People v. Carson

• Citation: 560 N.W.2d 657,220 Mich.App. 662
• Decision Date: 27 December 1996
• Docket Number: Docket No. 159501
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen CARSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 657

560 N.W.2d 657

220 Mich.App. 662

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen CARSON, Defendant-Appellant.

Docket No. 159501.

Court of Appeals of Michigan.

Submitted Dec. 12, 1995, at Lansing.

Decided Dec. 27, 1996, at 9:20 a.m.

Released for Publication March 18, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Charles D. Sherman, Prosecuting Attorney, for People.

State Appellate Defender by Amy Neville, for defendant-appellant on appeal.

Before HOOD, P.J., and GRIBBS, McDONALD, GRIFFIN, REILLY, FITZGERALD and SMOLENSKI, JJ.

SMOLENSKI, Judge.

This panel was convened pursuant to Administrative Order No. 1996-4 to resolve a conflict between the opinion previously issued in this case ¹ and the opinion in People v. Lino (After Remand), 213 Mich.App. 89, 539 N.W.2d 545 (1995).

Defendant was convicted by a jury of assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284, and assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. Defendant thereafter pleaded guilty of being a second-offense habitual offender, M.C.L. § 769.10; M.S.A. § 28.1082. Defendant was sentenced as an habitual offender for the respective underlying convictions to concurrent terms of parolable life imprisonment and ten to fifteen years' imprisonment.

Defendant appealed, raising several issues concerning his convictions and sentence of parolable life imprisonment. In particular, defendant argued before the initial panel in this case that his sentence of parolable life imprisonment was disproportionate. To support his argument that a sentence of parolable life "is just that, life," defendant cited statistics indicating that few prisoners sentenced to parolable life are actually paroled. Defendant contended that a sentence of parolable life was thus "designed to punish the worst offender for the worst offense" where it was "clearly the longest possible sentence" that could be imposed for the assault with intent to rob conviction. Defendant argued that his sentence of parolable life was, accordingly, disproportionate because he was not the most serious offender, nor was his offense the most serious offense.

The initial panel in this case concluded that defendant's sentence of parolable life imprisonment was proportionate. ² In so concluding, the initial panel followed the statement by our Supreme Court in People v. Merriweather, 447 Mich. 799, 809, 527 N.W.2d 460 (1994), ³ that the defendant in that case might have been better off with a sentence of parolable life, which would have brought the defendant under the jurisdiction of the Parole Board after serving ten years pursuant to the lifer law, ⁴ rather than the sentence of 60 to 120 years' imprisonment that had been imposed, which effectively denied the defendant parole eligibility because he would have to serve the minimum term less disciplinary credits before becoming eligible for parole pursuant to the legislation ⁵ implementing Proposal B. ⁶ However, the initial panel in this case was constrained under Administrative Order 1994-4 to follow Lino, supra, and People v. Love (After Remand), 214 Mich.App. 296, 542 N.W.2d 374 (1995). ⁷ In Lino, supra at 98, 539 N.W.2d 545, this Court held that a sentence of parolable life is greater punishment than a sentence of a lengthy term of years. In so holding, the panel in Lino, supra at 96, 539 N.W.2d 545, quoted the following statement by our Supreme Court in People v. Timothy Moore, 432 Mich. 311, 317, 439 N.W.2d 684 (1989): " 'On its face, the stated penalty for second-degree murder ("life, or any term of years") indicates that a term of years is a lesser penalty than life.' " The panel in Lino, supra at 97-98, 539 N.W.2d 545, also cited statistical analyses indicating that prisoners serving parolable life are, in reality, rarely paroled. In Love, supra at 302, 542 N.W.2d 374, this Court relied on Lino to hold that the defendant's sentences of sixty to ninety years' imprisonment were less severe punishments than parolable life imprisonment. The initial panel in this case thus held that defendant's sentence of parolable life was disproportionate where, under Lino and Love, it was required to consider a sentence of parolable life as even more severe than a sentence of sixty to ninety years' imprisonment. ⁸

