People v. Milbourn

461 N.W.2d 1, 435 Mich. 630, 1990 WL 140125

• Court: Michigan Supreme Court
• Decided: September 11, 1990
• Docket: 80475, (Calendar No. 2)
• Status: Published

Opinions

Brickuey, J.

I. INTRODUCTION

A

Before us today stands a defendant who alleges that the trial court abused its discretion by imposing an excessively severe sentence. Defendant Milbourn was convicted of breaking and entering a residence with the intent to maliciously destroy property worth over $100.¹ Mr. Milbourn had lived in the residence together with his girl friend, the complainant, until the relationship soured. Shortly after the breakup, Mr. Milbourn committed several hostile acts in an eight-day period. The acts for which Mr. Milbourn’s ten- to fifteen-year sentence was imposed consisted of breaking into his former apartment when no one was home and destroying property belonging to the complainant.

In order to decide whether Mr. Milbourn’s claim that his sentence embodies an abuse of the trial judge’s sentencing discretion is justified, we find it necessary to reexamine the meaning of the term “abuse of discretion” in the sentencing context.

B

Central to our recent and unanimous decision in People v Coles, 417 Mich 523, 535; 339 NW2d 440 (1983), was our holding that sentencing decisions, no less than the myriad other discretionary judicial actions, should be subject to review by our state’s appellate courts.

We find no sound reason for interpreting the applicable constitutional and statutory provisions as carving out an exception to the right of appeal regarding sentencing matters. None of those relevant provisions limit the particular issues subject to appellate review. We therefore conclude that the foregoing constitutional and statutory authority vest appellate courts with the jurisdiction to review all sentencing issues.

We continue to believe in the correctness of the central proposition set forth above. We conclude, however, that the mechanism we established in Coles for determining whether a particular sentence represents an abuse of discretion is beset with difficulties. Thus, we are persuaded that the propriety of a given exercise of sentencing discretion should no longer turn on whether the sentence "shocks the conscience of the appellate court.” Id., p 550.

Our preeminent requirement in formulating an alternative is to respect the purpose the Legislature of our state has manifested with regard to sentencing. The Legislature in establishing differing sentence ranges for different offenses across the spectrum of criminal behavior has clearly expressed its value judgments concerning the relative seriousness and severity of individual criminal offenses. This statutory sentencing scheme embodies the "principle of proportionality” according to which sentences are proportionate to the seriousness of the matter for which punishment is imposed. In our judgment, it is appropriate — if not unavoidable — to conclude that, with regard to the judicial selection of an individual sentence within the statutory minimum and maximum for a given offense, the Legislature similarly intended more serious commissions of a given crime by persons with a history of criminal behavior to receive harsher sentences than relatively less serious breaches of the same penal statute by first-time offenders. We believe that the Legislature’s purpose is best served by requiring judicial sentencing discretion to be exercised according to the same principle of proportionality that has guided the Legislature in its allocation of punishment over the entire spectrum of criminal behavior. Accordingly, a given sentence can be said to constitute an abuse of discretion if that sentence violates the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.

This rule is superior in several ways to the "shock the conscience” test in implementing our decision in Coles permitting appellate courts to provide relief where there has been an abuse of discretion by the trial court. Most importantly, the proportionality test is better tailored to and in keeping with the sentencing scheme adopted by the Legislature. In addition, the proportionality standard is preferable because it is far less subjective than the "shock the conscience” inquiry. Finally, it is our hope and belief that the proportionality test will have the additional, incidental effect of fostering "sentencing equity,” i.e., that it will provide better protection against unjustified sentence disparity between similarly situated offenders,² a phenomenon we condemned in Coles and which has been justly held up to criticism of the most vehement sort.³

c

Section ii of this opinion sets forth the facts and procedural history of the present case. Section hi contains a discussion of Coles, followed by a critical evaluation and rejection of the "shock the conscience” test. Section iv discusses the principle of proportionality. Section v explores the abuse of discretion standard in light of the principle of proportionality and the sentencing guidelines. Section vi addresses the dissent’s criticisms of our decision, focusing in particular on the dissent’s contention that the trial judge should enjoy unfettered discretion in imposing sentencing. Section vn applies the rule to the sentence imposed on Mr. Milbourn and concludes that this sentence violates the principle of proportionality and therefore constitutes an abuse of sentencing discretion. Section vni describes the applicability of this decision to other cases.

II. FACTS AND PROCEDURAL HISTORY

On October 22, 1984, two years after they had begun dating, the defendant and the complainant moved into an apartment with the lease in the name of the complainant. They lived there together, in a common household, until December 2, 1984. The defendant moved out because he and the complainant "broke up.” Each reports blameworthy conduct on the part of the other, leading to the breakdown of the relationship.

The complainant testified that the relationship was clearly finished by the time of the events that gave rise to this prosecution. The defendant seems to have viewed the relationship as being in a "cooling-off” period, during which he was temporarily living apart from the complainant. The complainant testified that she had mentioned such a cooling-off period to the defendant and had suggested that they might move back together again.

After the defendant’s belongings were removéd from the apartment, complainant changed the locks on December 13. She next saw the defendant on December 18, when he came to her place of employment. He handed her a greeting card and spoke briefly with her. When she said she did not wish to speak further, the defendant left, telling the complainant as he went, "You’ve had it.”

She saw him again, after midnight, when she left work. The defendant approached her and said, "Don’t call the police on me.” The complainant did not understand this request. When she returned to her apartment, she found considerable damage. As described by the complainant and by a police officer, the scene included damage to clothes, a lamp, a television set, the walls, the furniture, bedding, drapes, and the phone cord. An appraiser who later saw much of the damage estimated that $330 worth of furniture had been damaged.

The defendant testified at trial of the resulting charge of breaking and entering that he had been drinking that evening and that he went to the apartment to retrieve his remaining belongings. (The complainant testified, however, that Mr. Milbourn’s property had already been removed.) Mr. Milbourn said that when he discovered, to his surprise, that the locks had been changed, he cut a screen with a rock, slid open an unlocked window, and entered the apartment. Asked whether he had caused the damage, he said he did not remember doing such acts.

In addition to the prosecution for breaking and entering that gives rise to this appeal, two other criminal charges were lodged against the defendant. Each resulted from conduct arising out of the relationship between the defendant and the complainant. One was a felonious assault complaint filed after a confrontation between the defendant and a male friend of the complainant. This charge was later dismissed.

