340 N.W.2d 852 | Mich. Ct. App. | 1983
PEOPLE
v.
STEVENS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul L. Maloney, Prosecuting Attorney, and Angela Baryames, Assistant Prosecuting Attorney, for the people.
Jesse & Jesse (by James K. Jesse), for defendant on appeal.
Before: V.J. BRENNAN, P.J., and D.E. HOLBROOK, JR., and J.R. ERNST,[*] JJ.
*357 PER CURIAM.
Defendant, who had originally been charged with armed robbery, MCL 750.529; MSA 28.797, and two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), pled guilty to one count of first-degree criminal sexual conduct with the agreement that the other two charges would be dismissed. Defendant was sentenced to life imprisonment and appeals as of right.
Defendant contends that the application of Proposal B, MCL 791.233b; MSA 28.2303(3), in this case to bar parole renders his life sentence cruel and unusual punishment under the Eighth Amendment to the Constitution of the United States. Proposal B provides that persons convicted of the crimes enumerated in the proposal, one of which is first-degree criminal sexual conduct, shall not be eligible for parole until the expiration of the minimum term imposed by the court. MCL 791.233b(w); MSA 28.2303(3)(w). Because no minimum term may be set when life is the maximum, MCL 769.9(2); MSA 28.1081(2), the minimum term of a life sentence for the purposes of Proposal B is, in effect, life imprisonment. People v Cohens, 111 Mich App 788, 795-796; 314 NW2d 756 (1981). As thus construed, Proposal B mandates that defendant serve the full life sentence without eligibility for parole in ten years as provided for by MCL 791.234(4); MSA 28.2304(4). Cohens, supra.
The sentence in the instant case falls within the statutory limits prescribed by the Legislature and lies within the discretion of the trial judge. Where this is the case, this Court is without power to review the exercise of the trial judge's sentencing *358 discretion.[1]People v Burton, 396 Mich 238, 242-243; 240 NW2d 239 (1976); Cummins v People, 42 Mich 142, 144; 3 NW 305 (1879); People v Brandon, 46 Mich App 484, 489; 208 NW2d 214 (1973); People v Girard, 18 Mich App 593, 595; 171 NW2d 567 (1969).
Moreover, we find that the sentence fits the proportionality test, the decency test and the policy factors test set forth in People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). Here the crime for which defendant was sentenced was one of violence, extremely harmful to another person, and committed during a midnight invasion of a home. Under the circumstances, we cannot say the harshness of the sentence "shocks the conscience" of the Court to the extent that it should be disturbed, despite the fact that defendant is not eligible for parole.
Defendant argues next that the trial judge sentenced him to life based on the erroneous belief that defendant would be eligible for parole in ten years under MCL 791.234(4); MSA 28.2304(4). Although the trial judge did express his belief that defendant would be eligible for parole in ten years, he specifically stated that he would sentence defendant to life even if Proposal B mandated that defendant serve the full sentence, due to the aggravated nature of the crime involved. The trial judge's mistaken belief therefore had no bearing on defendant's sentence. The trial judge's erroneous belief that the minimum sentence for first-degree criminal sexual conduct is two years also *359 had no bearing on the sentence that defendant ultimately received. See People v Thompson, 120 Mich App 361; 327 NW2d 479 (1982); People v West, 113 Mich App 1; 317 NW2d 261 (1982).
Defendant's next contention is that the trial judge considered items contained in the presentence report that the defendant denied. Review of the record indicates that the trial judge did not consider either the officer's account of the incident or the possibility that defendant was guilty of the first-degree criminal sexual conduct charge that was dropped when defendant pled guilty. We find that the trial judge complied with the mandates of People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), rev'd in part on other grounds 400 Mich 1; 252 NW2d 779 (1977), and consequently decline to vacate the sentence on this issue. In addition, the trial judge did not err in considering defendant's admission contained in the presentence report that he committed the armed robbery for which he was charged, as defendant failed to contest the accuracy of this information. McIntosh, supra, pp 445-446.
Finally, defendant claims that the sentence imposed did not consider defendant's individual history, personality and other basic factors applicable to the defendant. Defendant's contention is without merit.
The trial judge commenced the sentencing proceeding by stating that he had carefully reviewed the presentence investigation report, which contained information favorable to defendant. The trial court is not required before pronouncing sentence to address itself to the specific reasons for the particular sentence imposed where from the whole record the factual basis for such sentence is clear. People v Green, 113 Mich App 699, 707; 318 *360 NW2d 547 (1982). Similarity of sentences alone among diverse participants in a common criminal enterprise is insufficient to raise an inference of failure to individuate a sentence.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The Supreme Court has recently granted leave in three cases on the issue of whether that Court should adopt and implement a procedure for appellate review of criminal sentences and, if necessary, overrule People v Cummins, 42 Mich 142; 3 NW 305 (1879). People v Waits, 412 Mich 914 (1982); People v Coles, 412 Mich 917; 317 NW2d 189 (1982); People v Gonzales, 412 Mich 917 (1982).