*1 v Jeff Davis JEFF PEOPLE v DAVIS 10, 1992, September De- at Detroit. Docket No. 150160. Submitted denied, 2, 1992, appeal at 9:40 a.m. Leave to cided November —. Mich Davis, Jr., pleaded Recorder’s nolo contendere in the Detroit Jeff Carnovale, J., Court, charge to a of assault with Dominick R. charge possession of a murder and to a intent commit felony. The court sentenced firearm the commission of a years’ imprisonment to one to ten for the assault the defendant mandatory two-year térm for and to a consecutive conviction imposing felony-firearm conviction. In the sentence for conviction, departed from the assault the court guidelines’ minimum term of seven to fifteen recommended years, departure, and took note of articulated reasons for the mandatory two-year term for the effect of the consecutive length felony-firearm on the cumulative of incarceration. prosecution appealed, claiming that' the sentence for assault principle proportionality. conviction violates the Appeals The Court of held: proportionality requires 1. The that a sentence be
proportionate surrounding to the circumstances clearly the offender. The record in this case reflects that carefully those factors. considered considering mandatory The trial court did not err in consecutive sentence for when con- pur- cluded that a incarceration would not serve rehabilitation, punishment, poses of or deterrence. It would require a defeat the disregard mandatory sentence underlying fashioning felony. Affirmed. Taylor, J., dissenting, stated that the cumulative effect of References 2d, 551, 552, 554,
Am Jur Criminal Law 559. §§ Sentences; Consecutive See the ALR Index under Concurrent and Rules; Law; Punish- Procedure Sentence and Criminal ment. Criminal Opinion of the Court in should be considered sentences proportionality, principle whether each sentence satisfies the felony- that consideration of reducing the sentence for the *2 legislative the the intent behind circumvents statute. Felony-Firearm. —
Sentences possession sentencing person a of and of of a convicted a may felony, during court the commission of that a fel- sentence for the consider ¿he ony-firearm in (MCL 750.227b; 28.424[2]). MSA Attorney Kelley, General, L. Thomas Frank J. Casey, O’Hair, General, John D. Prosecut- Solicitor ing Baughman, Attorney, Timothy A. of Chief Training, Appeals, Research, and Don W. and Principal Attorney, Appeals. Atkins, appeal. Lorence, M. for the Gerald defendant Hood, P.J., JJ. Taylor, Before: and and Connor pleaded nolo contendere J. Defendant Connor, murder, to to count of with intent one assault posses- 28.278, 750.83; MCL one count of MSA and a sion felony, a firearm the commission of 28.424(2). 750.227b; The trial MCL imposed years a of one to ten conviction and noted that the manda- assault tory years con- consecutively pursuant stat- viction would run ute. sentencing guidelines
The
assault convic-
range tion recommended a minimum sentence
imprisonment.
appeal,
years’
seven to fifteen
On
prosecutor
of-
the seriousness of the
stresses
argues that,
im-
because the sentence
fense
posed
substantially
by the
lower
trial court was
guidelines,
than that
recommended
Jeff Davis
op
Opinion
the Court
proportionality”
"principle
violates
sentence
announced
Among court’s reasons 196 Opinion of the Court age (sixty-six departure advanced were defendant’s previously years); life, the absence his crime-free lengthy problem, any riage (recently mar- his substance abuse thirty-eight years), after widowed thirty- history (pensioned after work and excellent Corporation). Chrysler years The court three version defendant’s also took acknowledged although that defen- offense, exculpa- might tend to be somewhat dant’s version opinion tory.1 that court stated its period as a was of incarceration punishment, and would as to others or deterrent purpose The court of rehabilitation. not serve also reiterated its too I have to guidelines were that
belief years high "in view of the felony-firearm.” give you on the provided the trial court find the reasons guide- departure justify from to crafting appro- legally adequate. lines to be priate the defen- must consider sentence the court background. case, defendant’s In this dant’s description gave following in the of the offense Defendant investigation report presentence to the court: submitted girlfriend her male and one of Janice Warren’s Emma smoking ran They crack cocaine and were friends came over. out of crack girlfriend’s to me money. any Janice more [sic] and didn’t have boyfriend to his mother’s me to take him over asked boyfriend’s gave buy get money [sic] some. And her some got go money buy gas When I decided not to back. and he they and Janice he wasn’t with me found out