The defendant also had a confrontation with the complainant on the evening of January 3, 1985. He broke a window of her car and flattened a tire. It is disputed whether he reached into the car and grabbed the complainant. For this, the defendant pled guilty of attempted malicious destruction of property over $100.⁴ The defendant made numerous attempts to contact the complainant following these events, and he testified at trial that he still loved her.

There was also testimony of threats made by the defendant against the complainant, orally, in writing, and by gesture. The defendant generally denied these threats.⁵

When he committed the offense that gives rise to this appeal, the defendant had no prior criminal record.⁶

At the conclusion of a two-day jury trial, the defendant was convicted, as charged, of breaking and entering an occupied dwelling with the intent to commit malicious destruction of property worth more than $100.⁷

Although the sentencing guidelines recommended a minimum sentence between twelve and thirty months in prison,⁸ the trial court imposed the maximum possible sentence: a minimum term of ten years. The. sentencing judge explained the departure on the sentencing information report⁹ and also explained on the record why he believed it necessary to depart from the recommendation found in the guidelines:

All right, thank you, Mr. Milbourn.

The Court has listened to the remarks of Counsel, as well as the remarks of Mr. Milbourn. And prior to coming to Court, I reviewed it all, all of my file notes, because I was the presiding Judge on the trial of this matter. And I need not reflect upon some of the other items in the pre-sentence report that [defense counsel] objects to. I can turn to my own recollections from the trial itself.

The problem here is, we have a man that is a very sensitive young man, I believe in his own way, a very caring young man. I don’t really quarrel with the remarks that [defense counsel] has made, except for the result that he asked. And the problem that has occurred here, as I have seen it, is that this young man has literally fits of rage with which he — not he or anyone else knows what the result might [be]. And it seems to me that we have seen the manner in which he went into the dwelling, then conducted himself in the destruction of items, cut them up and destroyed the belongings in a violent manner and then, perhaps honestly, professed a total lack of recall of that conduct. Other testimony was presented about the violent rages of temper. Indeed, there was even testimony of violent threats.

This Court has to assume that the Corrections Department and Parole Board will do its job properly. The Court feels that this young man needs protective custodial care during which that he would receive mental health counseling. And then we’ll assume that the Corrections Department will, themselves, have to make decisions as to whether or not they believe that he can return to society. That’s not the function of this Court. The function of this Court is to protect society from someone who at this point in in [sic] time constitutes, in my opinion, an extreme danger to society.

It is the sentence of this Court that Kevin Michael Milbourn be sentenced to the maximum period provided by law, which is a minimum of 10 years and a maximum of 15 years in prison. He shall receive credit as provided by law for the 135 days which he has spent in custody.

In arriving at this sentence, I’ve considered the following factors: One, the deterrence in the future of any further criminal behavior by you.

Two, and this is a very very important item to this Court, the protection of society from you, because of your criminal behavior. And that factor has to be a paramount factor.

Three, we have a sincere hope for your rehabilitation. We don’t know if it’s possible, we would hope that it is. At this juncture, we don’t know. That answer is going to be left to others.

Four, the requirement that there can be no safe society without law and there can be no effective law without punishment for its violation.

Now, as has been pointed out, this does not stay within the so-called Michigan guidelines, and I have filled this form out, and the form that says "Actual sentence, I’ve said, 10 to 15 years.” But as to "specific conditions” I’ve said, receive mental health counseling. And then for the reason for departure, I’ve said this, Defendant has a violent temper and goes into fits of rage. Defendant broke into former girlfriend’s apartment and cut up and destroyed her belongings. When in a rage, the Defendant is very dangerous.

The Court of Appeals affirmed the defendant’s conviction and sentence.¹⁰ As to the propriety of the sentence in this case, the Court of Appeals said simply:

Lastly, the trial judge stated his reasons for departing from the sentencing guidelines and the sentence does not shock our conscience.

This Court then granted leave to appeal. ¹¹

III. PEOPLE v COLES

In Coles, we explained in great detail the basis of our determination that a sentencing decision, no less than any other discretionary judicial act, should be subject to appellate review. We outlined the history of sentence review in Michigan, surveyed the practices in other jurisdictions, and noted the views of legal commentators.¹² In addition, we discussed and denounced the presence of unjustified sentence disparities. Our conclusion was that Michigan should join the great majority of American jurisdictions in which sentences are subject to appellate review.¹³

In Coles, supra, p 550, we determined that sentence review should be expanded. Specifically, we said that an appellate court is to "review a trial court’s exercise of discretion in sentencing, but may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court.” Having articulated this standard, we remarked that the "scope of review may subsequently evolve, by means of case law or statutory enactment, into something more definite or even different from that which we announce today.” Id., p 549.

Thousands of criminal cases have reached the appellate courts since Coles was decided on October 24, 1983. The Court of Appeals has published several opinions indicating that its conscience was shocked, and there exists also a handful of published decisions in which panels have divided on the issue whether the defendant was entitled to resentencing under Coles.14

On a number of occasions, judges of the Court of Appeals have requested in their opinions that this Court provide further guidance regarding the meaning of the phrase "abused its discretion to the extent that it shocks the conscience of the appellate court.” Judges of that Court have also inquired how we intend the sentencing guidelines to be employed in appellate review. People v Rutherford, 140 Mich App 272, 278-282; 364 NW2d 305 (1985) (opinion of Shepherd, J.), and People v Line, 145 Mich App 567, 573-579; 378 NW2d 781 (1985) (opinion of J. C. Ravitz, J.), lv den 425 Mich 857 (1986) .

We remain persuaded that the fundamental aspect of Coles — that an appellate court must review the trial court’s exercise of the sentencing discretion entrusted to it by the Legislature — is correct. We are now prepared to recognize, however, that the standard we developed to carry out the task of appellate sentence review — the "shock the conscience” test — is deficient in important respects. We turn now to a discussion of these shortcomings.

A primary difficulty with the rule that a sentence may not be overturned on appeal unless the trial court has "abused its discretion to the extent that it shocks the conscience of the appellate court” is its subjectivity. In a discussion of remittitur in a personal injury case, we recently held:

The "shock the conscience” inquiry is an inappropriate consideration since it merely involves an expression of the trial judge’s personal values and subjective beliefs and in no way relates to the actual conduct of the trial. As we have learned in reviewing sentencing issues under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), what shocks the conscience of one judge does not necessarily shock the conscience of another. . . . Because we view [the "shock the conscience”] inquiry to be one of complete subjectivity, we hold that it is not to be undertaken in any analysis relating to remittitur. [Palenkas v Beaumont Hosp, 432 Mich 527, 532-533; 443 NW2d 354 (1989).]

