AFTER SECOND REMAND
This сase is before this Court for a third time. On January 30, 1986, following a jury trial in the Eaton Circuit Court, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549. Defendant was sentenced on June 23, 1988, to a term of forty to sixty years in prison. In
People v Fisher,
Subsequently, we granted defendant’s motion for peremptory rеversal. Upon review, we found that the sentencing court’s rationale for the imposed sentence was "totally inappropriate, and derogated] the bases for sentence reform which underlie the promulgation of the sentencing guidelines.” Id. Thus, we remanded defendant’s case for rеsentencing before a different circuit court judge. Id.
On May 26, 1989, defendant was sentenced a *601 third time to twenty-five to fifty years in prison. The defendant has again appealed, and we once again set aside defendant’s sentence and remand this case for resentencing before yet another circuit judge.
In this appeal, defendant first argues that the sentencing court erred in failing to delete from the presentence investigation report statements made by defendant’s ex-wife. We agree.
Defendant’s murder conviction arose from the stabbing death of William Tappert, an acquaintance of defendant’s thеn estranged wife, Mary Fisher, which occurred at the residence defendant and his wife once shared. The challenged statements made by defendant’s estranged wife, as reported in the presentence report are as follows:
(1) [Defendant]: "Is your fucking boyfriend here? Tell him to come in here so I can stick him a couple of times.”
(2) She started to cry and asked [defendant], "Did you stab him?\ to which he replied, "Fuck yes I stuck him.”
(3) Mary followed [defendant] out of the house and [defendant] told her to tell the police that Tappert had fallen into the knife. [Emphasis added.]
We note initially that defendant concedes that the second statement was not a privileged communication because of the presence of a third party (Ms. Fisher’s son) when the communication was made. Thus, we will only consider the admissibility of the remaining two statements.
When defendant was originally sentenced in 1988, the sentencing judge granted defendant’s motion to strike Mary Fisher’s comments from the presentence report, pursuant to the spousal privilege doctrine. Hоwever, when this matter came *602 before a different judge on the second remand, Mary Fisher’s statements were still in the presentence report and again the statements became the subject of a motion to strike, this time with a different result.
Defendant and Mary Fisher were divorced during the period bеtween the first and third sentencing proceedings. During the third sentencing hearing, in response to defendant’s motion to strike Ms. Fisher’s second and third statements, the court concluded that the spousal privilege terminated at the divorce and that, therefore, the statements were not barred by the spousаl privilege doctrine. Defendant further argued that the statements were inadmissible as hearsay; however, the court admitted the statements pursuant to MRE 1101(b)(1), (3).
The spousal privilege doctrine is codified in this jurisdiction, and this Court has held:
MCL 600.2162; MSA 27A.2162 contains two distinct privileges. The first privilege, the spousal privilege, bars one spouse from testifying fоr or against the other spouse without the other spouse’s consent where the witness and the spouse are married at the time of trial. The second privilege, the conñdential communication privilege, bars one spouse from testifying as to any communications made by one to the other during the marriage without the consent of the other spouse. The communication privilege applies whether the testimony is sought during the marriage or afterwards, as long as the communication occurred during the course of the marriage. [People v Zak,184 Mich App 1 , 17;457 NW2d 59 (1990). Citations omitted. Emphasis added.]
Thus, in Michigan, we distinguish two types of marital privileges: a spousal privilege, which precludes a spouse from testifying against the other *603 spouse during the marriage and does not survive the dissolution of the marital relationship, and a confidential communications privilege, which is absolute and precludes a spouse from testifying with regard to any confidential communication that occurred during the marriage irrespective of a subsequent divorce.
After a careful review of the record, we conclude that the sentencing court erred in determining that the confidential communications privilege did not survive defendant’s divorce. Therefore, the third statement at issue, which was a request by dеfendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege. An element of confidentiality is implicit in a request to tell a lie.
During the sentencing procedures, the sentencing court ruled that while it would consider the second and third statemеnts for sentencing purposes, it would not consider the first statement. Specifically, the court stated that with the exception of the second and third statements, "I can say that [the remaining statement is] her opinion and her version versus his version and it would not affect the outcome of the sentenсe of this court.” However, the first statement was not deleted from the presentence report.
Our court rules provide that if the sentencing court finds merit in a challenge to information contained in the presentence report, the court is not to take the challenged information into account in sentencing, and "it must direct the probation officer to correct or delete the challenged information in the report . . . .” MCR 6.425(D)(3) (a). Here, because the sentencing court clearly indicated that it would not use Mary Fisher’s first statement for sentencing purposes, consistent with the court rule, that statement should have been
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stricken from the presentence report.