Thus, the issue we are asked to resolve is whether a sentence of parolable life imprisonment is a greater punishment than an indeterminate sentence of a long term of years. We first note that in his supplemental brief to this panel, defendant's proportionality argument has taken on a somewhat different twist than his argument to the initial panel. Defendant reiterates his position that life means life. In support of his position, defendant cites the legal hurdles contained in the lifer law that a prisoner who has served ten years of a sentence of parolable life faces before the prisoner may be released on parole, including a Parole Board interview, a public hearing, and the lack of an objection to parole by the sentencing judge or the judge's successor. ⁹ Defendant also cites statistics indicating that prisoners sentenced to parolable life are, in reality, rarely paroled. In a section of his brief titled "Comparing Apples to Oranges," defendant then compares a sentence of parolable life and its attendant parole considerations to a long indeterminate sentence and its attendant parole considerations, noting: (1) that a prisoner sentenced to a term of years for an offense subject to Proposal B must serve the minimum term of the sentence less disciplinary credits before becoming eligible for parole; ¹⁰ (2) that an habitual offender sentenced to a term of years must serve the minimum term of the sentence without entitlement to disciplinary credits before becoming eligible for parole; ¹¹ and (3) that no judicial veto to parole exists in the case of a prisoner sentenced to a term of years. ¹² Defendant ultimately concludes that "it cannot logically be disputed that where a 40 to 60 year sentence is proportionate a life sentence would also be proportionate." Defendant thus contends to this panel that his sentence of parolable life is disproportionate because it is "one of the longest possible sentences which could be imposed for this offense" (emphasis supplied).

We begin our analysis by ascertaining, apart from Lino, the present state of the law concerning the question whether parolable life constitutes a greater punishment than a term of years. As more than adequately discussed in both Lino and the prior opinion in this case, this Court has previously reached conflicting results concerning whether a sentence of parolable life is a more severe punishment than a sentence of a term of years. ¹³ We decline to again review these opinions, but instead refer those interested to Lino and the previous opinion in this case. Suffice it to say that some panels have held that, as a matter of law, a sentence of parolable life is a greater punishment than a sentence of a term of years. See People v. Oscar Moore, 164 Mich.App. 378, 390, 417 N.W.2d 508 (1987), modified 433 Mich. 851, 442 N.W.2d 638 (1989); People v. McNeal, 156 Mich.App. 379, 381, 401 N.W.2d 650 (1986); People v. Lindsey, 139 Mich.App. 412, 415, 362 N.W.2d 304 (1984). Conversely, in People v. Hurst (After Remand), 169 Mich.App. 160, 168, 425 N.W.2d 752 (1988), this Court concluded that a sentence of parolable life was a "better alternative" than a sentence of forty to eighty years' imprisonment in light of the interplay between the lifer law and Proposal B.

In Timothy Moore, supra at 329, 439 N.W.2d 684 our Supreme Court held:

For the reasons stated earlier in this opinion, we hold that a "term of years" must be an indeterminate sentence less than life. It must be something that is reasonably possible for a defendant actually to serve.

The starting point for the Court's analysis was the following statement: "On its face, the stated penalty for second-degree murder ('life, or any term of years') indicates that a term of years is a lesser penalty than life." Id. at 317, 439 N.W.2d 684. The Court concluded that "[t]hus there are two types of sentences that a judge may impose upon a person convicted of second-degree murder--a sentence of life in prison, or a sentence of a term of years less than life." Id. at 319, 439 N.W.2d 684. The basis for the Supreme Court's statement and conclusion in Timothy Moore was contained in its quotation of this Court's opinion in Oscar Moore:

"In [People v. Johnson, 421 Mich. 494, 497-498, 364 N.W.2d 654 (1984) ], the Supreme Court wrote:

" 'The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v. Vitali, 156 Mich 370; 120 NW 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.'

" 'Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years" it allows the imposition of a fixed sentence--life--or an indeterminate sentence--any number of years. We observed in People v. Blythe, 417 Mich 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase "life or any term of years" as descriptive of the maximum sentence only. The sentence concepts "life" and "any term of years" are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.'

"If 'life' and 'any term of years' are mutually exclusive concepts, the Court's statement that the latter allows imposition of 'any number of years' must mean 'any number of years less than life.' " [Timothy Moore, supra at 318, 439 N.W.2d 684, quoting Oscar Moore, supra at 390, 417 N.W.2d 508 (emphasis in original).]

The Supreme Court explicitly distinguished this Court's opinion in Hurst as follows:

In [Hurst, supra ], the Court of Appeals concluded that,...