People v. Legree

441 N.W.2d 433, 177 Mich. App. 134

• Court: Michigan Court of Appeals
• Decided: May 15, 1989
• Docket: Docket 105253
• Status: Published

Opinions

Murphy, J.

Defendant appeals as of right following his plea-based convictions for second-degree murder, MCL 750.317; MSA 28.549, and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). Defendant was sentenced to concurrent terms of 150 to 500 years in prison. We vacate defendant’s sentences and remand for resentencing.

The facts giving rise to defendant’s convictions almost defy description. The crimes of the nineteen-year-old defendant, which resulted in the murder of a defenseless elderly woman in her home, were violent, brutal, and senseless.

The record reveals that on the afternoon of March 4, 1987, defendant had been drinking at his brother’s house in Bay County. After consuming a considerable amount of alcohol, defendant borrowed a shotgun from his brother and went outside to shoot at pigeons. While walking in the neighborhood, defendant came upon the victim’s house. He observed a car in the garage and decided to enter the house to secure the keys so he could drive to Detroit to visit his wife, from whom he was separated. After breaking into the house, defendant encountered an eighty-year-old woman sitting on her couch. Defendant threatened her with the shotgun and forced her to an upstairs bedroom where he proceeded to rape her. Then defendant shot her in the head, killing her instantly. Defendant then took some money from the victim’s purse and drove her car to Detroit. When defendant returned the next day, he was arrested. The prosecution, after issuing a four-count information which included a first-degree murder count, allowed defendant to plead guilty to second-degree murder and first-degree criminal sexual conduct.

The presentence investigation report revealed that defendant’s only previous contact with the law was for a few minor traffic violations. The sentencing guidelines recommended a sentence of ten years to life. At sentencing, the court first ruled out any possibility that defendant could be rehabilitated. In addition, the court stated that there was nothing it could do at sentencing which would deter anyone from committing a crime like the one committed by defendant. Instead, the sentencing judge imposed the 150- to 500-year sentence solely to protect society. The court stated:

Society absolutely cries out in anguish for protection from Mr. Legree and some people, I’m sure, who would in other times and in other settings say capital punishment is not for me; I don’t want anything to do with it, would say in—in a case like this, if they were personally exposed to it, I will opt for that degree of protection so profound is the need to feel safe.

It is also clear that the court wanted to ensure that defendant would never have the opportunity to be paroled under Michigan’s "lifer law,” MCL 791.234(4); MSA 28.2304(4). To that end, the court imposed a sentence which, even assuming that defendant was a model prisoner, would mean that defendant would be approximately 140 years old before he would be eligible for parole.¹ There is no question that this sentence, in effect, is one for life in prison, without the possibility of parole.

Defendant now appeals claiming that he should be resentenced because the 150- to 500-year sentences imposed by the trial court are invalid. We agree.

Initially, we note that the resolution of the sentencing issues raised in this case confronts us with a most difficult task. Various panels of this Court have grappled with similar long-term indeterminate sentences in an attempt to determine the bounds of a circuit court’s power to sentence a defendant to "any term of years.”² What remains clear, however, is that there is no consensus, and until either our Supreme Court or the Legislature readdresses these sentencing issues, this Court and the circuit courts of this state will continue to disagree on what constitutes an appropriate indeterminate sentence.

There is no question that the crimes committed by defendant in this case defy reason and defendant’s brutal and senseless acts require that defendant be punished severely. Moreover, we have thoroughly reviewed the lower court record, paying particular attention to the sentencing record and transcript, and we are fully aware of the far-reaching impact and devastating effects this brutal murder has had not only upon the victim’s family, but the community at large. Nonetheless, we are constrained by the facts of this case to the review of defendant’s IVz- to 5-century sentences for committing two life-sentence crimes, first-degree criminal sexual conduct and second-degree murder.³

The sentencing scheme established by the Legislature in this state provides for individualized sentencing. In explaining the policy for individualized sentencing, our Supreme Court has stated:

The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence. [People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973).]

Moreover, appropriate basic considerations used in determining an appropriate sentence include: (a) the reformation of the offender; (b) the protection of society; (c) the disciplining of the wrongdoer; and (d) the deterrence of others from committing like offenses. See People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972); People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983); People v Broden, 428 Mich 343, 350; 408 NW2d 789 (1987).

