People v. Merriweather

527 N.W.2d 460, 447 Mich. 799

• Court: Michigan Supreme Court
• Decided: December 30, 1994
• Docket: 97745, (Calendar No. 2)
• Status: Published

Opinions

Boyle, J.

The question presented is the legality of the defendant’s sentence. The Court of Appeals, in a two-to-one decision, held that the defendant’s sentence of 60 to 120 years "violate[s] the proportionality requirement of Milbourn”1 because it is "three times the guidelines’ recommendation.” 201 Mich App 383, 385-386; 506 NW2d 888 (1993). We disagree, and reverse the decision of the Court of Appeals.

i

The conduct constituting these offenses is so depraved that it has few, if any, comparables in the thousands of criminal cases this Court has reviewed. The defendant himself² described how he terrorized, tortured, burned, and sodomized eighty-four-year-old Marie Green; then left her for dead:

On the night before, I looked at the garbage in front of this house and I saw a small bag to be picked up, so I figured it was an old person that lived there by themself. So I waited a couple of days and went back. So I waited a couple of days and went back there in the morning. I went to the back of the house and found a large rock. I went to the side door and threw it through the side window. I opened the door and went in the house. I walked through the house until I found the lady in her bedroom. It was early in the morning and it was already light out. The lady was awake. I asked her where was her money. She said what was all that noise. I looked at her and said don’t play with me, where is all your money. She started to act weird, and I couldn’t understand what she was saying. I hit her in the face with my hand and kept asking her for her money. She kept saying I don’t have any money, and I kept hitting her in the face. I found a pair of panty hose in her drawer and tied her up on the bed. I started walking around the house searching everything and throwing things on the floor looking for money. I didn’t find anything, and I started to get angry. I found an egg shaped candy dish and I took it back to her and hit her in the head with it. It broke when I hit her. She kept saying I don’t have any money. So I saw a light bulb on the floor, and I picked it up and broke it on her head. When I hit her with the light bulb, it broke and cut me through my glove and I really got angry, so I went to the kitchen. But before I went to the kitchen, I saw this black thing on the floor, so I figured if I stuck that in her she would tell me where the money was. I pulled her gown up to her waist and put this black thing in her rear. After I stuck it in her rear, she started going to the bathroom all over the place, her bowels started moving. Her bowels really started moving. I pulled it out and put it on the floor and went to the kitchen. I got a knife from the kitchen drawer. It was long with a white plastic handle. I went back into her room. I asked her again where was the money and started to hit her with the knife on her butt. She kept screaming and I kept hitting her. She didn’t tell me, so I kept hitting her. She asked me why I was torturing her, and I said tell me where the money is at and I’ll quit. I left her and went to the kitchen and heated up the knife. I put another knife on the burner from the kitchen drawer to light up when I went back to her room with the one I had just got hot. I started burning her with it on her butt. She still wouldn’t tell me where the money was at. I kept getting madder and madder. I ran back to the kitchen and put the knife up and got the one that was on the burner. It was a smaller knife. I went back to her room and put that on her butt, and she s'till wouldn’t tell me. I left her and yanked the phone off of the wall. I walked back into the kitchen and opened up the . stove and blew the pilot light out and turned on all the gas and stood there smelling it. I stood there smelling the gas for ten, maybe fifteen minutes, just smelling the gas, looking at things. I was about to light a match but I didn’t. I opened up the door and left. I walked around about an hour, and then I went home.

The defendant was convicted by a jury of assault with intent to rob while armed,³ assault with intent to murder,⁴ breaking and entering an occupied dwelling,⁵ and first-degree criminal sexual conduct (two counts).⁶

The defendant had been apprehended driving a vehicle stolen during a break-in of a home near Mrs. Green’s, and, although the record is not free from doubt, it appears that he was charged and acquitted in three other cases, each of which involved a breaking and entering and a robbery, and two of which also involved criminal sexual conduct. He was sentenced to life imprisonment for each of the assault convictions, ten to fifteen years for the breaking and entering conviction, and sixty to one hundred twenty years for each of the criminal sexual conduct convictions.

The defendant appealed as of right. Over a dissent by Judge Connor, the Court of Appeals vacated the defendant’s sentences for the criminal sexual conduct convictions and remanded the case to the trial court for resentencing because the sentence departed from the sentencing guidelines’ recommendation:

[T]he 60- to 120-year sentences violate the proportionality requirement of Milboum. Clearly, considering defendant’s background and the nature of his crimes, a severe sentence is warranted in this case. However, the sentences imposed exceeded the guidelines’ recommended range by forty years, and are three times the guidelines’ recommendation. Under the circumstances, we conclude that this substantial departure violates the proportionality requirement of Milbourn. [201 Mich App 385-386.]

II

I do not retreat from the view that in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), the Court violated separation of powers and usurped the authority constitutionally confided by the people of this state in their Legislature, see Const 1963, art 4, § 45, and by the Legislature in the trial courts, see MCL 769.1; MSA 28.1072.

