People v. Wybrecht

564 N.W.2d 903, 222 Mich. App. 160

• Court: Michigan Court of Appeals
• Decided: May 22, 1997
• Docket: Docket 185428
• Status: Published

Opinions

Griffin, P.J.

Pursuant to a plea bargain, defendant pleaded nolo contendere to three counts of criminal sexual conduct in the second degree, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). Thereafter, the trial court sentenced defendant to concurrent terms of two to fifteen years’ imprisonment and ordered defendant into custody. Almost two weeks later, the trial court stayed defendant’s sentences. The lower court then granted defendant’s motion for resentencing, and, on resentencing, reduced defendant’s concurrent sentences to ninety days in jail and five years’ probation. The prosecution appeals as of right. We reverse and reinstate defendant’s original sentences.

We hold that sentence review for compliance with the principle of proportionality is a function vested exclusively with the appellate courts. Further, because defendant’s original sentences were valid, the trial court lacked authority to order resentencing.

i

In June 1994, the victim’s mother informed the Ann Arbor police that defendant, the victim’s twenty-one-year-old uncle, had sexually molested her five-year-old son. On the strength of the victim’s preliminary examination testimony that defendant and the victim had repeatedly touched each other’s penises and performed fellatio on each other,¹ the district court bound defendant over for trial on two counts of first-degree and three counts of second-degree criminal sexual conduct. The district court also found defendant to be competent to stand trial, despite the effects of fetal alcohol syndrome that impeded defendant’s brain development and resulted in his low-average eighty-four intelligence quotient (IQ).

Thereafter, defendant pleaded nolo contendere in the circuit court to three counts of second-degree criminal sexual conduct in exchange for the withdrawal of the two first-degree criminal sexual conduct charges. Before sentencing, defendant submitted to the trial court a number of psychologists’ reports describing defendant’s condition and opining that prison may harm defendant.² The presentence report also detailed defendant’s disability and noted that his mental and emotional maturity approximates that of an eleven year old.³ Defendant’s probation agent recommended that, in order to “salvage this young individual,” defendant should receive medication and therapy and participate in a tethering program. However, a senior probation agent recommended a prison sentence because defendant “could be a threat to the general community; as a pedophile, [defendant] will be difficult to cure and it is well documented that pedophiles may seek multiple victims.”

The sentencing judge concluded that defendant should be sentenced within the guidelines, although he recognized that his sentencing decision was exceptionally difficult. After deliberation, the trial court sentenced defendant at the very low end of the guidelines’ range,⁴ ordered defendant into custody, and executed the judgment of conviction. Thirteen days later, defendant filed a motion to stay his sentence and a motion for resentencing. Attached to defendant’s motions were several psychologists’ reports (many of which had been referred to by defense counsel at sentencing) opining that prison may be detrimental to defendant.⁵ The trial court granted defendant’s motion for a stay and ordered that “defendant shall be kept in the county jail until further order of the court.”

Two weeks later, the trial court granted defendant’s motion for resentencing. In granting the motion, the sentencing judge stated:

I reviewed the materials and . . . have looked at the situation. And we know that the Court of Appeals has, on occasion, said that sentence is improper — its—its—on its face it appears to be legal but improper, but considering all the circumstances that it’s not.

I’ve — after review of the — I’ve attempted to look at it as though — not reviewing what I’ve done myself, but whether looking at it as the defendant’s entitled to, as are the People, but having somebody look at the total situation and see whether it appears that there is — it was proper or improper. And as the judge, of course, that did it, I’m the one that’s ultimately responsible for seeing that it’s properly done; and I’m — it is my decision that the defendant should be resentenced.

And I think — and the bottom line is, that is that I believe that I did not, perhaps, have all the information that I should have had and did not properly use the information that I did have. . . .

I want to just state for the record some of the factors that I’ve given more consideration to since. One is that — the defendant’s chronological age. Yes, I was aware of that but I don’t think that — in terms of what an appropriate sentence was, looking back at it, that I gave sufficient input to that. I agreed with the statement that defense counsel made that — about sending a child to prison. It’s — in fact, I’ve had the thought that there should be — -there must be some other way to deal with it. I don’t know. Depending on the circumstances sometimes there is not, but under the facts of this case that I’ve decided it’s wrong to make that the first option rather than the last option.

