing judge likely consideration, the would unable to fashion a
proportionate to the matter at hand.
We have reviewed defendant’s sentence in accor- proportionality dance with the standard of Milb- peculiar pre- ourn situation guilty plea. sented defendant’s We have noted imposed the minimum was three sentence guidelines times the recommended minimum imposed years was three rather than judge explicitly However, one. the trial mitigating aggravating circumstances con- departure. Specifically, judge sidered for the articulated several factors which were deemed not adequately addressed in the We there- justi- find fore that the trial court’s was fied under the circumstances and that the sentence proportionate to of the matter was the seriousness for which the find
We also meritless defendant’s assertion guilty the trial court assumed that defendant was entering charge which was 319 by Murphy, J. Dissent clearly plea, Defendant, in his dismissed. stated prem- entry gained to the victim’s that he through by popping out a screen ises Purcell, 174 Mich Also, see a window. App 433 den lv 126, 130; NW2d (1989). *6 Affirmed. J.,
Wahls, concurred. (dissenting). defen- I that the believe J. Murphy, preserved issue raised and has dant Accordingly, appeal. length since in his of sentence substantially departed the sentence from court the guidelines, remedy appropriate is to believe for resentenc- court the matter remand ing 630; Milbourn, 435 Mich (1990). express opinion no whether 461 NW2d principle imposed violates the the sentence proportionality.