back home go girlfriend ready girlfriend got was mad and her and her back, got girlfriend and when I [sic] her home home. I took Janice was the meantime she any money. In angry I have at me because had didn’t my already I had 12 stitches on cut me. my I had marks on right my left arm and hand and 5 stitches got She mad with a butcher knife. chest which was done *4 things. things up I went and and break started to throw by my got her into gun and tried to scare left to me father that was porch. then stopping. She Then I walked out on high my crack She was so of own house. locked me out .when ducking gun. the door she pulled behind Instead of her I went in front of It was a she was shot. the door and that’s how pure accident. 601 People Jeff Davis v op Opinion the Court marriage, history, age, of criminal and lack work sup- mitigating history that factors were relevant Fleming, departure. People ported v a downward (1987). 266 423-424, 17; 410 NW2d 408, n 428 Mich not err court did the trial also find that the manda- of the effect tory defendant felony- necessarily as a result serve would felony-firearm conviction A conviction. firearm may or committed had unless the defendant not be although felony, attempted it is to commit of be convicted that the defendant Burgess, felony. People 305, underlying v has a defendant When 310; 353 NW2d un- and the convicted of both been felony, derlying defeat we believe would require proportionality principle the sentenc- prison disregard ing term fashioning conviction felony.2 clearly reflects The record carefully surround- considered the circumstances ing and deter- the offender both (1991), Warner, 734; App 190 Mich 476 NW2d charged another while one and committed was defendant pled guilty awaiting disposition the first. The defendant final appeal, On this consecutive sentences. offenses and received both sentences nature of the defendant’s held that the cumulative Court were his sentences to the determination whether was irrelevant found that both standard. The Court under the Milboum excessive sentences neither offended the and, thus, range guidelines’ standing within the alone were proportionality. See also Kent, 208; 486 NW2d First, clearly distinguishable. Court are We believe these cases statute, persons designed addressing to "deter one a different was awaiting committing charged final another while from with one 28.1030(2). Warner, 768.7b; disposition the first.” MCL propor- Second, question supra, p was whether 736. the critical violate could be found to on the defendant tional sentences the court ordered when the aggregate punish- consecutively and the sentences be served allowable exceeded the maximum for both the offenses ment either of the individual this Court. issue is before convictions. Neither *5 App 597 196 Mich
602 by Taylor, J. Dissent was not sentence mined that a for punishment, deterrence, See or rehabilitation. People 314 586, 592; 194 NW2d Snow, v 386 (1972). say in trial court erred We cannot ignore refusing incarcera- the defendant’s any years "preceding period term of two tion for a imprisonment the conviction upon significant felony”3 effect have some would necessity might negate elderly offender and an lengthy incarceration. for additional Affirmed.
Hood, P.J., concurred. Taylor, (dissenting). I would hold that J. sentencing judge in erred the effect of the required a result is to serve as
sentence defendant
possession of
his conviction of
imposing
in
a sentence.
the commission of a
recently held that
the cumula-
This Court has
sentences is irrelevant
tive nature of a defendant’s
are exces-
in
whether his sentences
App
People
734, 736;
Warner,
476
190 Mich
sive.
v
(1991);
People Kent,
NW2d
206,
I am not convinced
208; 486 NW2d
distinguishing
by
majority’s
these
reasons for
bar,
find that we
cases from the case at
and would
and Kent.
are bound Warner
disagree
majority’s
contention
I also
defeated
that
when a
sentencing judge
fashions
consid-
for an
without
ering
two-year felony-firearm sen-
the consecutive
judge
Supreme
has held that a
tence. Our
Court
disciplinary
may
a reason
credits as
not consider
MCL
750.227b(2);
28.424(2)(2).
v Jeff Davis
by Taylor,
J.
Dissent
enhancing
would
do so
a sentence because
passing
Legislature’s purpose frustrate
Fleming,
act.
reduction
sentence
Mich
I would
428;