Docket 120491 | Mich. Ct. App. | Sep 19, 1990
PEOPLE
v.
SZCZESNIAK
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
Metry, Metry & Sanom (by Gilbert E. Metry), for the defendant on appeal.
Before: GRIBBS, P.J., and CAVANAGH and MARILYN KELLY, JJ.
*493 PER CURIAM.
Defendant pled nolo contendere in Detroit Recorder's Court to one count of assault of a police officer with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), pursuant to a plea bargain. Under the terms of the agreement, one count of delivery of less than fifty grams cocaine, MCL 333.7401(2)(a) (iv); MSA 14.15(7401)(2)(a)(iv), and four counts of assault with intent to murder were dismissed.
In a separate action in the Macomb Circuit Court, defendant was convicted of assault with intent to murder and felony-firearm. He was sentenced in that case to consecutive terms of thirty to forty-five years and two years.
The Recorder's Court judge concluded that he could not sentence defendant to a prison term of ten to twenty-five years determined under the sentencing guidelines because of our Supreme Court's ruling in People v Moore, 432 Mich. 311" court="Mich." date_filed="1989-05-08" href="https://app.midpage.ai/document/people-v-moore-1864278?utm_source=webapp" opinion_id="1864278">432 Mich. 311; 439 NW2d 684 (1989). As a result, the trial court deviated from the sentencing guidelines and imposed sentences of five to fifteen years and two years, to be served consecutive to the Macomb Circuit Court sentences.
On appeal by right, the people challenge the scoring of the sentencing guidelines and the trial court's ruling with respect to the applicability of Moore. We reverse and remand for resentencing.
First, plaintiff challenges the trial court's scoring of zero for offense variable No. 25, contemporaneous criminal acts. A sentencing judge has discretion in determining the number of points to be scored, provided there is adequate evidence to support a particular score. Where the established facts clearly do not permit the trial court's scoring to stand, the appellate court will intervene. People v Reddish, 181 Mich. App. 625" court="Mich. Ct. App." date_filed="1989-08-10" href="https://app.midpage.ai/document/people-v-reddish-2055063?utm_source=webapp" opinion_id="2055063">181 Mich. App. 625, 628; 450 NW2d 16 *494 (1989). Here, where defendant was originally charged with five contemporaneous crimes, there is no evidence to support a zero score for OV 25.
Finally, subsequent to the sentencing in this case, our Supreme Court ruled that the trial court is not restricted by Moore when imposing consecutive sentences. People v Harden, 434 Mich. 196; 454 NW2d 371 (1990). Although each sentence, examined independently, must comply with the dictates of Moore, the cumulative length of the sentences can exceed the maximum punishment allowable by law for any one of the offenses. Accordingly, the trial court incorrectly considered defendant's Macomb Circuit Court sentence when imposing sentence in this case.
Reversed and remanded.