Lead Opinion
Each defendant has appealed from his resentencing to 65 to 150 years of imprisonment. We have consolidated their appeals and affirm the sentences imposed.
On August 29, 1985, defendants robbed and murdered Paul Hutchins, an off-duty Michigan State Police trooper. Defendants were convicted of second-degree murder, MCL 750.317; MSA 28.549, and armed robbery, MCL 750.529; MSA 28.797.
Defendants were resentenced by Judge Karen Fort Hood on October 13, 1995. Judge Hood imposed 65-to 150-year sentences. Defendants now appeal their most recent sentences, arguing that the sentences violate the law of the case doctrine and are disproportionate.
Assuming arguendo that the law of the case doctrine can apply to a resentencing performed by a different judge,
One of the reasons cited by the trial court for giving Phillips and Frazier 65- to 150-year sentences was their deplorable prison records. The record indicates that Phillips had at least ten prison misconducts after the first resentencing, including attempted bribery of a corrections officer, disobeying a direct order, being out of place, unauthorized occupation of a cell, insolence, substance abuse, and testing positive for thc.
Defendant Robinson’s prison record after the first resentencing apparently included only three relatively minor misconduct tickets. The prosecutor correctly conceded at the second resentencing that Robinson’s prison record certainly was not as dismal as those of the other defendants. We will assume for the sake of argument that the facts did remain materially the same with regard to Robinson. Notwithstanding Robinson’s better prison record after the first resentencing, we still affirm Robinson’s sentence.
Particularly in criminal cases, the law of the case doctrine is not inflexible and need not be applied if it will create an injustice. People v Herrera (On Remand),
Even in civil cases, the law of the case doctrine has sometimes been described as discretionary rather than mandatory. Bennett v Bennett,
The law of the case doctrine is a weak sister of the doctrine of preclusion, which includes the principle of res judicata. Yet, res judicata will not apply when it would result in inequitable administration of the laws. Young v Detroit City Clerk,
On the facts of this case, there are several reasons not to apply the law of the case doctrine. First,
Where it is clear that the Supreme Court would affirm the present sentences (given the Supreme Court’s most recent decisions reviewing lengthy sentences discussed below), no valid purpose would be served by robotic adherence to a doctrine designed to promote judicial efficiency, not detract from it so as to waste scarce judicial resources. Accordingly, it would be inappropriate for this Court to force the Supreme Court to do that which we know we ought to do ourselves. Mikedis v Perfection Heat Treating Co,
Further, since the most recent prior decision in these cases by this Court, the applicable legal principles of sentence review have been substantially altered. Justice Riley’s dissent from the denial of leave to appeal this Court’s earlier opinion stated that she would have remanded the case for reconsideration in light of People v Merriweather,
We are satisfied that Robinson’s 65- to 150-year sentence is proportionate, considering the offense and the offender. Moreover, it would create an injustice to remand for a fourth sentencing and imposition of a shorter sentence. Mindful of the abjuration that a resentencing cannot be validly ordered unless the initial sentence is invalid, Mitchell, supra, it would be both unjust and in excess of our jurisdiction not to affirm a proportionate sentence. The law of the case must yield to this overriding interest. Two different circuit court judges have indicated that a sixty-five-year minimum sentence is proper. An appellate court ought to look long and hard before it finds that such a sentence is disproportionate. Under current sentence review standards, we have no difficulty concluding that this 65- to 150-year sentence is proportionate to the offense and the offender. Merriweather, supra; Lemons, supra. Robinson’s sentence is therefore affirmed.
Defendants also challenge the scoring of their sentencing guidelines. However, none of the assertions made are cognizable appellate issues. Mitchell, supra
Finally, we reject Frazier’s claim that he was sentenced on the basis of inaccurate information that was not disclosed before trial. The information that Frazier claims was undisclosed was in fact disclosed in the prosecutor’s sentencing memorandum that was filed before sentencing. Frazier did not object to the information in this memorandum at sentencing. This issue is waived. People v Sharp,
The prosecutor does, however, concede that certain information in the presentence report, which Frazier objected to at sentencing, should have been, but was not, deleted. Therefore, Frazier is entitled to a remand for the sole purpose of having certain challenged material deleted from his presentence report.
We affirm the sentences imposed and remand solely for the deletion of material from Frazier’s presentence report.
Notes
The Supreme Court affirmed defendants’ convictions. People v Frazier (After Remand),
We note that Moore is no longer good law. See People v Kelly,
The order denying leave to appeal indicated that Justices Boyle and Weaver would have reinstated the defendants’ sentences and that Justice Riley would have remanded for reconsideration in light of People v Merriweather,
We would be more receptive to invoking the law of the case doctrine if the sentences we are reviewing had not been imposed by a different judge. See People v Mazzie,
Cf. People v Jones,
Several of these misconducts are crimes and if prosecuted as such would have resulted in additional prison time.
We also note that Phillips has two other apparently unrelated second-degree murder convictions and this Court has already affirmed a 75- to 150-year sentence for one of those other convictions. People v Phillips,
Curiously, and inexplicably, the same four justices who signed the majority opinion in Locricchio asserting the proposition that the law of the case is not a limit of a court’s power, for which only federal authorities were cited, said precisely the contrary in Johnson v White,
An apparent reference to People v Pohl,
We note that we are not alone in reaching this conclusion. In People v Barclay,
Supreme Court peremptory orders are binding precedent when they can be understood. See People v Crall,
Dissenting Opinion
(dissenting). I respectfully dissent.