People v Newson (After Remand),
Thus, because of the error in sentencing attributable to the sentencing court’s reliance on the statement barred by the confidential marital communications doctrine and the failure to strike from the presentence report challenged information that the court determined it would not use in imposing defendant’s sentence, we vacate defendant’s sentence and instruct the sentencing court to delete Mary Fisher’s first and third statements from the presentence report.
In a related issue, defendant argues that although he was conviсted of second-degree murder, the sentencing judge made statements at the sentencing hearing that indicated his belief that defendant’s actions were premeditated. In other words, defendant argues that the sentencing court erroneously sentenced him for a charge of which he was acquitted, namely, first-degree murder.
During the sentencing hearing, in reliance upon Mary Fisher’s first statement, as reported in the presentence report, the sentencing court stated as follows:
I also made some findings that [defendant] intended to stab [the victim]. There’s no question in my mind, it was intentional.
* * *
I spelled it out thаt when [Mary Fisher] — on page 4, where there’s a statement by her that, "Is your fucking boyfriend here? Tell him to come out here so I can stick him a couple of times.” That’s almost premeditated talk. Most importantly then when you get on page 5, when she asks, "Did you stab him?” He replied, "Fuck yes, I stuck him.”
*605 That’s intentional. Thаt’s gross. That’s not an accidental matter.
We simply note that the information utilized by the sentencing court in reaching the conclusion that the murder for which defendant was convicted was premeditated is the same information that the sentencing court ruled would not be used in considering an apprоpriate sentence for defendant. On remand, the first statement must be stricken from the presentence report.
Next, defendant contends that the retroactive application of the revised sentencing guidelines to the sentence on appeal here was a violation of his constitutional right to due process. Specifically, defendant argues that because he was resentenced twice as a result of the court’s errors, and despite the fact that the second sentence was shorter and within the revised minimum sentencing guidelines range, it is simply unfair for him to now be subjected to a harsher recommended sentence. In sum, defendant argues that he should not be penalized because of prior errors attributable to the circuit court. We agree.
The revised guidelines, which became effective on October 1, 1988, were not applicable when dеfendant was first sentenced. Under the original guidelines, the recommended minimum sentence range was seven to sixteen years; however, under the new guidelines, the recommended minimum sentence range is ten to twenty-five years.
While Administrative Order No. 1988-4,
In this state, an accused is guaranteed the right to appeal his sentence, Const 1963, art 1, § 20, and the United States Supreme Court has observed:
"[Pjenalizing those who choose tо exercise” constitutional rights, "would be patently unconstitutional.” And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights.” . . .
A court is "without right to . . . put a price on an appeal. A defеndant’s exercise of a right of appeal must be free and unfettered. . . .”
"This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can оnly impede open and equal access to the courts.” [North Carolina v Pearce,395 US 711 , 724;89 S Ct 2072 ;23 L Ed 2d 656 (1969). Citations omitted.]
Here, after careful review and consideration, we conclude that the errors attributable to the circuit court should not result in defendant’s facing the
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possibility of a harsher sentence pursuant to the revised sentencing guidelines. If a more severe sentence is indeed imposed on remand, it must be for other reasons. See
People v Mazzie,
In
People v Milbourn,
We believe that the gradation of recommended sentencing ranges within the guidelines indicates not only thаt the full statutory range of possible sentences is being used, but also that the recommended ranges increase as the factors that are adequately represented in the guidelines become more serious. For this reason, we believe that it is safe to assume that in the eyes of the vast mаjority of trial judges who have chosen to impose sentences within the guideline ranges, the guidelines reflect the relative seriousness of different combinations of offense and offender characteristics. [Id., p 658.]
Nevertheless, the Court further observed:
Conceivably, even a sentence within the sentencing guidelines could be an abuse of discretion in *608 unusual circumstances. . . . Just as the guidelines may not be a perfect embodiment of the principle of proportionality, so too may a sentence within the guidelines be disproportionately severe or lenient. Thus . . . the key test is whether the sentence is proportionаte to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range. [Id., p 661. Citations omitted. Emphasis added.]
In the instant case, the sentencing court did not have the benefit of the Milboum decision at the time of sentencing; however, we are assured that on remand the sentencing court will imрose a sentence consistent with the principle of proportionality as set forth in Milbourn.
Finally, in light of the incidents that occurred below on remand and were brought before this Court in this appeal, we conclude that it is necessary for us to make sua sponte, a determination with regard to whеther defendant should be resentenced before yet another circuit court judge.
In determining whether resentencing should take place before a different judge, this Court applies a tripartite test: (1) whether the original judge reasonably would be expected upon remand to have substаntial difficulty in putting out of mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
People v Evans,
Viewing defendant’s sentence in light of the *609 applicable considerations, we conclude that resentencing should take place before a different judge.
Reversed and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.