While a measure of subjectivity in judicial decisions is unavoidable due to the differing personal backgrounds, experiences, and viewpoints of different members of the bench, a standard which is itself "one of complete subjectivity” has no more place on the appellate bench than in the trial court. A rule which contains no directives to the judges who must apply it — other than to encourage the rendering of decisions in accordance with personal value judgments — is a "rule” only in the weakest sense.

A related and important problem inherent in the "shock the conscience” standard concerns disparity in sentencing. We observed in Coles, supra, p 546, that

disparity in sentences which results from considerations such as the race or economic status of a defendant or the personal bias and attitude of an individual sentencing judge is unjustified and impermissible. Unjustified disparities promote disrespect for the criminal justice system and resentment among prisoners, thus impairing their morale and motivation for rehabilitation. We conclude that such sentences should be subject to appellate review and relief when warranted. [Emphasis added.]

The public’s faith in the just and fair administration of justice is also shaken by the imposition of unjustifiable and unexplained sentence disparity. Just as the routine award of high grades demeans academic value, the routine imposition of maximum sentences would send a garbled message of society’s views on the relative blameworthiness of various commissions of a given crime to the public as well as to the ultimate consumer of judicial sentencing behavior — the convicted offender.

Professor and Commissioner of the United States Sentencing Commission llene H. Nagel, in an informative article on the genesis and the current state of federal sentencing policy under the Sentencing Reform Act, observed:

The purpose of the Act was to attack the tripartite problems of disparity, dishonesty, and for some offenses, excessive leniency, all seemingly made worse by a system of near unfettered judicial discretion.

For decades, empirical studies repeatedly showed that similarly situated offenders were sentenced, and did actually serve, widely disparate sentences. Furthermore, the disparity found to characterize federal sentencing was thought to sometimes mask, and be correlated with, discrimination on the basis of a defendant’s race, sex, or social class. For a system claiming equal justice for all, disparity was an inexplicable yet constant source of embarrassment. [Nagel, Structuring sentencing discretion: The new federal sentencing guidelines, 80 J Crim L & Criminology 883-884 (1990).]

Indeed, concern over the effect of unwarranted sentence disparities on the part of the public is not a novel one, as is made clear by this vivid passage penned by an eminent commentator almost two centuries ago:

Not a great many years ago, upon the Norfolk circuit, a larceny was committed by two men in a poultry yard, but only one of them was apprehended; the other having escaped into a distant part of the country, had eluded all pursuit. At the next assizes the apprehended thief was tried and convicted; but Lord Loughborough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately returned, and surrendered himself to take his trial at the next assizes. The next assizes came; but, unfortunately for the prisoner, it was a different judge who presided; and still more unfortunately, Mr. Justice Gould, who happened to be the judge, though of a very mild and indulgent disposition, had observed, or thought he had observed, that men who set out with stealing fowls, generally end by committing the most atrocious crimes; and building a sort of system upon this observation, had made it a rule to punish this offence with very great severity, and he accordingly, to the great astonishment of this unhappy man, sentenced him to be transported. While one was taking his departure for Botany Bay, the term of the other’s imprisonment had expired; and what must have been the notions which that little public, who witnessed and compared these two examples, formed of our system of criminal jurisprudence? [Romilly, Observations on the Criminal Law of England (2d ed) 18-19 (1811).]

It is evident that the "shock the conscience” test cannot effectively combat unjustified disparity. An "abuse of discretion” standard by itself can be construed so narrowly as to avoid dealing with disparity altogether.¹⁵ If the class of cases in which the trial court can be said to have abused its discretion is pruned to include only those cases in which the appellate conscience is shocked, then relief simply will not be available in the great majority of cases involving unjustified disparity, since the presence of such disparity does not depend on circumstances which "shock the consciences” of a majority of a given panel of the Court of Appeals.

A number of appellate opinions have been published in our state since Coles was decided expressing frustration with the current state of sentence review, perhaps the most forceful of which was issued by Court of Appeals Judge Shepherd, concurring in Rutherford, supra, pp 279-282:

■ My concern is that the present framework of sentence review provides no surer means of curing such abuses than existed prior to Coles, supra. Reliance upon the "conscience of the appellate court” will not result in justice evenly applied across the state, for we, like members of society generally, vary in what our consciences dictate.

[I]f there is a lack of any direct connection between the guidelines and Coles review, we are left with insufficient means to evaluate the relative excessiveness of the sentences before us. If we cannot rely upon the guidelines to help form a more educated appellate "conscience,” we are left again in a realm of subjectivity, "with confidence in the criminal justice system correspondingly diminished.” Coles, p 542.

. . . Coles and the guidelines were designed to minimize the impact of a judge’s personal conscience and to create a more rational and uniform basis for sentencing. We should not labor under the illusion that this has been accomplished. In fact, it will never be accomplished until the Court of Appeals has been given standards to apply which remove sentence review from the same nebulous and arbitrary criteria which still exist in the trial courts. It is one thing to say that trial and appellate courts must be given a degree of flexibility so that each case may be adapted to its circumstances; it is quite another to base that flexibility upon a foundation no more solid than the personal consciences of individual judges.

I respectfully invite the Supreme Court to grant leave in the present case and help us to resolve these fundamental difficulties in sentence review.[¹⁶]

Having concluded that the "shock the conscience” standard is inadequate, we must articulate a rule which improves upon that standard before we cast it aside. A new rule must be less subjective than the old rule, and it should offer more effective protection against unjustified sentence disparity. More importantly, we believe that because the responsibility for defining our criminal laws is rooted firmly in legislative territory, the rule must comport with the intent of the Legislature to the extent that a legislative intent is discernible regarding individual sentencing decisions. We next consider the legislative sentencing scheme which forms the foundation of the standard we adopt today.