The information that I received that parole is not something that normally happens with offenses of this type in the first instance, which we’ve come to — we’ve all heard the stories of people being on the — out on the street before the judge has had time to get the paperwork done, and perhaps we expect that to happen in every case. And I don’t believe I had — if I had the information, I didn’t give it sufficient consideration that the defendant would — may well not be out on parole at the first instance.

The — I attempted, as I do, to sentence people within the guidelines. And I think that. . . they should not apply to the facts that we have here, and that the sentence that was imposed violates the principle of being proportionate considering all of the factors. I believe that, on reflection, had I considered all that evidence, that I would not have sentenced the defendant to prison. [Emphasis supplied.]

In resentencing defendant, the trial court stated:

The court recognizes that this sentence, is outside the guidelines. And for the reasons stated when I agreed to resentence the defendant and particularly because of the defendant and his developmental age, if that’s the proper term, and what may well happen to him if he does go to prison and the lack of the availability of early parole if he does go to prison, those are reasons for deviating from the guidelines.

n'

MCR 6.429(A) provides that the trial court “may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law.”⁶ Accord People v Thomas, 447 Mich 390, 393; 523 NW2d 215 (1994); In re Jenkins, 438 Mich 364; 475 NW2d 279 (1991); People v Kelly, 213 Mich App 8, 11-12; 539 NW2d 538 (1995). This court rule codifies the well-settled principle that the trial court lacks authority to set aside a valid sentence once the defendant begins serving it. Moore v Parole Bd, 379 Mich 624, 642; 154 NW2d 437 (1967); People v Connor, 348 Mich 456; 83 NW2d 315 (1957); People v Chivas, 322 Mich 384; 34 NW2d 22 (1948); In re Mason, 8 Mich 70 (1860); People v Catanzarite, 211 Mich App 573, 582-583; 536 NW2d 570 (1995); People v Williams, 65 Mich App 531, 533-534; 237 NW2d 545 (1975). Indeed, such an action may infringe upon the Governor’s commutation powers and intrude upon the parole board’s jurisdiction. In re Jenkins, supra at 368; People v Whalen, 412 Mich 166, 169; 312 NW2d 638 (1981); People v Freleigh, 334 Mich 306; 54 NW2d 599 (1952); People v Meservey, 76 Mich 223; 42 NW 1133 (1889); People v Erwin, 212 Mich App 55, 63; 536 NW2d 818 (1995); Wayne Co Prosecutor v Recorder’s Court Judge, 164 Mich App 740; 417 NW2d 594 (1987), aff’d In re Jenkins, supra. Thus, absent a tangible legal or procedural error that makes a sentence invalid, the trial court cannot alter a sentence that a defendant has begun to serve. In re Jenkins, supra at 368; Catanzarite, supra at 582-583; People v Councell, 194 Mich App 192, 193-194; 486 NW2d 350 (1992), citing Mich Ct R, p R 6.4-13; People v Jackson, 63 Mich App 249, 255; 234 NW2d 471 (1975).

In the present case, the trial court did not declare defendant’s prior sentences invalid on any established ground. See, generally, Whalen, supra at 169-170. Instead, the trial court reevaluated information it possessed at the original sentencing, reviewed additional information regarding defendant’s disability, and assessed defendant’s likelihood of early parole. After doing so, the trial court ruled that its original sentences violated the principle of proportionality, thereby entitling defendant to resentencing. On appeal, the prosecution argues that the trial court exceeded its authority by ordering resentencing because grounds for resentencing pursuant to MCR 6.429(A) did not exist. We agree.

A

The first issue is whether the trial court possesses authority pursuant to MCR 6.429 to reconsider its discretionary sentencing decisions and to order resentencing when it determines that its previously imposed sentences violate the principle of proportionality. See, generally, People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We conclude that it does not, and we hold that only appellate courts are authorized to invalidate sentences for lack of proportionality.

Neither before nor after the enactment of MCR 6.429(A) has the trial court possessed authority to alter inaugurated sentences on the basis of post hoc discretionary sentencing criteria.⁷ For example, in People v Fox, 312 Mich 577, 579; 20 NW2d 732 (1945), our Supreme Court held that the trial court erred in resentencing the defendant because “the sentence imposed was too severe; that at the time the sentence was imposed the court was not fully aware of the good character of the defendant, nor fully acquainted with all the facts and circumstances.” Id. Similarly, in In re Jenkins, supra, our Supreme Court held that the trial court erred in resentencing the defendant because, upon reflection, it was unable to explain the disparity between two codefendants’ sentences. In each case, our Supreme Court held that the trial court’s reevaluation of its own discretionary sentencing decision violated the axiomatic principle that the trial court cannot invalidate its sentences by simply changing its mind. In re Jenkins, supra at 377; Fox, supra at 581.

