People v. Kreger

543 N.W.2d 55, 214 Mich. App. 549, 1995 WL 756138

• Court: Michigan Court of Appeals
• Decided: December 15, 1995
• Docket: Docket 176221
• Status: Published

Opinions

Mackenzie, J.

Defendant pleaded guilty of unarmed robbery, MCL 750.530; MSA 28.798, and was sentenced to six to fifteen, years’ imprisonment. He appeals as of right, raising several allegations of error pertaining to his sentencing. We affirm.

On July 17, 1993, the sixteen-year-old defendant and two friends robbed two other youths of a $5 baseball cap. Defendant and his friends approached the victims, identified themselves as members of the "Aces High” gang, and demanded the cap. The victims initially refused to relinquish possession. One of defendant’s friends, Richard Matzke, threatened, "Why don’t we just shoot [you] and take it from you?” A victim responded, "Well, I don’t see a gun.” At that point, Matzke pulled several bullets out of his pocket and stated, "I don’t carry this [sic] for nothing.” The same victim then stated, "I still don’t see the gun.” Defendant then produced what appeared to be a small handgun, at which time , the victims relinquished the cap. The parties later stipulated that the "handgun” was actually a cigarette lighter fashioned to look like a gun. Defendant subsequently pleaded guilty of unarmed robbery.

Defendant brings four allegations of sentencing error. First, he contends that Offense Variable 2, physical attack or injury, was scored incorrectly. The sentencing court scored ov 2 as twenty-five points, finding that the victim had been "subjected to terrorism.” "Terrorism” is defined in the guidelines to be "conduct that is designed to increase substantially the fear and anxiety that the victim suffers during the offense.” Michigan Sentencing Guidelines (2d ed), p 99. This Court has held that scoring done pursuant to the sentencing guidelines for which there is any supporting evidence will be upheld on appeal. People v Watkins, 209 Mich App 1, 5; 530 NW2d 111 (1995).

In the instant case, we believe that Matzke’s display of the bullets, which action is properly imputed to defendant as a participant in the crime, was designed to increase the apprehension of the victims in an attempt to coerce them into relinquishing the cap. Therefore, because evidence supports the sentencing court’s scoring, we uphold it. Id. While defendant argues that the victims were not "terrorized,” ov 2 is properly scored as twenty-five where conduct designed to substantially increase fear and anxiety exists. It does not appear necessary that the victim actually be terror-stricken. Further, we reject defendant’s argument that the apparent use of a firearm, which was reflected in the scoring of Offense Variable 1, aggravated use of an instrument fashioned to appear to be a firearm, somehow encompasses the display of the bullets. Defendants and his friends first threatened the victim with bullets, and then increased the threat by brandishing the cigarette lighter fashioned in the shape of a gun. These distinct actions were properly reflected in the scoring of the distinct offense variables of ov 1 and ov 2.

Defendant argues that the trial court erred as a matter of law in "tripling the guidelines minimum.” Defendant is incorrect. First, the putative authority advanced by defendant in support of his assertion does not stand for this proposition, and we are aware of no rule of law limiting a sentencing court’s discretion to the imposition of a minimum sentence that is no more than three times the minimum sentence calculated pursuant to the sentencing guidelines. Rather, as recently stated by our Supreme Court, a sentence may depart from or adhere to the recommended guidelines range as long as it "reflects the seriousness of the matter.” People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995). Additionally, and contrary to defendant’s implication, the guidelines recommended a minimum sentence within the range of twenty-four to sixty months’ imprisonment, meaning that the seventy-two-month minimum sentence imposed exceeded the range calculated under the guidelines by only twenty percent. Therefore, even were sentencing courts forbidden to impose a minimum sentence that is three times as severe as the highest sentence recommended under the guidelines, the sentencing court in the present case did not impose such a sentence.

Defendant also challenges the proportionality of the sentence imposed. A sentence must be proportionate to both the seriousness of the crime and the defendant who committed it. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990). In the present case, the minor defendant admitted to the daily illegal use of marijuana and the daily consumption of between 80 and 120 ounces of malt liquor. See People v Fleming, 428 Mich 408, 417-418; 410 NW2d 266 (1987). Defendant had a fairly significant juvenile record. See People v Smith, 437 Mich 293, 304; 470 NW2d 70 (1991). Further, he had armed robbery and felony-firearm charges pending in another county, see People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994), and the sentencing court ascertained that the pending charges involved the alleged use of a real firearm. Therefore, considering the objectives of imposing sentence, see People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), we. do not find the sentence imposed to be disproportionate and, accordingly, find no abuse of discretion.

Defendant next argues that he should be resentenced because the trial court failed to state reasons for departing from the sentencing guidelines’ recommended range. We disagree. The trial court’s articulation of the reasons for departing from the guidelines was sufficient under the circumstances.

In Fleming, supra, our Supreme Court directed that trial courts must place their reasons for departure from the sentencing guidelines on the record at the time of sentencing. Our review of the sentencing transcript convinces us that the court was aware of the sentencing guidelines’ range. The failure to specifically say the magic words "I am departing from the sentencing guidelines’ recommendation” constitutes harmless error. It is worthwhile to note that the Supreme Court in Fleming stated that the reason for this articulation requirement was to evaluate the effectiveness of the guidelines in rectifying the problems associated with excessively severe or lenient sentences and disparate sentences for similar defendants who have committed similar crimes. The articulation requirement was not put in place to protect a defendant’s rights, but to aid the courts in fine-tuning the sentencing guidelines. Fleming, supra, . Where the Court of Appeals panel holds that defendant’s sentence is proportionate pursuant to People v Milbourn, supra, and People v Houston, supra, and where the record indicates the trial court was aware of the guidelines at sentencing, it would be a waste of judicial resources to remand the case to the circuit court for articulation of the reasons for departure.

Affirmed.

J. K. Nichols, J., concurred.