IV. PROPORTIONALITY

When the legislative scheme for criminal sentencing is viewed across the spectrum of crimes from misdemeanor traffic violations to cold-blooded murders, two aspects are immediately clear. First, the Legislature has endeavored to provide the most severe punishments for those who commit the most serious crimes. The crime of murder, for example, is punishable by a longer term than is the lesser included crime of assault. Second, offenders with prior criminal records are likewise subject to harsher punishment than those with no prior convictions, as reflected in the general and specific habitual offender provisions of the penal statutes. These two elements combine to form what might be called the "principle of proportionality.” As stated over three quarters of a century ago by the United States Supreme Court, "[I]t is a precept of justice that punishment for the crime should be graduated and proportioned to the offense.” Weems v United States, 217 US 349, 367; 30 S Ct 544; 54 L Ed 793 (1910). In more recent times, the Court has found defects of constitutional magnitude in sentences which are disproportionate to the offense. For example, in Coker v Georgia, 433 US 584, 592, n 4; 97 S Ct 2861; 53 L Ed 2d 982 (1977), the Court stated:

Because the death sentence is a disproportionate punishment for rape, it is cruel and unusual punishment within the meaning of the Eighth Amendment even though it may measurably serve the legitimate ends of punishment and therefore is not invalid for its failure to do so.

Turning from the legislative felony sentencing scheme in general to the prescribed punishment for individual felonies, we note that the Legislature has, with only a few exceptions, provided a range of punishment for each felony. 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.

The Legislature then left to the judiciary, with regard to most crimes, the task of determining the sentence to be imposed upon each offender within given bounds. 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. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender.¹⁷

To reiterate, we believe that the purpose of the Legislature in creating sentence ranges and, thereby, providing for discretion in sentencing was to allow the principle of proportionality to be put into practice. We are thus persuaded that the purpose of discretionary¹⁸ sentencing was not to accommodate subjective, philosophical differences among judges.¹⁹ In the course of reviewing thousands of sentences since our decision in Coles, we have observed that different sentencing judges often subscribe to markedly different sentencing philosophies. For example, some judges may feel that any commission of a certain felony, even though the facts surrounding a particular criminal episode clearly do not justify worst-case treatment, should be answered with the maximum possible sentence. Much of our discussion in § n regarding subjectivity and unjustified disparity is equally applicable in this context. With regard to the principle of proportionality, it is our judgment that the imposition of the maximum possible sentence in the face of compelling mitigating circumstances would run against this principle and the legislative scheme.²⁰ Such a sentence would represent an abdication — and therefore an abuse — of discretion.²¹ The trial court appropriately exercises the discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination.

V. PROPORTIONALITY AND APPELLATE REVIEW OF SENTENCES

Where a given case does not present a combination of circumstances placing the offender in either the most serious or least threatening class with respect to the particular crime, then the trial court is not justified in imposing the maximum or minimum penalty, respectively.²² Accordingly, if the maximum or minimum penalty is unjustifiably imposed in this regard, contrary to the legislative scheme, the reviewing court must vacate the sentence and remand the case to the trial court for resentencing. The discretion conferred by the Legislature does not extend to exercises thereof which violate legislative intent; such exercises are, therefore, an abuse of discretion.

To be sure, the determination whether a sentence is so disproportionate to the seriousness of the circumstances of the crime as to require resentencing becomes considerably more difficult where the sentence does not represent the minimum or maximum allowable for a given crime.²³ Moreover, this difficulty may be compounded where the Legislature has set no minimum or has prescribed a maximum of a lengthy term of years or life.

Fortunately, since the publication of Coles in 1983, an invaluable tool for gauging the seriousness of a particular offense by a particular offender, as well as the disparity in sentencing between courtrooms, has been developed. In 1984 and 1985, we issued administrative orders requiring judges of this state to use the first edition of the Michigan Sentencing Guidelines. Administrative Order No. 1984-1, 418 Mich lxxx (1984); Administrative Order No. 1985-2, 420 Mich lxii (1985). As explained in McComb, An overview of the second edition of the Michigan Sentencing Guidelines, 67 Mich B J 863, 864 (1988),

Since that time, the guidelines have remained in use statewide. The guidelines staff has assembled a data base of about 70,000 cases, and the Supreme Court and the Court of Appeals have begun to develop a body of case law on issues related to the guidelines (e.g., People v Walker, 428 Mich 261; 407 NW2d 367 [1987], People v Broden, 428 Mich 343; 408 NW2d 789 [1987], and People v Fleming, 428 Mich 408; 410 NW2d 266 [1987]). Since the guidelines took effect, the overall compliance rate has been in the vicinity of 80%. In addition, Michigan has seen the elimination of statistically significant racial disparity in sentencing in all of the nine crime groups.

The sgac has continued throughout the years to work on improving the guidelines. It has had the benefit of detailed statistical analyses of the committee’s substantial data base. The judges’ departure reasons have also been considered. Informal communication from bench and bar have also brought to the committee’s attention areas in which improvements are needed.

It became apparent that the point values for the prvs and ovs, the 3x6 grid structure, and the recommended sentences were not consistent with current sentencing practice or with each other (or both). In any case, there were many instances in which the offenders in a given grid cell were, in fact, not similar in terms of the factors most salient to the sentence. This, in turn, meant that no set of recommended ranges was likely to ensure compliance.

To rectify these problems, the sgac began reexamining the extent to which the sentencing guidelines scoring system comported with actual judicial sentencing behavior. The conclusion reached by the sgac and State Court Administrative Office staff was that the guidelines needed to better capture the reasoning process of the sentencing judges. Sparing the intermediate steps, the result of several years of work by the sgac can be summarized as follows: the scoring system, grid configuration, and recommended sentence ranges have been revised so that they are both similar to the main currents of judicial decision-making and consistent with one another. As such, the second edition distinguishes clearly between factors of greater importance and factors that are less significant, thereby providing a ñrm foundation for the location of classes of offenders who are indeed similarly situated.

The guidelines represent the actual sentencing practices of the judiciary, and we believe that the second edition of the sentencing guidelines is the best "barometer” of where on the continuum from the least to the most threatening circumstances a given case falls.