More importantly, that this Court could seriously debate the justice of the sentence imposed in this case is proof of the ultimate dehumanization of the sentencing process initiated by the decision. Both the Court of Appeals decision and the dissenting opinion vividly evidence that elaborate rationalizations for lowering sentences distance the appellate judiciary from meaningful connection with reality and distort the concept of individualized justice. As Marie Green’s tragedy is mediated through the processes of proportionality and guidelines’ evaluation, the focus of the reviewing court shifts from the horror of her blood, feces, and burned flesh, to the image of an enfeebled and sympathetic defendant, incarcerated at great cost to the state. See 201 Mich App 385.

The course we have chosen is wrong, but it is firmly entrenched. Therefore, I reluctantly look to Milbourn for resolution.

in

The defendant’s sentence is not an abuse of discretion under any extant definition of the term. In People v Milbourn, supra, this Court held that a trial court abuses its discretion when it imposes a sentence that is not proportional to the seriousness of the matter. The Court carefully noted, however, that the principle of proportionality must leave room "to operate” from the least to the most serious situations:

Because the Legislature in addressing criminal punishment in general has subscribed to the principle of proportionality and because the commission of a given crime by a given offender may also vary considerably in seriousness, we believe it reasonable to conclude that the Legislature, in setting a range of allowable punishments for a single felony, intended persons whose conduct is more harmful and who have more serious prior criminal records to receive greater punishment than those whose criminal behavior and prior record are less threatening to society. [435 Mich 651.]

Milbourn affirms that the maximum sentence decreed by the Legislature⁷ may be lawfully imposed in cases falling within the most serious class of offenses. Proportionate sentences may thus be imposed throughout the statutory range:

We believe that judicial sentencing discretion should be exercised, within the legislatively prescribed range, according to the same principle of proportionality that guides the Legislature in its allocation of punishment over the full spectrum of criminal behavior. Thus, a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. [Id.]

The archetype “abuse of discretion” is the imposition of the maximum possible sentence “in the face of compelling mitigating circumstances . . . .” See id. at 653. It should follow that the archetype "no abuse of discretion” case is the imposition of a maximum sentence in the face of compelling aggravating factors.

The conduct involved in this case is the most egregious contemplated by the legislative scheme. It is as impossible to imagine that any legislator would consider this case ordinary as it is to conclude that "no reasonable sentencer” would have found the facts so aggravating as to be outside the guidelines’ range. Lewis v Jeffers, 497 US 764, 782-784; 110 S Ct 3092; 111 L Ed 2d 606 (1990). The defendant’s claim that he should not have received points for excessive physical brutality because "there was no factual evidence that the insertion [of the rectal dilator] was done with 'excessive brutality,’ ” simply ignores the fact that the type of brutality he engaged in is uniquely perverse.

The defendant falls within cell a-iv on the grid for first-degree criminal sexual conduct. However, the range for that cell, a minimum sentence of eight to twenty years in prison, does not reflect the actual sentences given to fully one-quarter of offenders who fall within that cell. The guidelines’ range does not consider the highest twelve and one-half percent of sentences imposed on offenders falling within that cell. Because the guidelines do not account for sentences given in extreme cases such as this one, they furnish no evidence regarding how trial judges have dealt with particularly serious conduct within a given cell.

The Court of Appeals erroneously concluded that the sentence was disproportionate because it was three times the sentence guidelines. The guidelines’ range bears no necessary relationship to the percentage of cases that are off the grid⁸ and no comparisons can be drawn about the sentences imposed in those cases without a comparison of their circumstances to the circumstances of the case before us. Neither the grids nor Milbourn dictate that a departure from guidelines is to be arithmetically measured to determine the propriety of a given sentence.

iv

The defendant also contends that his sentence is an abuse of discretion because the sixty-year minimum denies him any chance for parole. This argument rests on the assumption that the Legislature intended that the sentencing judge must either impose a low sentence or else give ”life,” which would make the defendant eligible for parole after serving ten years of his sentence.⁹ We find no basis, however, to conclude that the Legislature intended that all defendants, or even simply this defendant, must be eligible for parole.

The defendant’s sentence appears to satisfy every legislative requirement. First, it falls within the permissible range of sentences for defendants convicted of first-degree criminal sexual conduct:

Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years. [MCL 750.520b(2); MSA 28.788(2X2).]

Second, the sentence is indeterminate. Under MCL 769.9(2); MSA 28.1081(2), when "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 . . . .” The judge complied with these requirements by sentencing the defendant to the custody of the Department of Corrections for a term of 60 to 120 years.

Consequently, the fact that the defendant is not eligible for parole appears to be precisely what the Legislature intended. Under MCL 791.233b(w); MSA 28.2303(3)(w), a defendant convicted of first-degree criminal sexual conduct "shall not be eligible for parole until the person has served the minimum term imposed by the court less an allowance for disciplinary credits . . . .”