This principle has survived the emergence of appellate sentence review. See People v Coles, 417 Mich 523; 339 NW2d 440 (1983); see also Milbourn, supra; People v Moore, 432 Mich 311; 439 NW2d 684 (1989). In its decisions creating and articulating the scope of sentence review, our Supreme Court has focused exclusively on appellate sentence review. Neither Coles nor Milboum nor any other pertinent authority provides the trial court with the authority to review the proportionality of its sentences absent an appellate court directive. See Wayne Co Prosecutor, supra at 745. Vesting the trial court with such power would conflict with established doctrine prohibiting the trial court from revisiting sentencing decisions. Indeed, extending this power of sentence review to the trial court would contradict In re Jenkins, supra at 366, 370, 371, 373, where, after the emergence of appellate sentencing review, our Supreme Court reiterated the trial court’s lack of authority to reexamine its discretionary sentencing decisions.

In addition to the statutory, jurisdictional, and separation of powers issues, sound policy considerations militate against allowing the trial court to reconsider the proportionality of its sentences. As our Supreme Court observed in In re Jenkins, supra at 370-372:

We are persuaded that permitting the trial judge to revisit the sentencing decision may erode judicial accountability. Undermining the finality of the decision might foster carelessness or intrude upon the degree of conviction that ought to attend such a solemn pronouncement. In addition, when the judge who originally imposed the sentence is no longer on the bench or is unavailable, a new judge, unfamiliar with the record and without the benefit of observing live testimony, will be permitted to review the sentence, without the ability to closely tailor sentences to the unique facts of the particular case.

Moreover, recognizing defendant’s right to seek a reduced sentence “would doubtless lead to claims for recognition of the prosecutor’s right to petition the sentencing court for an increase of sentence.” Id. at 371-372. If both parties could implore the trial court to reconsider its sentencing decision, the resulting flood of resentencing motions would strain judicial resources. Id. at 371. In high profile cases, judicial autonomy would be called into question if the trial court could alter its sentences after the scrutiny of media publicity or the uproar of public opinion. Id.

Accordingly, although Coles does “add to the set of circumstances in which a sentence may be declared invalid,” Coles, supra at 540; see also People v Williams (After Second Remand), 208 Mich App 60, 64; 526 NW2d 614 (1994), the authority to review sentences must remain the exclusive “province of the appellate courts.” In re Jenkins, supra at 369. If the trial court could invalidate a sentence pursuant to MCR 6.429(A) by deeming it disproportionate, the court rule would efface the axiomatic principle it is intended to codify. Thus, absent a remand, the trial court may alter sentences through MCR 6.429(A) only when necessary to correct objectively definable sentencing errors as identified by our Supreme Court in Whalen, supra.8

B

We must also decide whether parties may seek to invalidate sentences by producing information after sentencing that, arguably, affects the proportionality of the sentence. Michigan’s sentencing system promotes informed, conscientious decision making by providing the parties an almost unlimited opportunity to submit pertinent information before sentencing. MCR 6.425(D)(2)(c); In re Jenkins, supra at 370. There is no authority that provides a right to submit personal information after sentencing. On the contrary, it is well settled that information disclosed after sentencing cannot impeach the validity of a sentence. See Whalen, supra; Fox, supra; People v Pfeiffer, 207 Mich App 151, 155; 523 NW2d 640 (1994); People v Pool, 183 Mich App 191, 192-193; 454 NW2d 121 (1989); People v Bingaman, 144 Mich App 152, 158-159; 375 NW2d 370 (1984). In fact, the parties cannot contest the trial court’s sentencing considerations once it begins pronouncing sentence. See People v Westbrook, 188 Mich App 615, 617; 470 NW2d 495 (1991); People v Davis, 142 Mich App 114, 117-118; 369 NW2d 272 (1985). Accordingly, especially where the information was discoverable before sentencing, defendant cannot impeach the validity of his sentence by submitting additional information after sentencing. Accord United States v Lopez, 26 F3d 512, 520 (CA 5, 1994); United States v Fraley, 988 F2d 4, 7 (CA 4, 1993). Should the reverse be true, the finality of the sentencing decision would be imperiled by constant attempts to seek out and submit additional facts after sentencing.