Nevertheless, because our sentencing guidelines do not have a legislative mandate,²⁴ we are not prepared to require adherence to the guidelines. We note that departures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing. For example, as the dissent points out, a sentencing judge could legitimately depart from the guidelines when confronted by the unlikely prospect of a one hundred-time repeat offender, since the guidelines do not take such extensive criminal records into account. In addition, we emphasize that the guidelines should continue to reflect actual sentencing practice. To require strict adherence to the guidelines would effectively prevent their evolution, and, for this reason, trial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.²⁵

However, because of the increased sophistication of the second edition of the guidelines and because they represent the sentencing practices of the great majority of our state’s sentencing judges, they become a useful tool in carrying out the legislative scheme of properly grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments. We believe that the gradation of recommended sentencing ranges within the guidelines indicates not only that the full statutory range of possible sentences is being used, but also that the recommended ranges increase as the factors that are adequately represented in the guidelines become more serious. For this reason, we believe that it is safe to assume that in the eyes of the vast majority of trial judges who have chosen to impose sentences within the guidelines ranges, the guidelines reflect the relative seriousness of different combinations of offense and offender characteristics.

It is worthwhile to note again in this context the concerns of Judge Shepherd, concurring in People v Rutherford, supra, pp 280-281.

If the guidelines did set binding limits on the trial court’s discretion, I would be constrained to remand when the judge states reasons for departing from the guidelines which are already considered therein. The problem we face in these cases is that the guidelines include factors such as the severity of the offense, the past record of the defendant, and the sentences historically imposed throughout the state. If the trial judge justifies a departure from the guidelines by stating that he does so because of the nature of the offense and the record of the offender, the trial court has considered these factors twice. If we say that the trial judge may, in an individual case, place greater emphasis on any given factor by simply announcing on the record his intention to do so, the guidelines become nothing more than a litany of magic words used to mask the imposition of subjective, arbitrary and disparate sentences — the very problem which Coles and the guidelines were designed to eliminate. If the sentencing judge is not held to have abused his discretion by emphasizing a factor already included in the guidelines as a basis for departing from them, and if the record is devoid of evidence showing whether a sentence beyond the guidelines is disparate, we are furnished with no basis other than our own subjective reactions upon which to base a decision. The risk of imposing an arbitrary and disparate sentence is thus shifted from the trial courts to the Court of Appeals.

These observations are well taken. Even though sentencing within the guidelines is recommended rather than compulsory, departures from the guidelines, unsupported by reasons not adequately reflected in the guidelines variables, should nevertheless alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme.

We believe that the discretion of trial courts adhering to the guidelines is not unduly restricted, since the recommended sentence range in a given cell of the guidelines is generally quite broad. We thus reject again²⁶ the dissent’s suggestion that it is at all possible to "replace discretionary sentences with the more nearly determinate sentences set forth in the grids” (post, p 687), for the grids, far from setting forth specific sentences, instead set forth a range of possible minimum sentences from which a judge intending to stay within the guidelines can choose.

Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines.²⁷ A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality. See People v McKinley, 168 Mich App 496, 512; 425 NW2d 460 (1988). ("We do not dispute that a prison sentence — even a lengthy one — is in order. We conclude, however, that a fifteen-year minimum sentence for the events that occurred here is disproportionate to the specific acts committed and the danger involved. Too frequently reasons are given for a sentence that apply equally to a lesser or greater sentence unless an explanation is offered on the record for the speciñc sentence given. Such was the case here.”) (Emphasis added.)

In some cases, there may be important sentencing factors that are not included in the sentencing guidelines. Perhaps the clearest example of such a factor is the prior relationship, if any, between the victim and the offender. The Sentencing Guidelines Advisory Committee has sought to identify variables that are uniformly mitigating or aggravating.²⁸ A prior relationship between a victim and an offender can be a very mitigating circumstance or a very aggravating circumstance, depending upon the history of interaction between the parties. Other important aspects of the case might not be found among the guidelines’ variables, if these aspects do not occur frequently in criminal cases or cannot be neatly scored on a numerical scale.

Conceivably, even a sentence within the sentencing guidelines could be an abuse of discretion in unusual circumstances. See People v Broden, 428 Mich 343, 354, n 18; 408 NW2d 789 (1987). As noted above, in the interest of allowing the guidelines to continue to evolve, trial judges shall remain entitled to depart from the guidelines if the recommended ranges are considered an inadequate reflection of the proportional seriousness of the matter at hand. Just as the guidelines may not be a perfect embodiment of the principle of proportionality, so too may a sentence within the guidelines be disproportionately severe or lenient. Thus, contrary to the implication of the dissent’s repeated observation that departures may be risked only "on pain of reversal” (post, pp 670, 692), the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.²⁹

VI. THE POSITION OF THE DISSENTING OPINION

The gravamen of the dissent is that the enormous sentencing discretion which the Legislature left to the judiciary is, in sharp contrast to every other discretionary sphere of judicial activity, to be exercised at will in the trial court to the extent that appellate courts may do nothing more than assure themselves that the trial court has not exceeded the statutory maximum.

Seven years ago in Coles, however, we unanimously rejected the very position now advocated in the dissenting opinion. Coles, supra, p 535.

To adopt the position of the dissenting opinion— that the scope of sentence review should be so narrowly circumscribed that any sentence up to the statutory maximum must be upheld on appeal —would be to turn back the clock not just seven years to the pre-Coles era, but a full eighteen years to undercut the validity of our landmark decision in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), in which we held that the minimum term of incarceration in sentences imposed under the indeterminate sentence act could not be greater than two-thirds of the maximum term.

In Coles, supra, p 547, this Court canvassed the aba standards and the practices in other states, concluding:

[O]ur research indicates that there are at most only ten states in this country which do not allow any form of appellate review of sentences. The remaining states, either by statute, court rule, or case law, allow some form of appellate review of sentences, although the scope of review varies widely from state to state.

And since Coles, the national trend has pushed forward. Our sister states have continued to adopt a variety of measures to diminish the recognized evils of disparate sentencing.³⁰

Professor Nagel, in her comprehensive article on sentencing in the federal system, relates the following:

With utmost candor, Judge Frankel pierced the veiled myth of prisons as rehabilitative, and unfettered judicial discretion as right minded, when he concluded from his experience that unlike medical diagnoses, with criminals it is impossible to determine when, if ever, the "patient” will be "cured.” Many echoed the systematic failure of coercive rehabilitation. . . .

If there were any who clung to indeterminate sentencing for reasons other than its alleged tie to rehabilitation, now shown to be devoid of any empirical support, the outpouring of research on the other theme — disparity—paved the way for the emergent commitment to restructuring discretion. Justice Potter Stewart, writing as early as 1958, noted: "It is an anomaly that a judicial system which has developed so scrupulous a concern for the protection of a criminal defendant throughout every other stage of the proceedings against him should have so neglected this most important dimension of fundamental justice.” This dimension was "equal justice under the law.” [Shepard v United States, 257 F2d 293, 294 (CA 6, 1958).]

