People v. Szczesniak

Michigan Court of Appeals

People v. Szczesniak

465 N.W.2d 22, 186 Mich. App. 492

CourtMichigan Court of Appeals

DecidedSeptember 19, 1990

DocketDocket 120491

StatusPublished

Cited by2 cases

This text of 465 N.W.2d 22 (People v. Szczesniak) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Szczesniak, 465 N.W.2d 22, 186 Mich. App. 492 (Mich. Ct. App. 1990).

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Opinion

*493 Per Curiam.

Defendant pled nolo contendere in Detroit Recorder’s Court to one count of assault of a police officer with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), pursuant to a plea bargain. Under the terms of the agreement, one count of delivery of less than fifty grams cocaine, MCL 333.7401(2)(a) (iv); MSA 14.15(7401)(2)(a)(iv), and four counts of assault with intent to murder were dismissed.

In a separate action in the Macomb Circuit Court, defendant was convicted of assault with intent to murder and felony-firearm. He was sentenced in that case to consecutive terms of thirty to forty-five years and two years.

The Recorder’s Court judge concluded that he could not sentence defendant to a prison term of ten to twenty-five years determined under the sentencing guidelines because of our Supreme Court’s ruling in People v Moore, 432 Mich 311; 439 NW2d 684 (1989). As a result, the trial court deviated from the sentencing guidelines and imposed sentences of five to fifteen years and two years, to be served consecutive to the Macomb Circuit Court sentences.

On appeal by right, the people challenge the scoring of the sentencing guidelines and the trial court’s ruling with respect to the applicability of Moore. We reverse and remand for resentencing.

First, plaintiff challenges the trial court’s scoring of zero for offense variable No. 25, contemporaneous criminal acts. A sentencing judge has discretion in determining the number of points to be scored, provided there is adequate evidence to support a particular score. Where the established facts clearly do not permit the trial court’s scoring to stand, the appellate court will intervene. People v Reddish, 181 Mich App 625, 628; 450 NW2d 16 *494 (1989). Here, where defendant was originally charged with five contemporaneous crimes, there is no evidence to support a zero score for ov 25 .

Finally, subsequent to the sentencing in this case, our Supreme Court ruled that the trial court is not restricted by Moore when imposing consecutive sentences. People v Harden, 434 Mich 196; 454 NW2d 371 (1990). Although each sentence, examined independently, must comply with the dictates of Moore, the cumulative length of the sentences can exceed the maximum punishment allowable by law for any one of the offenses. Accordingly, the trial court incorrectly considered defendant’s Ma-comb Circuit Court sentence when imposing sentence in this case.

Reversed and remanded.

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*493 Per Curiam.

Defendant pled nolo contendere in Detroit Recorder’s Court to one count of assault of a police officer with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), pursuant to a plea bargain. Under the terms of the agreement, one count of delivery of less than fifty grams cocaine, MCL 333.7401(2)(a) (iv); MSA 14.15(7401)(2)(a)(iv), and four counts of assault with intent to murder were dismissed.

In a separate action in the Macomb Circuit Court, defendant was convicted of assault with intent to murder and felony-firearm. He was sentenced in that case to consecutive terms of thirty to forty-five years and two years.

The Recorder’s Court judge concluded that he could not sentence defendant to a prison term of ten to twenty-five years determined under the sentencing guidelines because of our Supreme Court’s ruling in People v Moore, 432 Mich 311; 439 NW2d 684 (1989). As a result, the trial court deviated from the sentencing guidelines and imposed sentences of five to fifteen years and two years, to be served consecutive to the Macomb Circuit Court sentences.

On appeal by right, the people challenge the scoring of the sentencing guidelines and the trial court’s ruling with respect to the applicability of Moore. We reverse and remand for resentencing.

First, plaintiff challenges the trial court’s scoring of zero for offense variable No. 25, contemporaneous criminal acts. A sentencing judge has discretion in determining the number of points to be scored, provided there is adequate evidence to support a particular score. Where the established facts clearly do not permit the trial court’s scoring to stand, the appellate court will intervene. People v Reddish, 181 Mich App 625, 628; 450 NW2d 16 *494 (1989). Here, where defendant was originally charged with five contemporaneous crimes, there is no evidence to support a zero score for ov 25 .

Finally, subsequent to the sentencing in this case, our Supreme Court ruled that the trial court is not restricted by Moore when imposing consecutive sentences. People v Harden, 434 Mich 196; 454 NW2d 371 (1990). Although each sentence, examined independently, must comply with the dictates of Moore, the cumulative length of the sentences can exceed the maximum punishment allowable by law for any one of the offenses. Accordingly, the trial court incorrectly considered defendant’s Ma-comb Circuit Court sentence when imposing sentence in this case.

Reversed and remanded.

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465 N.W.2d 22, 186 Mich. App. 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-szczesniak-michctapp-1990.

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