The fact that it is paradoxical that the defendant might be better oif with a sentence of life, which would make him eligible for parole, has nothing to do with a legislative intention that every prisoner should be eligible for parole. The Legislature has not seen fit to interfere with the voters’ directive that a defendant should not be parole eligible until completion of the minimum term. The paradox is the creature of this Court’s decision in People v Johnson, 421 Mich 494; 364 NW2d 654 (1984), which held that a sentence of life imprisonment for murder was not a minimum term.

Recent statutory amendments also reflect the Legislature’s intent to decrease the jurisdiction of the parole board. In 1992, the Legislature amended MCL 791.234(4); MSA 28.2304(4)—the lifer law.¹⁰ Before Proposal b, it had provided that prisoners sentenced to life, other than for first-degree murder or a major controlled substance offense, become eligible for parole after ten years. The Legislature amended it so that prisoners who committed crimes after October 1, 1992, would not be eligible for parole until they had completed fifteen years.

At the same time, the Legislature amended the provision governing the interview of prisoners by members of the parole board. Before the amendment, a member of the parole board would interview every prisoner at the conclusion of the fourth calendar year of his sentence. Additional interviews were conducted biennially thereafter. In 1992, the Legislature required that the parole board wait six more years—until a prisoner had completed ten years of his sentence—before granting the first interview. In addition, further interviews were spread to every five years thereafter.

Assuming arguendo, "the only possible rationale for sentencing the defendant . . . was to effectively prevent the parole board from assuming jurisdiction,” post at 812, that is the precise result the electorate sought and obtained in the passage of Proposal b. The dissent’s assumption that it was unlawful for the trial court to exercise his authority to obtain the objective the law intended simply reveals the dissenters’ belief that, despite the Legislature’s provision for such sentences, trial courts should not be allowed to impose them under any circumstances.

v

Justice Riley and I have expressed our views on the sentencing guidelines elsewhere. See, generally, People v Polus, 447 Mich 952, 952-958 (1994) (statement of Boyle and Riley, JJ.); People v Milbourn, 435 Mich 670 (Boyle, J., joined by Riley, C.J., dissenting).

Given that a majority of the Court has so recently indicated an unwillingness to address the source of its authority to enforce sentence guidelines as the substantive law of the State of Michigan, it is futile to belabor that issue at length. It need only be added here that the soul-searing facts of this case defy assumptions that all offenses and all offenders can be evaluated through the sterile lens of a statistical grid.

In this case, a sentence within the guidelines would be unjust. That injustice would not be reduced one iota by the possibility that guidelines might render sentences for other defendants more alike. Imposing the same sentence in this case as judges have imposed in other cases falling in cell a-iv violates the principle of equality, which requires not only treating like cases alike, but also treating unlike cases differently.

When, and if, the day dawns on a judiciary that is so insensitive to human pain that it no longer distinguishes between the endless variations of man’s inhumanity to man, we will have lost our claim to confidence in the rule of law. As this case so tragically illustrates, a guidelines’ regime is not an adequate substitute for trial court discretion.

VI

Because the defendant’s sentence was not an abuse of discretion, we reverse the decision of the Court of Appeals, insofar as it holds that the defendant’s sentence must be vacated, and reinstate the judgment of sentence.

Riley, Griffin, and Mallett, JJ., concurred with Boyle, J.

1 435 Mich 630; 461 NW2d 1 (1990).

2 This is the only account available. The eighty-four-year-old victim, who had previously lived alone, sulfered a heart attack as a result of the attack and has lived in a nursing home ever since. At the time of the trial and sentencing, she was unable to speak, and had to be wheeled into court in a wheelchair.

3 Cf. MCL 750.89; MSA 28.284.

4 Cf. MCL 750.83; MSA 28.278.

5 MCL 750.110; MSA 28.305.

6 Cf. MCL 750.520b; MSA 28.788(2).

7 This term is itself a misnomer because it is this Court that has decreed that the minimum may be no higher than two-thirds of the maximum. See People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972).

8 In People v Stewart, unpublished opinion per curiam of the Court of Appeals, issued February 23, 1993 (Docket No. 125298), the panel remanded for resentencing because of a five-year departure from the sentencing guidelines. Where the guidelines recommended a minimum sentence of ten to twenty-five years, the trial judge imposed a sentence of thirty to seventy years. The Court of Appeals stated that the trial court erred by departing for reasons that were already scored in the guidelines.

The defendant had been convicted of stabbing to death a seventy-four-year-old man. There were thirty-eight wounds, several of which were "defensive.” The victim was handicapped because of a stroke in 1983 and unable to use his left arm or hand. He also walked with difficulty. He lived alone and was described as a kind and peaceful man. The defendant and her boyfriend apparently killed him during the theft of items from his home.

We reversed the decision of the Court of Appeals and reinstated the original sentence:

[I]n this case . . . the offense-variable score of 120 points vastly exceeded the 50 points necessary to reach the highest level of offense severity. In such a circumstance, the trial court did not abuse its sentencing discretion .... [442 Mich 937 (1993).]

9 See MCL 791.234(4); MSA 28.2304(4). For offenses committed after October 1, 1992, parole eligibility has been moved back to fifteen years.

10 This was the provision that Johnson declared had precedence over Proposal b.