Disparity studies multiplied; consistently, the results revealed gross variations that could neither be explained by rational categorization of criminals, nor justified by referring to treatment goals. . . .

On reflection, it appears that Congress chose to heed the calls of Judge Marvin Frankel and the cadre of other distinguished legal scholars joining him to combat head on the unacceptable consequences of unfettered discretion. [Nagel, pp 896-899.][³¹]

We do not share the dissent’s belief that the effect of today’s decision will be to drastically curtail the discretion and flexibility of our sentencing judges. We thus reject the dissent’s suggestions that the result of our opinion is to "circumscribe a trial court’s statutory authority to tailor minimum sentences to the particular offender and the particular offense” (post, p 670); that a "trial judge may no longer apply personal experience, education, intuition, or judgment to draw inferences from evidence to determine the appropriate sentence for a given offender” (post, pp 671-672); that to "hold a given penalty unlawful ... is simply to say there is no discretion” (post, p 687); and that our decision will irrationally "compel a trial judge who hopes to impose a just sentence to treat the individual convicted of one hundred prior felonies the same as the defendant who committed two such felonies” (post, p 685).

The unspoken assumption underlying these claims appears to be that appellate review of discretionary decisions is equivalent to the wholesale destruction of discretion itself. Discretion, however, is a matter of degree, not an all or nothing proposition. The dissent’s assumption and the conclusions that follow from it are untenable. They are refuted by the fact that trial judges throughout this state are ably exercising their full discretionary responsibilities over a wide range of matters that come before them, knowing that they are subject to review on an abuse of discretion basis according to law, developed in cases such as this, which sets parameters and standards for the exercise of that discretion.

It is unquestionably the trial court, and the trial court only, which is empowered to hand down a sentence. It is just as unquestionable that the trial court alone is empowered to conduct a trial, fashion equitable remedies, grant divorces, award alimony and child support, terminate parental rights, and fulfill all of the innumerable other judicial responsibilities that are vested in the trial bench. And, of course, it is the responsibility of the appellate courts, and the appellate courts only, to carry out their function, which is to review the performance of judicial functions in the trial court. If and when it is determined that a trial court has pursued the wrong legal standard or abused its judicial discretion according to standards articulated by the appellate courts, it falls to the trial court, on remand, to exercise the discretion according to the appropriate standards. Thus, while it is true that the trial courts will continue to impose sentences “on pain of reversal” (post, pp 670, 692), the same can be said of every discretionary trial court decision.³²

We likewise disagree with the accusations that we seek to impose our philosophy on the trial judges (post, pp 670-671), and that we are guilty of assuming our "sentencing philosophy is somehow superior to the trial court’s judgment” (post, p 684). We certainly do not for a moment suggest that our philosophy is superior to that of anyone. We do work on the assumption that it is the appellate courts, in reviewing thousands of cases, that must and do get a sense of that disparity and that ultimately must interpret the legislative will. And it is the guidelines, which reflect the sentencing practices of the trial bench, that can help the appellate courts assess disparity.

We do not suggest that in the day-in-day-out review of sentencing issues appellate courts should simply substitute their judgment for that of the trial court. Indeed, such de novo review of sentences would be unprecedented in the realm of criminal appeals and at odds with any reasonable construction of the term "abuse of discretion.”

The dissenting opinion contains no authority for the policy view that, unlike all other areas of the law where judges are given discretion, sentencing discretion ought not to be reviewable. The dissent not only disregards Coles, but, in arguing that its position carries the blessing of the Legislature, fails to cite any statutory authority for the proposition that the result of that case — that sentencing decisions are subject to appellate review — has been overruled by statutory enactment. Indeed, the only provision which the dissent cites addresses not appellate review, but merely the authority to impose sentences, post, p 680, n 19, a task which, like innumerable other reviewable judicial duties, belongs in the province of the trial court. This unremarkable statutory provision does not support the conclusion that appellate review of sentencing decisions is foreclosed. Despite the accusation of the dissent, while an increase or decrease in the prison population may result from a decision of this Court,³³ it is not, nor should it be, a legitimate goal or purpose of an appellate court to consider such effects. It is our duty and purpose to find meaning in the discretionary range provided in the criminal code and to see to it that it is carried out.

VII. APPLICATION OF THE STANDARD OF SENTENCE REVIEW

We find that the imposition of the maximum possible sentence on Mr. Milbourn for the acts he committed clearly violated the principle of proportionality and therefore constituted an abuse of discretion. We have reviewed with care the entire record of this matter and, with all respect for the trial judge’s difficult determination, we are persuaded that the breaking and entering committed by the defendant does not rise to a level of seriousness that warrants the most severe penalty the law can inflict for that crime. We therefore conclude that the trial court abused its sentencing discretion, violating the intent of the Legislature to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender, and that resentencing is therefore required.

The facts of the instant case, to be sure, do not constitute a typical burglary; whereas a more typical crime of that sort involves entry into the home of a stranger for the purpose of committing a larceny or an assault, Mr. Milbourn broke into an apartment in which he himself had resided for the apparent purpose of making an emotional and destructive statement about the breakup of his relationship with the complainant. The acts accompanying the acts for which Mr. Milbourn was sentenced to the maximum term of ten to fifteen years were visited against property rather than persons.

The prior relationship of the defendant and the victim does not appear to be an aggravating factor in this case. Mr. Milbourn did not have a long history of hostile acts against the complainant, and he had not at the time of this offense engaged in other malicious behavior toward the victim.

The burglary statute under which Mr. Milbourn was convicted proscribes a broad range of criminal conduct: it imposes liability for breaking and entering "with intent to commit any felony or larceny . . . ,”³⁴ This provision thus encompasses not only entries with intent to maliciously destroy personal belongings, but also those accompanied by an intent to murder, assault, rape, steal or commit arson.

In our discussion of proportionality, we observed that the Legislature has determined to visit the stiffest punishment against persons who have demonstrated an unwillingness to obey the law after prior encounters with the criminal justice system. Mr. Milbourn was a young man and, at the time the instant offense was committed, he had no criminal record.

