*1
App
REMAND)
(AFTER
v VAN AUKER
PEOPLE
September 12,
Lansing
69351. Submitted
Docket No.
. De-
February
appeal applied
Leave to
for.
1984.
cided
Auker,
Defendant,
by
jury in
David R. Van
was convicted
great bodily
Ingham
of assault with intent to do
Circuit Court
being
felony
and of
less than murder
fourth-time
harm
single flat
He was then sentenced to a
term of ten
offender.
following
Appeals,
years imprisonment.
The Court
a motion
defendant,
by
April
by
the
order
the
amended
sentence
dated
30, 1981,
years
eight
six
to a term of from
months to ten
years. Upon subsequent
the
consideration of
substantive issues
appeal
Appeals,
defendant in an
to the Court of
raised
the
only the
offender conviction and
the Court reversed
habitual
or,
charge
the
in the
remanded for retrial on
habitual offender
alternative, resentencing
underlying
assault
on
conviction
Michigan
Ill Mich
enhancement.
par-
Supreme
to
Court
denied
both
thereafter
leave
remand,
returned to
ties.
prior original proceeding. to the the time of He would remand resentencing improper the consideration of such matters.
Opinion op the Court Resentencing — — — 1. Criminal Law Increased Sentence Due Process. imposition United States Constitution does not bar the more severe on a criminal defendant the recon- (1) defendant; however, process requires viction the due against having successfully a defendant for at- part play tacked his first must in conviction the second (2) receives, sentence he and defendants who wish to exercise apprehension must be freed retaliatory motivation. Ap- Resentencing — — — 2. Criminal Law Increased Sentence peal. reviewing A court can determine whether or not vindictiveness played resentencing a role at the of a criminal defendant resentencing judge affirmatively if states on the record his higher sentence; imposing reasons for a such reasons must be upon objective concerning information con- identifiable occuring duct on the of the defendant after time of the original sentencing proceeding. Guilty Sentencing. — — 3. Criminal Law Pleas A defendant is entitled to be sentenced before the who plea provided that such avail- able; may be found to have been plea- available sentence the defendant where the op Opinion the Court taking judge who no circuit at the a circuit in that to act as had the sentencing. time of by Shepherd, J. and Partial Dissent Resentencing — — Sentence. Increased 4. Criminal Law defendant, improper court, resentencing a criminal considers A the in- the defendant’s sentence where matters prior defendant’s conduct is based on the creased sentence original proceeding and not on information the time of at the time of the ñrst or nonexistent which was unavailable proceeding. General, J. Louis Kelley, Attorney Frank General, Houk, D. Prose- Caruso, Peter Solicitor Blough, Appellate L. Chief Janis cuting Attorney, R. Assistant Prosecut- Toy, Charles Attorney, people. for the ing Attorney, Krogsrud), (by Defender James Appellate State *3 appeal. on for defendant
After Remand Shep- Cynar P.J., Bronson, and and Before: herd, JJ. from appeals right Defendant as
Per Curiam. third-time habitual plea-based conviction as a offender, 769.11; 28.1083. Both claims MCL MSA sentenc- here relate to error raised by ing. January on
Defendant was first convicted
bodily
great
with intent
to do
of assault
28.279,
murder,
750.84;
MCL
MSA
harm less than
offender, MCL
felony
and
fourth-time
being
a
769.12;
ten-year
flat
MSA 28.1084. Defendant’s
this Court
sentence was amended
order of
(Aft Rem)
Auker
397
Van
Opinion of the Court
30, 1981, to a term of
April
years
from six
and
months
to ten
eight
years. Upon subsequent
con
sideration of the substantive
issues
raised
de
fendant
in his
this
appeal,
Court
reversed only
defendant’s habitual
offender
violation.
Mich
(1981).
478;
NW2d
The Michigan
Supreme Court denied leave to appeal
to both
parties.