The Legislature has the power, with certain recognized exceptions, to establish appropriate penalties for criminal violations to be enforced by the courts. Since the 1902 amendment of the 1850 Michigan Constitution, the people of this state have provided the Legislature with the power to establish indeterminate sentences, and the constitutionality of indeterminate sentencing legislation has been upheld by our courts. See In re Manaca, 146 Mich 697; 110 NW 75 (1906); People v Tanner, 387 Mich 683, 686-687; 199 NW2d 202 (1972). With the exception of first-degree murder and certain major drug offenses, where life imprisonment without parole is required, the Legislature has authorized and approved a sentencing scheme of indeterminate sentences.

The Legislature in addressing indeterminate sentencing in MCL 769.8; MSA 28.1080 has provided in pertinent part the following:

When a person is convicted for the first time for the commission of a felony, and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence. [Emphasis added.]

In addition, MCL 769.9(2); MSA 28.1081(2) provides:

In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.

The crimes for which defendant now stands convicted are "punishable by imprisonment in the state prison for life or any term of years.” See MCL 750.317; MSA 28.549 (second-degree murder) and MCL 750.520b; MSA 28.788(2) (criminal sexual conduct in the first degree). As stated by our Supreme Court in People v Johnson, 421 Mich 494, 497-498; 364 NW2d 654 (1984):

Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years” it allows the imposition of a fixed sentence —life—or an indeterminate sentence—any number of years. We observed in People v Blythe, 417 Mich 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase "life or any term of years” as descriptive of the maximum sentence only. The sentence concepts "life” and "any term of years” are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both. [Emphasis added.]

The sentencing judge in this case had the authority to impose a sentence of life imprisonment or a term of years; that is, the indeterminate sentence contemplated by the Legislature in its sentencing scheme. If life imprisonment had been imposed, under Michigan’s "lifer law” defendant would have been subject to the jurisdiction of the parole board and eligible for review for parole in ten years. MCL 791.234(4); MSA 28.2304(4). In fact, due to the many conditions imposed before a defendant is released on parole,⁴ a life sentence rarely results in a defendant’s being paroled after ten years. Rather, it simply means a defendant will be eligible for review by the parole board at that time.

However, since the crimes for which defendant now stands convicted are Proposal b crimes, and indeterminate sentences were imposed, as opposed to life sentences, defendant must serve his minimum terms of imprisonment before he is eligible for parole.⁵ Strangely, the impact of Proposal b along with the competing statutory provisions which address the convoluted sentencing scheme in Michigan result in it often being the case that a sentence of life imprisonment does not mean being in prison for life. Rather, under a life sentence, a defendant is eligible for parole well before a defendant who has been sentenced to a long-term indeterminate term of years. See People v Hurst (After Remand), 169 Mich App 160; 425 NW2d 752 (1988).

As a result, some trial judges, as evidenced by this case, avoid imposing a life sentence which has the potential of parole after ten years in an effort to impose an even greater sentence. It is difficult to imagine that this development was intended or contemplated by the Legislature when it set the penalty for certain criminal offenses as being "punishable by imprisonment in the state prison for life or any term of years.”

Had the Legislature chosen to make the possible penalty for second-degree murder or first-degree criminal sexual conduct life without the possibility of parole, we would defer to this judgment and affirm defendant’s sentences. However, since the Legislature has not chosen to impose such a harsh penalty for these crimes, we are constrained to review defendant’s indeterminate sentences in light of the legislative pronouncements relative to such sentences. Although defendant now challenges his sentences on several grounds,⁶ in our view, the dispositive question is this: Is a sentence of 150 to 500 years imprisonment, which unquestionably is far in excess of the normal human life span, a sentence which undermines the indeterminate sentencing statutes and overall statutory sentencing scheme in Michigan? We believe that it is.⁷

Our Supreme Court in People v Tanner, supra, affirmed the validity of indeterminate sentencing in this state. The Court held that any sentence with too short an interval between the minimum and maximum sentence is not an indeterminate one and that any sentence which provides for a minimum exceeding two-thirds of the maximum sentence is improper because it fails to comply with the indeterminate sentencing act. The Court in Tanner quoted with approval In re Campbell, 138 Mich 597, 599; 101 NW 826 (1904), which stated:

[T]he trial judge, by prescribing a very low maximum, may totally deprive the governor, pardon board, and board of control of the opportunity to exercise the discretion which the statute intended to give them. If it does, then the trial judge, in cases where he can fix the minimum—as in larceny—may, by increasing the minimum and [or] reducing the maximum, make a determinate sentence, and thus frustrate the legislative purpose in enacting the indeterminate sentence law. [Emphasis in original.]