In the present case, defendant makes no claim that the information submitted after sentencing was unobtainable before sentencing. Thus, by failing to submit it before sentencing, defendant waived his right to have the information considered. Further, even if the information was not available until after sentencing, the information could not affect the validity of defendant’s sentence because it was cumulative to the information given the trial court before sentencing.⁹

Additionally, the lower court erred in resentencing defendant on the basis of new information regarding the likelihood of early parole for defendant. Parole eligibility is not a valid sentencing consideration. See People v Fleming, 428 Mich 408; 410 NW2d 266 (1987); People v Abbett, 199 Mich App 334; 501 NW2d 177 (1993), rev’d on other grounds 443 Mich 863 (1993). Thus, after-acquired information concerning the likelihood of early parole for defendant is not a viable grounds for resentencing.

c

Defendant also claims that his original sentences were invalid because the senior probation agent incorrectly characterized defendant as a pedophile. We disagree and hold that a sentence is not invalid because probation agents and a defendant’s psychologists use undisputed facts to draw conflicting conclusions about the defendant’s character. In People v Greene, 116 Mich App 205, 210; 323 NW2d 337 (1982), rev’d on other grounds 414 Mich 896 (1982), this Court found no error in the trial court’s failure to resolve a claimed inaccuracy in the presentence report where the defendant’s objection “was not to an alleged factual inaccuracy in the report but to a conclusion drawn from the undisputed facts.”

Similarly, the parties in this case dispute the psychological conclusion to be drawn from the undisputed facts. Here, a probation agent concluded that defendant is a pedophile because he sexually molested a young child and is likely to repeat his misconduct. On the other hand, defendant’s psychologists opined that, despite the child molestation, defendant lacks the mental capacity to be a pedophile. Neither party disputes the facts underlying either conclusion. Under these circumstances, and especially when the trial court was alerted to the dispute before pronouncing sentence, the failure to resolve the issue does not invalidate defendant’s sentence.

D

Defendant also claims that the trial court was authorized to resentence because of the stay issued before defendant was transferred from jail to prison. Again, we disagree. In In re Richards, 150 Mich 421, 426; 114 NW 348 (1907), our Supreme Court reiterated that “a trial court cannot set aside a valid sentence and impose a new and different one, after the defendant has been remanded to jail to await the execution of the sentence.” Accord People v Dotson, 417 Mich 940 (1983); People v Barfield, 411 Mich 700, 701-703; 311 NW2d 724 (1981); Meservey, supra at 226.

After pronouncing its original sentences, the lower court ordered defendant into the immediate custody of corrections officials. Defendant was in jail awaiting transfer to prison when the trial court issued the stay. In fact, the stay directed that defendant remain in jail until further order of the court. Under these circumstances, the sentencing judge lost his authority to resentence defendant because, by sending defendant to jail, “[the] authority over the prisoner had passed out of his [the judge’s] hands by his own order.” Meservey, supra at 226; accord In re Jenkins, supra at 368; Chivas, supra at 395-396; Bingaman, supra at 158-159.

m

Finally, defendant contends that, even if the lower court lacked authority to resentence, the original sentence is disproportionate under Milbourn, supra. However, this issue is not properly before us. MCR 7.207; Therrian v General Laboratories, Inc, 372 Mich 487, 490; 127 NW2d 319 (1964); People v Gallego, 199 Mich App 566, 575-576; 502 NW2d 358 (1993). Nevertheless, defendant’s original sentences were within the correctly scored guidelines’ range. Accordingly, the sentences are presumptively proportionate. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987); People v Cutchall, 200 Mich App 396, 410; 504 NW2d 666 (1993).

Defendant has not overcome the presumption of proportionality. People v Bailey (On Remand), 218 Mich App 645, 647; 554 NW2d 391 (1996); People v Price, 214 Mich App 538, 548; 543 NW2d 49 (1995). While baby-sitting, defendant repeatedly molested his five-year-old nephew. Contrary to defendant’s claim that his actions were akin to childlike sexual exploration, there is evidence that he told the victim that he would go to jail if the victim told anyone about the sexual abuse. Thus, defendant knew his actions were not only wrong, but criminal. Furthermore, although prison may have a profound effect on defendant, considerations about defendant’s welfare do not overcome the traumatic and permanent damage defendant’s severe misconduct had on his young victim. Additionally, the sentencing guidelines, within which defendant was sentenced at the very low end, do not fully reflect the gravity of defendant’s serious crimes because two first-degree criminal sexual conduct charges were dismissed pursuant to plea bargain. See People v Brzezinski (After Remand), 196 Mich App 253, 256; 492 NW2d 781 (1992); People v Duprey, 186 Mich App 313, 318; 463 NW2d 240 (1990). Under these circumstances, it strongly appears that defendant’s sentences are proportionate to the seriousness of the offenses and the offender. People v Houston, 448 Mich 312, 322; 532 NW2d 508 (1995); People v Girardin, 165 Mich App 264, 266; 418 NW2d 453 (1987).

