People v. Carson

• Decision Date: 04 June 1996
• Docket Number: Docket No. 159501
• Citation: 217 Mich.App. 801,553 N.W.2d 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen CARSON, Defendant-Appellant. . Released
• Court: Court of Appeal of Michigan — District of US

Page 1

553 N.W.2d 1

217 Mich.App. 801

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

Docket No. 159501.

Court of Appeals of Michigan.

Released June 4, 1996 at 9:20 a.m.

Decided June 14, 1996.

Released for Publication Sept. 13, 1996.

Before JANSEN, P.J., and TAYLOR and J.P. NOECKER, ^* JJ.

TAYLOR, Judge.

Defendant appeals as of right his jury trial convictions of assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284, and assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. Defendant subsequently pleaded guilty of being an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. Defendant was sentenced to parolable life in prison for the conviction of assault with intent to rob, and ten to fifteen years for the conviction of assault with intent to commit great bodily harm. We affirm defendant's convictions and sentence for the convictions of assault with intent to commit great bodily harm less than murder and remand for resentencing for the conviction of assault with intent to rob while armed.

At about 12:30 a.m. on February 24, 1992, defendant approached the victim in a parking lot. After asking for directions, defendant put a knife to the victim's throat and demanded money. Defendant backed the victim up against a truck and began trying to undo her pants. The victim pushed defendant back. Defendant lost his footing and punched the victim in the face. The victim fell down and was crouching when defendant stabbed her in the back and ran away. The victim recovered after spending four days in the hospital. Defendant raises several claims of error. We will first discuss the claim that requires resentencing and then dispose of the remaining issues.

Defendant argues that his parolable life sentence for the conviction of assault with intent to rob while armed is disproportionate. ¹ He notes that the recommended sentence under the sentencing guidelines for this offense is eight to twenty years, and states that his parolable life sentence is far beyond the recommended minimum guidelines' range. Defendant argues that although he will become subject to the jurisdiction of the parole board after ten years, ² the reality is that most prisoners sentenced to parolable life are never released from prison.

This Court has issued conflicting opinions in reviewing parolable life sentences. In People v. Lindsey, 139 Mich.App. 412, 362 N.W.2d 304 (1984), and People v. McNeal, 156 Mich.App. 379, 401 N.W.2d 650 (1986), panels of this Court held that sentences of thirty to sixty and thirty-five to seventy years were lesser sentences than parolable life sentences even though a parolable life sentence would permit earlier consideration for parole. In People v. Hurst (After Remand), 169 Mich.App. 160, 425 N.W.2d 752 (1988), another panel of this Court concluded that a forty- to eighty-year sentence was more severe than a parolable life sentence because a defendant serving a parolable life sentence was eligible for parole after ten years. In People v. Houghteling, 183 Mich.App. 805, 811, 455 N.W.2d 440 (1990), a panel of this Court reviewed a parolable life sentence where the sentencing guidelines' range had been twelve to fifteen years. The Court stated that a parolable life sentence did not shock the Court's conscience, noting that the defendant would be eligible for parole after ten years. The Court then stated that the parolable life sentence "may actually be quite lenient." Id. at 811, 455 N.W.2d 440. In People v. Gilbert, 183 Mich.App. 741, 750-751, 455 N.W.2d 731 (1990), this Court reviewed a parolable life sentence where the sentencing guidelines' range was ten to twenty years. The Court noted that the defendant would be eligible for parole after serving ten years and concluded that, compared to the guidelines' range, a parolable life sentence was not disproportionate or excessive.

However, the analysis used by the Houghteling and Gilbert Courts was rejected in People v. Shell, 200 Mich.App. 160, 161, 503 N.W.2d 711 (1993), where the Court stated that a parolable life sentence is not to be considered within the guidelines merely because the time at which the defendant becomes eligible for parole coincides with a point within the guidelines. Also, in People v. Biggs, 202 Mich.App. 450, 456, 509 N.W.2d 803 (1993), a panel of this Court accepted a prosecutor's concession that the trial court had erred in imposing a parolable life sentence under the mistaken impression that such a life sentence would make the defendant eligible for parole sooner than a long term of years. This statement in Biggs is directly contradicted by People v. Legree, 177 Mich.App. 134, 141-142, 441 N.W.2d 433 (1989), which stated that a defendant receiving a parolable life sentence is eligible for parole "well before" a defendant who is sentenced to a long-term indeterminate sentence. However, the Biggs Court may have been considering the fact that a defendant with a parolable life sentence may not be paroled if his sentencing judge or a successor judge opposes parole and the fact that there is a great difference between a defendant's coming under the jurisdiction of the parole board and receiving parole. M.C.L. § 791.234(6)(b); M.S.A. § 28.2304(6)(b); Hurst, supra.