In the instant tively for his reasons stated specifically that defen- indicated sentence and dant’s misconduct original sentencing
after heavily weighed his mind. When defendant grounds his deci- on what asked to a term of sion to sentence imprisonment, replied: totally it that I based on the fact ’’The Court: charged history, you’re with looking your criminal case, in this and it’s based on being a habitual criminal And, gotten worse. your crimes have the fact that in, program you residential were certainly you left a no reason that that impressed me also. There’s by telephone at 9:00 not have been made contact could morning. your attorney. You did not see o’clock in the There and as an inmate and decision stances, 4:30, you to leave that home at no reason your status very I think that is a direct violation of very knowing I think it was a circum- you and I see no excuse for you made when left under those weighs it. Now heavily my on mind. appointment your attorney. with There’s "You had attempted you your
no verification that even to see morning you attorney that and there’s no reason for out, weighed very heavily. be and that You had a center, out. You residential chance as far as the court is concerned be were it, and I’m you blew considering that.
’’Defendant: That’s the for the increase? basis ’’TheCourt: That is of the basis for the increased sentence, along your overall behavior with criminal since the sixties.”
The record reveals that vindictiveness judge’s sentencing played no role in the decision. imposition Therefore, the sentence did process. not violate defendant’s to due that he is Defendant’s second claim on *5 Rem) (Aft v Van Auker by Shepherd, J. resentencing by judge entitled to the same who guilty plea took his because not he was sentenced judge. disagree. We plea-taking sentencing judges Both the and the visiting judges. were The judge assigned was to the circuit court for the September. month of October, in was sentenced
during which month a different judge assigned. was
A defendant
entitled
is
to be sentenced before
plea provided
who
his
is
Clark,
available.
See
(1980); People Clemons,
Mich 945
Mich
that,
Affirmed. (concurring dissenting in
Shepherd, part). It is uncontroverted that defendant left the residential home in which he was an inmate permission and that misconduct oc- originally curred after he was sentenced. As an action, immediate result of this defendant was given days a misconduct ticket and 30 confinement Department personnel. of Corrections This behavior was "identifiable which conduct” could be considered
defendant’s sentence without constitutional viola- arguably light upon tion. It health propensities”. "life, shed defendant’s
habits, conduct, and mental and moral
North Carolina v 132 by Shepherd, J. Concurrence Partial 2d 2072, 2079; 23 L Ed 711, 723; 89 S Ct improperly however, court, con- on his increased sentence original proceeding. prior the time of the duct history made known to criminal presided first at defendant’s who the trial *6 history sentencing proceeding. as a together any repeat to offender, inference be with grown had his crimes thereform that drawn or unavailable "worse”, not new information proceeding. time of that first at the nonexistent criminal be- "overall Under provide the the sixties” could since havior for an increased sentence. basis of the how unclear from the record It is much attributable in defendant’s sentence was increase improperly Such matters considered matters. to probable quantify generally and it is to are hard not attribute himself did that the portion specific to each the increased sentence to remand I therefore he considered. would factor Although resentencing.1 defen the circuit court for original requests sen dant that we reinstate Michigan to tence, little there is support remedy. T. E. Bren But see Justice such a People dissenting opinion Payne, 386 v nan’s (1971), 412 US rev’d 98-99; 191 375 NW2d (1973). Further, it 736 47; 1966; 36 L Ed 2d S Ct regard Due Process that "the has been said in this possibilities in all Clause is not offended appeal, punishment but retrial after creased (1983), Coles, 523; I light 339 NW2d In any urge the reason the trial court articulate would recognize urge I would also the trial enhanced sentence. appearing in the record for an enhanced the the been basis already relatively has for which the defendant minor infraction disciplined penal system. within the (Aft Rem) v Van Auker by Shepherd, only by pose those that a realistic likelihood of Blackledge Perry, 'vindictiveness’ 27; S Ct L40 Ed 2d prepared say Therefore, I am not that no in- permissible. crease in defendant’s sentence was agree majority I with the that defendant did not have the under the circumstances of this original judge. case to be sentenced