The facts of this case did not, in short, justify imposition of such a severe sentence. The trial judge, by sentencing Mr. Milbourn to the maximum possible term, has left no room for the principle of proportionality to operate on an offender convicted of a breaking and entering who has a previous record for this kind of offense or whose criminal behavior is more aggravated than in Mr. Milbourn’s case.³⁵ The dissent has more graphically set forth the series of events consisting of assaultive behavior and destruction of property between December 18, 1984, and January 3, 1985, that were directed at the defendant’s former live-in companion. While the defendant was clearly out of control during this period in which he was arrested three times and out of which he was prosecuted twice, it is still a fact that it was essentially one episode of irrational and destructive behavior directed at the same victim. We would not suggest that these acts in their totality do not merit imprisonment or a departure from the guidelines. We do, however, conclude that they do not rise to the maximum penalty that the Legislature has prescribed for the crime of which he was convicted.³⁶

VIII. APPLICABILITY OF THIS DECISION

As in Coles, supra, p 551, it is our judgment that our present decision to modify the nature of appellate sentence review applies to: (1) currently pending appeals in which the issue of sentence length has been raised and preserved,³⁷ (2) currently pending first appeals in which the appellant’s initial brief has not yet been filed, and (3) appeals filed after the date of this decision.

IX. RELIEF

For the reasons set forth above, we vacate Mr. Milbourn’s sentence and remand the case to the trial court for resentencing.

Levin, Cavanagh, Archer, and Griffin, JJ., concurred with Brickley, JJ.

1 MCL 750.110; MSA 28.305.

2 For purposes of this opinion, sentence "disparity” and "equity” refer to the relationship of sentences of similarly situated offenders, whereas "proportionate” and "disproportionate” refer to the relationship of an individual sentence to the seriousness of the matter for which it was imposed.

3 See Nagel, Structuring sentencing discretion: The new federal sentencing guidelines, 80 J Crim L & Criminology 883 (1990), and sources cited therein.

4 Mr. Milbourn was sentenced by Judge Kallman in the Ingham Circuit Court to one year in the county jaü as a result of this plea.

5 We find nothing in the record to support the suggestion in the dissenting opinion that the defendant had a "homicidal bent against the complainant” (post, p 686), or that it was "sheer fortuity” that the victim was not killed by the defendant (id.).

6 At the time he was sentenced for this offense, he had pled guilty of attempted malicious destruction of property, and was awaiting sentencing.

⁷

8 This case fell into the A-m cell of the 180-month burglary grid. Under the second edition of the guidelines, Milboum would apparently fall in cell b-iii of the 180-month burglary grid. The recommended range in that cell is zero to eighteen months.

9 [The defendant] has a violent temper and goes into fits of rage. [The defendant] broke into [his] former girlfriend’s apartment and cut up and destroyed her belongings. When in a rage, [the defendant] is very dangerous.

10 People v Milbourn, unpublished opinion per curiam of the Court of Appeals, decided February 24, 1987 (Docket No. 85990). Milbourn had earlier moved the Court of Appeals for a remand to the trial court, for the purpose of conducting an evidentiary hearing as to the sentencing practices of the judge who imposed the sentence in this case. This motion was denied by the Court of Appeals.

11 We granted leave to appeal "[ljimited to the issue whether the 10-to 15-year sentence here, which was four times the high range of the Sentencing Guidelines, was an abuse of discretion or shocking to the conscience under People v Coles, 417 Mich 523 (1983).” People v Milbourn, 429 Mich 858 (1987).

12 Further, we weighed heavily the conclusions of this Court’s Committee on Sentence Review, chaired by Judge Daniel F. Walsh of the Court of Appeals.

13 This conclusion accords with Standard 20-1.1 of the 4 American Bar Association’s Standards for Criminal Justice (2d ed), except that Standard 20-l.l(d) states that "[t]he prosecution should not be permitted to appeal a sentence on the grounds that it is too lenient.” This Court has placed no such limitation upon the prosecutor’s right to appeal a sentence.

14 There are roughly a dozen cases in each category.

15 See, e.g., Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). In that case, the appellant sought an increase in child support from $35 per week to $50 per week. The judge granted an increase to $42.50 per week, and the appellant appealed to this Court, seeking the Ml amount requested. In denying relief, the Spalding Court articulated an extremely deferential definition of the term "abuse of discretion”:

The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made. [Id., pp 384-385.]

16 See also Line, supra (concurring opinion of Ravitz, J.); People v Landis, 139 Mich App 120; 361 NW2d 748 (1984) (dissenting opinion of Kelly, J.).

17 Addressing questions not before us today, Justice Brennan explained that the Legislature "leaves the setting of the minimum sentence to the court for the very purpose of creating latitude so as to relieve from the maximum penalty those defendants whose conduct contained some circumstances of mitigation, or at least no circumstances of aggravation.” People v Sinclair, 387 Mich 91, 151; 194 NW2d 878 (1972).

18 Throughout the dissenting opinion, the terms "indeterminate” sentencing and "discretionary” sentencing are used interchangeably. The dissent is clearly in error in suggesting that today’s opinion will have any effect on indeterminate sentencing.

An indeterminate sentence is one whose precise duration is unknown at the time of sentencing. See, e.g., People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972) ("[A] sentence with too short an interval between minimum and maximum is not indeterminate”). The exact amount of time to be served within the range set by the trial judge is determined according to postsentencing factors by persons other than the judge. The Legislature has determined that indeterminate sentencing shall be the rule in Michigan, and this Court carried out that intention in Tanner by holding, in harmony with aba standards, id., p 689, that the minimum term of an indeterminate sentence must be no more than two-thirds of the legislative maximum for that crime. Therefore, sentences meted out before and after today’s decision have been and will remain indeterminate in accordance with Tanner.

Discretionary sentencing, of course, is a different matter. Under that concept, unless otherwise specified, the sentencing judge has discretion in selecting a minimum sentence between the legislative minimum and, in accordance with Tanner, two-thirds of the maximum time prescribed by the Legislature. (Tanner, by enforcing the legislative scheme of indeterminate sentencing, incidentally limited the sentencing discretion of the trial judges.) In Michigan, most sentences are imposed under the discretionary/indeterminate scheme, according to which a sentencing judge can select a range of time a person must serve but not the precise length of the sentence. There are also nondiscretionary/indeterminate sentences, in which the judge has no discretion to depart from a specific predetermined range (some drug crimes have employed this scheme); discretionary/determinate sentences, in which the judge can pick the exact period of time that the convicted person must serve (misdemeanors fall into this category); and nondiscretionary/determinate sentences, in which the statute provides for the specific time to be served, as is prescribed for first-degree murder (mandatory life) and possession of a firearm during the commission of a felony (two years). We can only assume and will presume that, in the sense of the above definitions and classifications, the dissent is leveling its criticism not at the determinate/indeterminate facet of our sentencing scheme, but at the interference with its preference for absolute discretion.