Additional contradictory opinions were issued in 1994-95. In People v. Phillips (On Rehearing), 203 Mich.App. 287, 291, 512 N.W.2d 62 (1994), a panel of this Court found that a minimum sentence of sixty-five years was an abuse of discretion, but added that if the sentence had been parolable life, it would have affirmed. This approach appeared to be vindicated when the Supreme Court decided People v. Merriweather, 447 Mich. 799, 809, 527 N.W.2d 460 (1994), and said that the defendant might have been better off with a parolable life sentence than the 60- to 120-year sentence that had been imposed. Id. This was apparently not understood by our Court to be dispositive, however, and in People v. Lino (After Remand), 213 Mich.App. 89, 539 N.W.2d 545 (1995), this Court held that a long-term indeterminate sentence, such as a forty- to sixty-year prison term, is less severe punishment than a parolable life term because, under parole board practices from the late 1980s through the early 1990s, very few defendants sentenced to parolable life were paroled. In People v. Love (After Remand), 214 Mich.App. 296, 302, 542 N.W.2d 374 (1995), the Court, without expanding on the Lino rationale, or distinguishing the cited comment from Merriweather for that matter, held that a sixty- to ninety-year prison sentence is also less severe punishment than a parolable life sentence. Under Administrative Order No. 1994-4, these holdings of Lino and Love bind this panel. ³

As a result, we are required to conclude, as this defendant urges, that in his current situation, where he will be eligible for parole in ten years, he is invariably less advantaged than he would be if, upon success in this Court, he were resentenced, as he well might be given the circumstances of his crime, to a long-term indeterminate sentence. It seems somewhat puzzling to us that he would perceive his self-interest to be advanced by this outcome because parolable life gives him his first opportunity for parole in ten years, but, after resentencing, it may be many decades before his first appearance before a parole board. Perhaps he is confident that any new sentence will not be lengthy, or maybe he just believes, even if the sentence is lengthy, he is somehow better off. In any case, we can conclude he has decided to move in this direction for reasons of his own, which we may question but not challenge. Nevertheless, that concession having been made, we cannot help but ask ourselves whether similarly situated inmates, bound by the law ofLino and Love, would also see a potential long-term indeterminate sentence as an advantage over parolable life. Such inmates might, if they planned to be model prisoners and took a long view of the probabilities of parole, feel distinctly disadvantaged by the conclusion that the Lino holding compels. They might, to put it plainly, prefer a situation where there is a shot at parole to one where there is likely no shot at parole. Because the Lino holding is, in its most extreme manifestation to date (such as in Love ), so counterintuitive, it begs the question of how the law got into this unusual posture. We believe that at its root the problem can be traced to improper utilization of statistical data from the past to predict actions in the future.

In Lino, this Court, harkening to the dissent in Merriweather and, using some recent parole board statistics, held as a matter of law that few of the parolable life inmates eligible for parole in the future will get it, ⁴ and thus, that parolable life is a more severe penalty than a long-term indeterminate sentence. ⁵ We believe this position is flawed because the statistics used in Lino are only reflective of the variables controlling the granting of parole for the period studied. These variables will always include the behavior of the inmates being considered, as well as the parole board's disposition toward granting parole to lifers, which will invariably mirror, to some extent, the policy of the then-sitting governor, the temper of the Legislature, public opinion concerning crime, and many other factors of that sort. These conditions quite obviously change from time to time and, thus, so will the number of paroles granted. Indeed, one only need look at the statistics not considered by the Lino Court to understand this. The same sources used by the Lino panel show that thirty paroles were granted from 1979 to 1981. Further, the Lino panel was also apparently unaware that twelve lifers were paroled in the first nine months of 1994. Cf. 74 Mich B J 247 (1995). Accordingly, if the Lino method of analysis were correct, it would have...