Defendants were originally sentenced to terms of 150 to 300 years’ imprisonment for their murder convictions and to terms of 30 to 60 years’ imprisonment for their armed robbery convictions. In defendants’ original appeal, this Court affirmed their convictions, but remanded for resentencing with regard to the murder convictions on the ground that their 150-year minimum sentences violated People v Moore,
After reviewing the record in this matter, considering the nature of the offense and the background of the offenders, we believe that the trial court abused its discretion in imposing the 65- to 150-year sentences. Although child assassins now regularly appear in our courts, there is no question that this was an outrageous offense and that a most severe sentence was warranted. Had the sentences been life sentences we would have affirmed posthaste, unanimously. Although a departure was appropriate for each, the extent of the departure was Draconian. The guidelines, recognizing different degrees of culpability, differed for each defendant. Under these sentences, three generations will have come and gone before the effects of defendants’ punishments are assessed and the rehabilitative effects, if any, are considered. Cf. People v Rushlow,437 Mich 149 ;468 NW2d 487 (1991). The trial court abused its discretion in imposing these sentences. [People v Phillips (On Rehearing),203 Mich App 287 , 291;512 NW2d 62 (1994).]
We ordered resentencing before a different judge in order to preserve the appearance of justice. Id. at 292. The prosecutor applied for leave to appeal, which our Supreme Court denied. People v Phillips No 1,
The primary issue in all three appeals is whether each defendant’s sentence is proportionate. I believe resolution of this issue is governed by the law of the case doctrine. “Under the law of the case doctrine, an appellate court’s determination of law will not be differently decided on a subsequent appeal in the same
The majority asserts that defendants Phillips’ and Frazier’s prison records did not remain materially the same between the first and the second resentencing. I disagree. While both Phillips and Frazier were cited for prison misconduct between the first and the second resentencing, their misconduct did not materially alter the facts presented at the first resentencing; Phillips and Frazier had both already been cited for prison misconduct on numerous occasions before the first resentencing, and their behavior had neither worsened nor improved.
First, whether the Supreme Court would affirm defendants’ sentences is an open question. Indeed, the Supreme Court had the opportunity to reverse our previous decision, and declined. People v Phillips No 1,
Second, the applicable law has not changed since we last reviewed this case. The applicable standard under Milboum
This brings me to my primary concern in this case. The majority concludes that it would “work an injustice” to remand this case for resentencing. This conclusion is premised on the majority’s belief that the sentences in this case are proportionate. I do not question the sincerity of that belief. In my experience, proportionality can never be pinned down, and judges will often disagree whether a given sentence is proportionate and, thus, will disagree whether that sentence constitutes an abuse of discretion. The problem in this case is that another panel of this Court has already reviewed the proportionality of these sentences. That panel found them disproportionate, and remanded for resentencing. The prosecution sought leave to appeal, and the Supreme Court denied its request. The majority simply disagrees with the prior panel’s conclusion. I find no authority authorizing the majority’s refusal to recognize the prior opinion in this case.
In my view, a final decision of one panel of this Court should not be subject to reconsideration by another panel. Indeed, allowing such review leaves every decision open to attack indefinitely. Preventing such uncertainty is precisely the purpose of the law of the case doctrine. Indeed, the Supreme Court has recognized the need for consistency in our opinions
Under these circumstances, I would remand for resentencing for the reasons stated in Phillips (On Rehearing). The trial court should have considered each defendant individually. Defendants have different backgrounds, which is reflected in different Prior Record Variable scores for each of them and in a different guidelines’ range for defendant Robinson. These differences did not necessarily require different sentences, but the trial court should have taken them into consideration. While the panel in Phillips (On Rehearing) already approved a departure for each defendant, Phillips (On Rehearing),
Defendant Frazier argues that we should remand for resentencing before a different judge. In order to preserve the appearance of justice, I would be compelled to agree. See People v Evans,
I would vacate defendants’ sentences for their second-degree murder convictions and remanded for resentencing before a different judge.
Moore required a trial court to “fashion a sentence that a defendant . . . has a reasonable prospect of actually serving.” Moore, supra at 329. As the majority properly notes, Moore is no longer good law.
At this point, this case began an appellate track that is unrelated to the sentencing issues in the current appeals: After our decision affirming defendants’ convictions, defendants applied for leave to appeal. In lieu of granting leave, the Michigan Supreme Court remanded to this Court for reconsideration. People v Robinson,
Phillips’ presentence investigation report indicates that he “still seems to have a pattern of misconduct that has remained consistent throughout his incarceration.” Frazier’s presentence investigation report indicates that he “incurred (7) major misconducts including one (1) Assault and Battery” during his first two years of incarceration, and four major misconducts, including another assault and battery, over the next six years.
People v Milbourn,
The Supreme Court in an unpublished order entered December 6, 1994 (Docket Nos. 99708-99710), originally held leave in abeyance specifi
Indeed, where the facts in this case are unchanged, the majority’s refusal to follow Phillips (On Rehearing) could be viewed as a violation of this court rule.