*1 542 PEOPLE v GUEVARA 23, 1986, January 87037. Submitted at Detroit. Decided Docket No. 21, April 1987. convicted, contendere, Esequiel plea Guevara was on his of nolo Court, robbery, Circuit James of four counts of armed Monroe Jr., J., Kelley, and was sentenced to concurrent terms of prison. twenty-five from Defendant appealed. Appeals The Court of held: guideline minimum 1. The trial court’s statement low, range was too combined with its articulation of reasons for imposed, the sentence were sufiicient to sustain a deviation respect from the to the minimum sentence. judicial 2. The sentence did not shock conscience. Affirmed. Kelly, J., M. J. dissented. He found his conscience shocked resentencing.
and would remand for Sentencing. — Criminal Law depart
It is not error for a from court to the sentenc- ing guidelines where the court is of the that a mini- guideline range inappropriate, mum sentence within the provided adequate the court states reasons for the on the record. Kelley, Attorney General, Frank J. Louis J. Lavoy, Caruso, General, Solicitor William F. Prose- cuting Attorney, and Lawrence J. VanWasshe- Prosecuting Attorney, peo- nova, Assistant for the ple. Davies, H.
James for defendant on appeal. References 2d, length Am Jur Criminal Law 538. Comment of sen- § Note.— provisions prohibiting tence as violation constitutional cruel punishment. and unusual 33 ALR3d 335. op Opinion the Court Shepherd P.J., Before: M. J. M. R. JJ. Knoblock,* plea bargain,
M. R. J. Pursuant to a Knoblock, *2 pled defendant nolo contendere to four counts of robbery, 750.529; armed MCL MSA 28.797. He was prison sentenced to concurrent twenty-five terms of from to on each count and right, appeals raising as of two issues. sentencing judge
Defendant first claims that the sentencing abused his discretion in him to a mini- range specified by mum term which exceeds the sentencing guidelines failing the in and to state reasons for this on the record. We find this claim to be without merit. plea bargain agreement,
In accordance with the exchange plea, in for defendant’s nolo contendere prosecutor proceed companion the did not on a felony-firearm charge and recommended to the court that the minimum sentence not exceed twenty-five years. sentencing guidelines speci- The range eight years. fied a minimum of five to At sentencing judge acknowledged the trial that he exceeding guidelines range: was the I notice sentencing guide report the line is five year eight to years sixty ninety-six months to — months, up and whoever wrote that set that —set guides the guide to determine that as the line sentencing range just acquainted is not with real- ity. Apparently they think robbery is some sort of game a played. that’s discipline
To the defendant in as much as he’s not impose self-discipline, been inclined to and as discourage a committing deterrent to others from offense, type this punish of and the defendant crime, committing provide and to an environ- in ment which the may defendant obtain or en- judge, sitting Appeals assignment. * Circuit on the Court of Opinion of the Court skills, the place hance vocational and to defendant in an environment where controlled substances available, protect will not society and to hope, be we tendencies, following from his criminal the imposed. noting sentence is The court that this type also prevalent community, crime is too in this
noting very light supervision the that afforded by probation deemed insufficient control his tendencies toward antisocial behavior. In each of these —for each is prison: than served dant of these the convictions defendant following
sentenced to serve the the state twenty-five years than nor less more seventy-five years. shall These sentences be
concurrently, against each the defen- days shall be credited with the number of he prior was today incarcerated .... the
Clearly,
judge
was
sentencing guidelines
range
was too low
and,
fact,
appeared
to be offended
its le-
*3
niency. Considering the fact
that defendant was
separate
convicted of four
of
counts
armed rob-
bery,
provide
all of
possible
which
for maximum
imprisonment,
sentences of life
considering
and
his
prior record
presentence
as disclosed
the
report,
including
murder,
a 1977 conviction for
we cannot
quarrel with
this conclusion.
It is
error for the
to
sentencing
depart
court
the guidelines
from
if
the court
is of the
that a minimum sen-
tence
guideline
within the
range is inappropriate,
provided the court states adequate reasons for the
v
on the record.
Fleming, 142
Mich App 119;
(1985);1 Sentencing
1 People Good, (1985). App 351; Cf. NW2d 863 Dissent M.J. P.J. Kelly, opinion, required justice court’s a sentence outside guideline range. the sentence considering Finally, gravity the the four of offen- prior convicted, of which was ses defendant his prose- record, violent and assaultive the pursuant plea cutor’s recommendation agreement to the exceeded, was not we find defendant’s imposed claim that the sentence shocks the con- to merit. science be without Affirmed. J., concurred.
Shepherd, (dissenting). M. Defendant was charged arising counts of an four out armed robbery Michigan, Erie, at a store which a register three were cash He was twenty-five individuals robbed. to terms of
sentenced concurrent from on each count plea upon a of nolo contendere.
Presumably, pleading, before defendant’s coun- computed range sel sentence from the Su- preme sentencing guidelines Court’s which would predicted have from the information report guideline range sentence minimum of (five sixty eight ninety-six years). months At sentencing, the defendant and his counsel indi- guidelines computations cated satisfaction with the objection presentence report. and had no to prosecutor presumed The silent it was so is that he also concurred. This defendant was incarcerated twenty and under years of sentence from thirteen to prison delivery in state of convictions *4 occurring charges heroin in 1983 and 1984. These trigger did quences. consecutive conse- privy private We are not to the defendant’s question attorney, conversations his but App 159 Mich M. Dissent inexorably Why is forced on the reviewer: would attorney prose- an informed defense succumb to a plea agreement cutor’s that he would recommend greatest the defendant’s minimum sentence twenty-five years be no more than when the maxi- guidelines mum recommended minimum of the is eight years? going
What’s on out there? It’s difficult to make departures. sense out of substantial sentence Be- yond peradventure much collective wisdom must gestation process way have worked its into the guidelines which the sentence were born. It estimated that the are followed in over ninety percent persist appears of the But cases. there unjustified disparity.
some
Should there be
profound practical
difference between a double
digit mandatory minimum indeterminate sentence
and a life sentence? We have ordered an eviden-
tiary hearing
App
Hurst,
155 Mich
(1986),
attempt
get
573;
judiciary respon- cannot assume sibility determining what criminals should be permanently Department incarcerated. The of Cor- parole frequent rections and the board take more temperatures. purpose What is the of an indeter- except recognize minate sentence that some convicts will turn around and some will not? Hard legislative prerogative. life has been a The lifer *5 M. J. Dissent parole requires the exercise of the board’s law judges, no matter how well discretion. Individual intentioned, arrogate to themselves cannot mortal durance. awesome arithmetic for meaningful of a more mechanism for For want inspiration, handling matters, and bereft of these going say my I’m conscience is shocked Coles, 523; 339 NW2d under (1983), by the trial court’s sentence which guidelines highest triple the recommended exceeds convincing individualized, minimum explanation an without denigrate other than to principles are themselves the and to restate which guidelines were based. criteria on which the resentencing. I would remand for