A sentence of 150 to 500 years unquestionably exceeds defendant’s life expectancy and thus precludes any likelihood that the Governor, acting through the parole board, will be given the opportunity to exercise discretion which the Legislature intended to provide by enacting the indeterminate sentencing statutes. A 150- to 500-year sentence cannot be said to be an indeterminate sentence; rather it is clearly nothing more than a determinate sentence.⁸ We see no reason to exalt form over substance. In form this is an indeterminate sentence; in substance it is just as determinate as a life sentence without the possibility of parole. We believe that these sentences (1) undermine the indeterminate sentencing scheme, (2) violate the intent of the Legislature, and (3) are inconsistent with the reasoning behind our Supreme Court’s pronouncement in Tanner, supra. Therefore, we conclude defendant’s sentences are invalid.

Based on the foregoing analysis, we reverse defendant’s 150- to 500-year sentences and remand to the trial court for resentencing.

Finally, we invite both our Supreme Court and the Legislature to promptly revisit the validity of these extremely long-term indeterminate sentences so that the circuit courts have the appropriate guidance in imposing a life or any term of years sentence and, in turn, this Court is provided with the appropriate guidance in the review of these sentences.

Reversed and remanded.

Holbrook, Jr., P.J., concurred.

ADDENDUM

This opinion was submitted for release before our Supreme Court released its decision in People v Timothy Moore, 432 Mich 311; 439 NW2d 684 (1989). Therefore, this case was not decided with the panel having the benefit of our Supreme Court’s position on the "life or any term of years” sentencing issue addressed in Timothy Moore. We note, however, that the majority holding in this case is consistent with our Supreme Court’s holding in Timothy Moore.

1 Testimony from the chairman of the Michigan Parole Board in People v Hurst (After Remand), 169 Mich App 160, 166; 425 NW2d 752 (1988), revealed that an indeterminate sentence of 150 to 300 years for a Proposal b crime would equate to a "best minimum out” of 120 years.

2 Although employing a different analysis than set forth in this opinion, we note that there is a conflict in this Court regarding whether a "term of years” sentence is valid if it exceeds defendant’s life expectancy. See People v Oscar Moore, 164 Mich App 378; 417 NW2d 508 (1987), but see People v Harden, 166 Mich App 106; 420 NW2d 136 (1988); People v Cooper, 168 Mich App 62; 423 NW2d 597 (1988); People v Jefferson, 172 Mich App 492; 432 NW2d 351 (1988); People v Martinez, 147 Mich App 94; 382 NW2d 741 (1985); People v Crawford, 144 Mich App 86; 372 NW2d 688 (1985). See also People v Murray, 72 Mich 10, 17; 40 NW 29 (1888); People v Robinson, 172 Mich App 650; 432 NW2d 390 (1988). We also note that a similar sentencing scenario is currently before our Supreme Court in People v Timothy Moore, unpublished opinion per curiam of the Court of Appeals, decided February 19, 1987 (Docket No. 89319), lv gtd 429 Mich 858; 412 NW2d 924 (1987).

3 It is not for this Court to review the wisdom of the prosecutor’s decision in this case to permit a plea to second-degree murder and forego prosecution for first-degree murder, where conviction would have mandated life imprisonment without parole for defendant.

4 See MCL 791.235; MSA 28.2305.

5 See People v Johnson, supra, p 498. Also, as previously noted, defendant must serve, at a minimum, approximately 120 of his 150-year minimum terms. Since defendant was nineteen years old at sentencing, he will be eligible for parole when he is 139 years old in the year 2Í07.

6 Defendant raises four issues on appeal: (1) the sentences imposed are an abuse of discretion and should shock the conscience of this Court; (2) the sentence is so disparate that it amounts to cruel and unusual punishment; (3) the sentence violates the spirit and intent of the indeterminate sentencing statute; and (4) because the sentence far exceeds defendant’s life expectancy and precludes the executive branch from granting parole, the sentence violates the separation of powers doctrine of the Michigan Constitution.

7 The dissent suggests that our decision leaves many issues unresolved. Perhaps it does. However, we see no reason to address hypothetical issues in this appeal. Our holding is limited to this case under the dispositive issues presented.

8 The Tanner Court stated:

Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act. [Id., p 690. Emphasis added.]

If a sentence with a minimum exceeding two-thirds of the maximum fails to comply with the indeterminate sentencing act because it is not indeterminate, then certainly a sentence with a minimum (and maximum) which unquestionably is in excess of the natural human life span is likewise not indeterminate.