People v. LeMarbe

505 N.W.2d 879, 201 Mich. App. 45

• Court: Michigan Court of Appeals
• Decided: August 2, 1993
• Docket: Docket 137155
• Status: Published

Opinions

AFTER REMAND

Before: Michael J. Kelly, P.J., and Marilyn Kelly and Connor, JJ.

Michael J. Kelly, P.J.

Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to forty to eighty years’ imprisonment and two years’ imprisonment, respectively. He appealed to this Court, and we affirmed and remanded for resentencing on the basis that the trial court had failed to respond to defendant’s objections to the scoring of the sentencing guidelines. Unpublished opinion per curiam, decided September 5, 1990 (Docket No. 112396). Subsequently, defendant was resentenced to the same terms. Defendant again appeals as of right.

At the time of the original sentencing, defendant was approximately fifty-four years old. Computation of the effect of regular disciplinary credits indicates that defendant will not be eligible for parole until he is in his early nineties. Defendant claims that he should be resentenced because it is not reasonably possible for him to serve the sentence imposed.

Under the indeterminate sentence provisions, a sentencing court may not impose a term of years of imprisonment that has the effect of avoiding eligibility for parole. People v Moore, 432 Mich 311, 323-324; 439 NW2d 684 (1989). An indeterminate sentence must be one that the defendant has a reasonable prospect of actually serving, as measured by the minimum sentence. Id. at 329. We do not believe that defendant has a reasonable prospect of actually serving the sentence imposed, even assuming regular disciplinary credits. Id.; People v Rushlow, 437 Mich 149; 468 NW2d 487 (1991). Because we believe the entire interval between defendant’s minimum and maximum sentence is virtually certain to occur after his death, we would remand this matter for resentencing but for this Court’s recent decision in People v Weaver (After Remand), 192 Mich App 231; 480 NW2d 607 (1991).

The Weaver Court affirmed a seventy-five-year minimum sentence imposed on a defendant who was approximately thirty years old. The Court concluded that Weaver could reasonably be expected to serve a sentence that would place him in his early nineties before he would be eligible for parole. Although we consider this result spurious, unfortunately we are constrained under Administrative Order No. 1990-6 to follow the Weaver decision. We are following Weaver only because we are required to do so. Otherwise, for the same reasons as those set forth in Judge Hood’s dissenting opinion in Weaver, we would find that there is no empirical basis for a conclusion that prisoners in this state are likely to live well into their nineties, and we would hold that defendant does not have a reasonable prospect of actually serving his minimum sentence. The result reached in this case, as noted by Judge Hood in Weaver, supra at 236, "pushes us beyond the pale of reason into the lap of ludicrousness.”

Defendant also challenges the scoring of the sentencing guidelines’ premeditation and deliberation points under Homicide Offense Variable (ov) 3. The trial court scored the variable at fifty points, signifying a premeditated intent to kill. However, we note that the instructions to ov 3 in the Michigan Sentencing Guidelines (2d ed), p 77, provide that the sentencing judge "must score this variable consistent with a jury verdict unless the judge has information that was not presented to the jury.” The jury rejected the charge of first-degree premeditated murder and convicted defendant of the lesser-included offense of second-degree murder. The trial court mentioned no information regarding defendant’s intent that was not presented to the jury. Therefore, the trial court erred in not following the guidelines’ instruction to score ov 3 at 25 points. Hence, resentencing is required under the correct guidelines.

Resentencing shall be conducted by a different judge in order to preserve the appearance of justice and to avoid needless waste and duplication. People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986); People v Spalla, 147 Mich 722, 727; 383 NW2d 105 (1985).

Remanded for resentencing by a different judge. We do not retain jurisdiction.

Marilyn Kelly, J., concurred.