People v. Benson, Docket No. 136656

• Decision Date: 19 July 1993
• Docket Number: Docket No. 136656
• Citation: 504 N.W.2d 911,200 Mich.App. 598
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Jerome BENSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 911

504 N.W.2d 911

200 Mich.App. 598

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Jerome BENSON, Defendant-Appellant.

Docket No. 136656.

Court of Appeals of Michigan.

Submitted Jan. 12, 1993, at Detroit.

Decided July 19, 1993, at 9:10 a.m.

Released for Publication Sept. 23, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice

M. Joyce Bartee, Asst. Pros. Atty., for the People.

State Appellate Defender by Richard B. Ginsberg, for the defendant-appellant on appeal.

Before GRIFFIN, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Defendant was originally charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Following a jury trial, he was convicted of armed robbery and sentenced by the trial court to one hundred to two hundred years in prison. After this Court affirmed the conviction and sentence, 180 Mich.App. 433, 447 N.W.2d 755 (1989), the Supreme Court reversed in part the judgments of the trial court and the Court of Appeals and remanded for resentencing, 434 Mich. 903, 453 N.W.2d 681 (1990). On remand, the trial court sentenced defendant to a prison term of fifty to one hundred years. Thereafter, a successor trial judge denied a motion for rehearing. Defendant again appeals his sentence. We vacate the sentence and remand for resentencing.

I

In People v. Milbourn, 435 Mich. 630, 635-636, 461 N.W.2d 1 (1990), the Supreme Court set forth the principle of proportionality, requiring sentences imposed by trial courts to be proportionate to the seriousness of the circumstances surrounding the offense and the offender. The Court, pp. 653-654, 461 N.W.2d 1, stated:

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. [Emphasis in original.]

In determining whether a sentence is proportionate to the seriousness of the offense and the offender under the principle of proportionality, the Court in Milbourn, p. 656, 461 N.W.2d 1, recommended the use of the sentence guidelines:

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.

In reflecting actual sentencing practices, we note that the sentencing guidelines are nothing more than a description of what actually happens in seventy-five percent of the cases. As Mr. James McComb, a member of the Supreme Court guidelines staff, explained:

The first edition of the sentencing guidelines contains sentence recommendations that were based upon data collected during 1977 by the [Michigan Felony Sentencing Project]. To develop the sentence ranges found in the second edition, the variables as scored in the second edition were applied retrospectively, to the new data collected by the [Sentencing Guidelines Advisory Committee] from 1984 through 1987. In this way, it was possible to "fine-tune" the sentence recommendations so that they corresponded with actual sentencing practices.

Using data from over 50,000 actual cases the range of actual sentences, for each cell of each grid, was determined. Where possible, the ranges were set so that they encompassed at least 75% of the actual sentences and that departures above and below would be of a similar magnitude. No attempt was made to make the recommended sentences more lenient or severe. Instead, the recommended ranges represent the current practice of the majority of the Michigan Circuit and Recorder's Court judges. [McComb, An Overview of the Second Edition of the Michigan Sentencing Guidelines, 67 Mich B J 863, 866-867 (September, 1988).]

Thus, although the sentencing guidelines purport to give guidance to the trial courts on what an appropriate sentence ought to be, it is evident that the guidelines say nothing about the appropriateness of any given sentence, but merely reflect what judges have actually done in seventy-five percent of the cases. Within the guidelines' range, sentences are presumptively neither excessively severe nor unfairly disparate. People v. Broden, 428 Mich. 343, 354, 408 N.W.2d 789 (1987).

A sentencing court is entitled to depart from the guidelines' range whenever the recommended range is considered an inadequate reflection of the proportionate seriousness of the offense. People v. Witcher, 192 Mich.App. 307, 308-309, 480 N.W.2d 636 (1991). Where a sentencing court departs from the guidelines' range, it must articulate its reasons both on the record at sentencing and in the sentencing information report (SIR). People v. Fleming, 428 Mich. 408, 428, 410 N.W.2d 266 (1987). In Milbourn, 435 Mich. pp. 659-660, 461 N.W.2d 1, the Court noted:

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. 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.

In order to implement the Milbourn proportionality test, this Court set forth a three-part test in People v. Harris, 190 Mich.App. 652, 668-669, 476 N.W.2d 767 (1991):

1. If the sentence is to be within the guidelines, where on the guidelines range should the sentence fall?

2. What unique facts exist that are not already adequately reflected in the guidelines, and why do such facts justify any departure from the guidelines?

3. If there is to be a departure, what should be its magnitude and the justification for the specific departure imposed?

We should point out that Harris does not impose any new requirements other than those found in Milbourn, but merely provides a systematic method for arriving at a sentence in accordance with the Milbourn standards. As we said in Harris, p. 669, 476 N.W.2d 767.

The inquiry that we impose here will enable the trial judge to comply with the mandate of Milbourn in a manner that reduces the risk of irrational sentencing that is either too low or too high for the given case.

We do not hold that the [Harris analysis] must be followed to the letter in every case. However, all of the factors mentioned in the analysis are contained in Milbourn and must, in some manner, be included in the trial judge's articulation on the record of the reasons for the sentence.

II

In this case, the guidelines' range was calculated by the trial court to be ten to twenty-five years or life. The fifty-year minimum sentence imposed by the trial court was thus twice the maximum of the guidelines' minimum. In exceeding the guidelines' recommended range, the trial court stated on the record and in the SIR that the reasons for the upward departure were the "protection of society" and "punishment."

In our view, the trial court failed to adequately articulate reasons for its departure from the recommended guidelines' range. Milbourn, supra. It is evident that under the Milbourn/ Harris analysis, the trial court is required to make reasoned sentencing decisions. Here, the trial court's "reasons" for exceeding the guidelines are nothing more than boiler plate language that does not tell us anything about why this particular defendant is being sentenced to a prison term twice the maximum of the guidelines' minimum. Given that the guidelines are based upon what happens in seventy-five percent of the cases of armed robbery, the question is what is there about this case that makes it worse than seventy-five percent of the cases? Although the trial court cited defendant's lengthy criminal history, his lack of a consistent and reputable work history, his questionable drug use, and his disciplinary problems while in prison, it made no effort to tell us why this particular defendant has to receive a sentence greater than those received in seventy-five percent of the cases, and, specifically, why must it be an additional twenty-five years?

We do not wish to imply that the court must make a precise analysis of how this case compares to seventy-five percent of all similar cases. The seventy-five-percent figure is itself nothing more than a guideline. It tells the trial court that a sentence at the outer limits of the guidelines covers seventy-five percent of similar situations and that there may be a departure if the case at hand is substantially worse than the average case of a similar nature.

Moreover, we note that there is nothing in the trial court's remarks on the record or in the SIR to indicate that this case involves circumstances that are not adequately embodied within the variables used to score the guidelines. Milbourn, supra, 435 Mich. pp. 659-660, 461 N.W.2d 1. Thus, even if departure were appropriate in this case, there is nothing on the record to indicate why the extent of the departure should be so great. By taking refuge in the boiler plate language of "protection of society" and "punishment," the trial court failed to shed any light on these matters, abdicating its judicial function that requires it to engage in reasoned decision making.

The problem becomes particularly acute when we take into account that the guidelines as originally...