People v. Hansford

562 N.W.2d 460, 454 Mich. 320

• Court: Michigan Supreme Court
• Decided: May 13, 1997
• Docket: 104770, Calendar No. 7
• Status: Published

Opinions

Weaver, J.

In his appeal from a Court of Appeals decision ordering that the defendant be resentenced, the prosecutor based his arguments on the premise that this Court should overrule People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We decline to do so because the resolution of this case does not require reexamination of Milbourn. We reverse the Court of Appeals order of October 16, 1995, that vacated defendant’s sentence and ordered resentencing, and reinstate defendant’s sentence.

i

Following a jury trial, defendant was found guilty of entering an occupied dwelling without the owner’s permission¹ and receiving or concealing stolen property over $100.² Defendant then pleaded guilty of being an habitual offender, fourth offense,³ and was sentenced to a prison term of forty to sixty years.

Defendant appealed, and the Court of Appeals affirmed defendant’s convictions, but remanded for resentencing, finding the sentence of forty to sixty years to be disproportionate.

The prosecutor then applied for leave to appeal in this Court. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals for reconsideration in light of People v Cervantes, 448 Mich 620; 532 NW2d 831 (1995). The Court of Appeals issued an order finding that the sentence constituted an abuse of discretion and remanded for resentencing. The prosecutor sought leave to appeal from the order, which this Court has now granted.

n

In overturning defendant’s sentence in its original opinion, April 11, 1995, the Court of Appeals found the sentence to be disproportionate.⁴ We disagree.

We first reaffirm our holding in People v Cervantes, supra, that the sentencing guidelines do not apply to the sentencing of habitual offenders.⁵ In reviewing sentences imposed for habitual offenders, the reviewing court must determine whether there has been an abuse of discretion. Id. at 627. Applying this standard, we conclude that the trial judge did not abuse his discretion in sentencing defendant to a prison term of forty to sixty years.⁶

The Court of Appeals summed it up well when it noted that “Defendant does, to be sure, have an extensive record and a poor history of community supervision.” On October 11, 1976, he was convicted of attempted larceny from a building and sentenced to two years’ probation. On June 14, 1977, defendant was convicted of attempted receiving and concealing over $100 and was sentenced to 1.5 to 2.5 years in prison. Only two months later, on August 22, 1977, defendant was convicted of attempted larceny from a motor vehicle and sentenced to 1.5 to 2.5 years. Then on September 4, 1980, defendant was convicted of fleeing and eluding and was sentenced to a fine of $185 or nineteen days. Defendant was convicted of receiving and concealing stolen property and sentenced to six months in the Detroit House of Corrections on March 26, 1981. On August 3, 1982, defendant was convicted of two counts of receiving and concealing stolen property over $100. Defendant was sentenced to three years probation on April 15, 1985. On November 5, 1985, defendant was convicted of a violation of probation and sentenced to ninety days in jail. Next, on July 17, 1988, defendant was convicted of larceny from a motor vehicle and was sentenced to three to seven years. Defendant was then placed at a correction center in July, 1990, from which he escaped, and to which he was returned in February 1991.

Defendant was placed on parole ■ on March 31, 1992, but was listed as an absconder by July 9, 1992. Defendant was still on parole when he committed the instant offense in September of 1992. It is clear from defendant’s record that prior attempts to rehabilitate him have utterly failed, and that community supervision is not effective for him.

In addition to acknowledging defendant’s extensive criminal record, the Court of Appeals also recognized that the facts of the instant case are “particularly offensive.” While defendant’s mother was hospitalized with a severe asthma attack, defendant went into her hospital room and removed her keys from her purse. He then stole his mother’s automobile, went to her house, and took thousands of dollars worth of appliances, jewelry, and furs.

In Cervantes, supra at 627-628, we held that a trial court did not abuse its discretion in giving a “significant” sentence to an habitual offender where the trial court considered the defendant’s extensive criminal history and his potential for rehabilitation.⁷ In the instant case, the underlying felony was defendant’s eighth, which was committed while on parole from prison where he was serving a sentence for the commission of a different felony. We believe that a trial court does not abuse its discretion in giving a sentence within the statutory limits established by the Legislature when an habitual offender’s underlying felony, in the context of his previous felonies, evidences that the defendant has an inability to conform his conduct to the laws of society. The sentence in this particular case was within the limits authorized by the Legislature for an habitual offender, fourth offense, under MCL 769.12(l)(a); MSA 28.1084(l)(a).⁸ The serious nature of this crime, defendant’s extensive criminal history, and his clear inability to reform, convince us that the trial court did not abuse its discretion in imposing defendant’s sentence.

in

Accordingly, we reverse the Court of Appeals order of October 16, 1995, and reinstate defendant’s sentence.

Mallett, C.J., and Boyle and Riley, JJ., concurred with Weaver, J.

1 MCL 750.115; MSA 28.310.

2 MCL 750.535; MSA 28.803.

3 MCL 769.12; MSA 28.1084.

4 Lastly, defendant asserts that his 40 to 60 year sentence is disproportionate. We agree. The guidelines recommend a minimum sentence of 1 to 3 years for the underlying offense. The guidelines, however, are at most a reference point in assessing the proportionality of an habitual offender’s sentence. While defendant’s minimum sentence of 40 years greatly exceeds the highest recommended minimum of 3 years, the habitual statute allows for such a sentence, and indeed allows for a life sentence. Such sentences, however, should be reserved for the most egregious offenders.

Defendant does, to be sure, have an extensive record and a poor history of community supervision. Moreover, his stealing from his hospitalized mother is particularly offensive. Nonetheless, defendant’s prior record consists exclusively of larcenies and stolen property offenses, and a misdemeanor fleeing and eluding offense. His longest sentence, 3 to 7 years, was imposed in 1988. Under the circumstances, a sentence of 40 to 60 years is disproportionate and resentencing is required. [Unpublished opinion per curiam (Docket No. 165364) (emphasis added).]

5 We note that three members of this Court have held that the sentencing guidelines do not have a legislative mandate and are therefore without the force of law. See People v Mitchell, 454 Mich 145, 175; 560 NW2d 600 (1997) and Negri v Slotkin, 397 Mich 105; 244 NW2d 98 (1976).

6 The trial court initially sentenced defendant to ninety days in jail for entering without the owner’s permission and three to five years for receiving and concealing stolen property. These sentences were vacated, and the trial judge sentenced defendant to forty to sixty years in prison for being an habitual offender, fourth offense.

7 We decided that the trial court did not abuse its discretion in sentencing a defendant to ten to twenty years for breaking and entering and four to eight years for felonious assault:

[The trial court] acted reasonably by considering both defendant’s extensive criminal history and his potential for rehabilitation. The trial judge was correct in performing this analysis because “[u]nder our present framework of indeterminate sentencing, sentences are based more on an assessment of the offender than the offense.” People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987).

Moreover, the trial court in Cervantes considered the fact that the underlying crime was “serious” and that the defendant “had clearly demonstrated his lack of intent to reform by violating his probation.” Id. at 628.

8 MCL 769.12(1); MSA 28.1084(1) provides in pertinent part:

If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows:

(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person upon conviction of the fourth or subsequent offense to imprisonment for life or for a lessee- term. [Emphasis added.]

Defendant’s underlying felony, receiving and concealing stolen property in excess of $100 in violation of MCL 760.535; MSA 28.803, is a felony that carries a maximum punishment of five years in prison.