The order granting defendant’s motion for resentencing is reversed and defendant’s sentences of ninety days in jail and five years’ probation are vacated. Defendant’s original sentences of concurrent terms of two to fifteen years’ imprisonment are reinstated.

D. B. Leiber, J., concurred.

1 The victim also testified that he and defendant once slept naked together in the same bed and ran around the house together without clothes.

2 The record does not reveal which reports were given to the trial court before sentencing. However, the sentencing transcript shows that the trial court received and read “a number of letters and psychological reports.” At sentencing, defense counsel referred to at least two of the psychological reports submitted with defendant’s motion for resentencing. Additionally, before pronouncing sentence, the trial court noted: “Certainly, . . . defendant and his family have done an excellent job with the information that was sent in.”

3 The presentence report also noted that defendant, a high school graduate with some college experience, holds a steady job at an Ann Arbor restaurant.

4 The trial court recognized that the guidelines’ range was unduly low because offense variable (ov) 13 was improperly scored as zero. Without changing the ov score, the trial court sentenced defendant at the low end of the calculated guidelines.

5 Defendant also submitted a number of affidavits and psychological evaluations dated after the initial sentencing. Most of this documentation contests the senior probation agent’s conclusion that defendant is a pedophile and reiterates that prison could be counterproductive for defendant. None of this information is based on facts not knowable before sentencing.

6 “An example of a modification provided by law is MCL 801.257; MSA 28.1747(7), authorizing trial courts to reduce a sentence by one-quarter for good conduct.” In re Jenkins, 438 Mich 364, 369, n 2; 475 NW2d 279 (1991).

7 In this respect, Michigan law parallels the federal rule disallowing resentencing based on a change of heart and permitting trial courts to resentence only in cases of “arithmetical or technical” error. See, e.g., United States v Abreau-Cabrera, 64 F3d 67, 69, 72 (CA 2, 1995); United States v Fraley, 988 F2d 4, 5 (CA 4, 1993); United States v Arjoon, 964 F2d 167, 170 (CA 2, 1992).

8 In Whalen, supra at 169-170, our Supreme Court cited the following examples of the kinds of clear error that make a sentence invalid and susceptible to trial court alteration:

Clearly a sentence beyond statutory limits is invalid. A sentence within statutory limits may also be invalid on a number of grounds. It is invalid if the sentencing court relies on constitutionally impermissible considerations, such as the defendant’s constitutionally infirm prior convictions, or improperly assumes a defendant’s guilt of a charge which has not yet come to trial, or the court fails to exercise its discretion because it is laboring under a misconception of the law, or conforms the sentence to a local sentencing policy rather than imposing an individualized sentence. More recently, this Court has held invalid sentences which do not comply with essential procedural requirements such as failure to utilize a “reasonably updated” presentence report or to provide the defendant and his counsel with the opportunity to address the court before sentence is imposed.

See also People v McKee, 167 Mich App 258, 262; 421 NW2d 655 (1988) (concurrent sentences imposed where sentences should be consecutive); People v Daniels, 69 Mich App 345, 350; 244 NW2d 472 (1976) (incorrect understanding of the applicable consecutive sentencing statute); People v Mauch, 23 Mich App 723, 730-731; 179 NW2d 184 (1970) (sentence based on erroneous perception of the habitual offender statute).

9 The sentencing report detailed defendant’s disability. Further, at sentencing, defendant’s mother argued that, because of defendant’s disability, his crime was more like adolescent sexual exploration than predatory adult pedophilia. Defendant’s mother also claimed that defendant’s fragility and need for close personal and professional attention makes him especially susceptible to internalizing the negative behavior he may experience in prison. Moreover, defense counsel referred to defendant’s low-average iq, repressed mental age, and the psychologists’ reports before the court evidencing the shared conclusion that incarceration would undo “all the good that the Wybreehts have done with Rob.” In short, the trial court was apprised of defendant’s condition before sentencing. The additional information simply added support to defendant’s arguments regarding defendant’s disability and the psychological damage that prison may cause him.