Perhaps the most misleading misuses of terms by the dissent are the inaccurate suggestions that "indeterminate sentencing is a legislative delegation of constitutional authority to trial judges to tailor their sentences to the particular offender and the particular offense” (post, pp 680-681, emphasis added); and that it is possible to "replace discretionary sentences with the more nearly determinate sentences set forth in the grids” (post, p 687). Nothing within the present opinion is intended to or can possibly be expected to affect indeterminate sentencing in Michigan.

19 See Coles, supra, p 546 ("[D]isparity in sentences which results from . . . the personal bias and attitude of an individual sentencing judge is unjustified and impermissible”).

20 Generally, the maximum possible sentence a trial judge may impose under our indeterminate sentencing scheme is one whose minimum term is two-thirds of the statutory maximum. See the discussion of Tanner, n 18 supra.

21 See Levin, Toward a more enlightened sentencing procedure, 45 Neb L R 499 (1966) ("[W]e are attempting to eliminate the disparities in the sentences meted out by different judges .... We strive not to achieve uniform sentences but to acquire a uniform philosophy which includes the ingredients that lead to a sentence — one in keeping with enlightened social and legal policy”).

22 See n 20.

²³

24 In some other states, a sentencing judge may not depart from the guidelines unless the judge has identified "clear and convincing” or "substantial and compelling” reasons. Florida Rules of Criminal Procedure, Rule 3.701(d)(ll); Minnesota Sentencing Guidelines and Commentary, Statement of Purpose and Principles, ¶ 4; Wash Rev Code Ann, § 9.94A.120(2).

There are also a number of states that permit a judge to depart from a presumptive sentence if there are aggravating and mitigating circumstances. Higher standards are imposed by some of these statutes. Alas Stat, §12.55.155(0; 5 Ariz Rev Stat Ann, § 13-702(E); NJ Stat Ann, § 2C:44-1f.(l), (2); 7A Tenn Code Ann, §§ 40.35.105-40.35.108. See also Cal Penal Code, § 1170(b).

There is a more complex departure policy in the federal guidelines.

[T]he Sentencing Reform Act, despite its vast efforts to structure and constrain judicial discretion, nonetheless provided for judges to depart when they found "that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.” [Nagel, supra, p 938, quoting 18 USC 3553(b).]

25 Such trial court decisions remain, of course, subject to review in accordance with this opinion.

26 See n 18.

27 The Court of Appeals explained in People v Morin, 144 Mich App 142, 144; 372 NW2d 691 (1985), that cases have held that a judge may depart from the guidelines on the basis of a factor that is already included within the sentencing guidelines. We decline to overrule those cases, since there will be occasions when the conduct or the criminal record to be scored under the sentencing guidelines is extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines. Nevertheless, we believe that the judge’s right to depart in this fashion should be exercised with caution.

28 In selecting variables for inclusion, the Sentencing Guidelines Advisory Committee has sought to identify variables that would be (a) nonprejudicial, (b) uniformly mitigating or aggravating, (c) frequently occurring, (d) related to the goals of sentencing, and (e) "objective” in the sense that one could write instructions that would lead most people to be able to reach the same categorical decisions. McComb, An overview of the second edition of the Michigan Sentencing Guidelines, supra. In light of these ground rules, the committee understood and intended that the guidelines would not contain every consideration that can properly be weighed in imposing sentence.

29 The guidelines do not address all crimes or even all felonies. Sentences for crimes not included in the guidelines, of course, remain reviewable under the principle of proportionality.

30 At present, it appears that approximately five states do not allow defendants to appeal their sentences.

31 See § ni(B) for additional discussion of some of the unacceptable consequences of unfettered sentencing discretion.

32 The dissent levels against this opinion the charges that our decision is "a resounding vote of 'no confidence’ in the ability of trial judges to operate in a fundamentally fair manner” and that it is "an indictment of the sentencing judge.” (Post, p 701.) We find it regrettable that our colleague finds it necessary to employ such rhetoric, especially in that it adds so little to the resolution of a seemingly intractable problem that is plaguing the administration of justice across the country.

33 The most recently available departure statistics indicate that sentencing judges more frequently depart below the guidelines’ recommended ranges than above. Thus, the dissent errs in suggesting that the majority of this Court feels "compelled” to reduce the prison population. (Post, p 692.)

34 MCL 750.110; MSA 28.305 (emphasis added).

35 It is immaterial to the result that Mr. Milbourn was sentenced under the first edition of the guidelines. First, resort to the guidelines is not necessary where the most severe possible sentence has been imposed in a case as replete with mitigating factors as the present. Second, it is the second edition of the guidelines, not the first, which more accurately reflects the relative severity of particular cases and which, therefore, is the most useful available tool for conducting a proportionality analysis even where the sentence was imposed pursuant to the first edition.

36 Judge Kallman, prior to the conviction in this case, took a plea from the defendant in the neighboring county of Ingham for attempted malicious destruction of property and, because his sentence was imposed after that of Judge Shuster, presumably had before him all of the same information about the defendant and his activities. Judge Kallman declined to impose the maximum sentence. Furthermore, although Judge Kallman could have decided to impose a sentence on Mr. Milbourn which would run consecutively to that handed down by Judge Shuster, he determined not to do so. See People v Chambers, 430 Mich 217; 421 NW2d 903 (1988) (when an offender commits a crime while free on bond for a prior felony, the judge last to sentence the offender may impose a consecutive sentence).

37 The dissent has attached an appendix said to prove “how frequently the guidelines fail to reflect the seriousness of the crime or the offender’s prior criminal history.” (Post, p 695.) We caution against an assumption that any case held in abeyance pending the release of a given opinion is considered likely to be affected by that decision.

By the same token, we caution against the assumption that we have formed any opinion regarding either the dissent’s characterization of the factual underpinnings of these cases, or their proper resolution, despite the dissent’s admitted willingness to delve into review of the merits of those cases absent briefing and oral argument.