People v. Edgett

• Decision Date: 27 December 1996
• Docket Number: Docket No. 180885
• Citation: 560 N.W.2d 360,220 Mich.App. 686
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scottie Joe EDGETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 360

560 N.W.2d 360

220 Mich.App. 686

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Scottie Joe EDGETT, Defendant-Appellant.

Docket No. 180885.

Court of Appeals of Michigan.

Submitted Dec. 17, 1996, at Detroit.

Decided Dec. 27, 1996, at 9:30 a.m.

Released for Publication March 18, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis LaBelle, Prosecuting Attorney, and Robert A. Cooney, Assistant Prosecuting Attorney, for people.

Mark G. Kowalczyk, Mt. Pleasant for defendant-appellant on appeal.

Before TAYLOR, P.J. and GRIBBS and R.D. GOTHAM, ^* JJ.

TAYLOR, Presiding Judge.

Following a jury trial, defendant was convicted of carrying a concealed weapon (a double-edged dagger), M.C.L. § 750.227; M.S.A. § 28.424, and possessing a dangerous weapon (billy or bludgeon), M.C.L. § 750.224(1)(d); M.S.A. § 28.421(1)(d). Defendant subsequently pleaded guilty of being a third-offense habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083. Defendant was sentenced as an habitual offender to concurrent terms of 30 to 120 months in prison. Defendant appeals his sentences as of right. We affirm.

Defendant argues that his habitual offender sentences are disproportionate. The sentencing guidelines for the underlying offenses were zero to twelve months. As a third-time habitual offender, the court was authorized to double the authorized sentences for the crimes of which he was convicted. M.C.L. § 769.11; M.S.A. § 28.1083. Defendant notes that doubling the recommended guidelines' range produces an "enhanced guideline" range of zero to twenty-four months and argues that his thirty-month minimum sentences are disproportionate because they exceed those "enhanced guidelines." While acknowledging that the sentencing guidelines do not apply to habitual offender sentences, he argues that the trial court made the sentencing guidelines an issue in this case because it filled out a sentencing information report (SIR) departure form, explaining why it was departing from the sentencing guidelines, and did not list adequate reasons for departing from the guidelines.

A defendant who is found guilty by a jury, or in a bench trial, or who pleads guilty or nolo contendere, must thereafter be sentenced in accordance with the law by the court. Since March 1, 1984, the Michigan Supreme Court, through a series of administrative orders, and now MCR 6.425(D)(1), has required all circuit court and Recorder's Court judges to calculate a sentencing guidelines' range pursuant to the applicable Michigan Sentencing Guidelines for the minimum term of imprisonment for those offenses included in the guidelines. People v. Broden, 428 Mich. 343, 344-346, 408 N.W.2d 789 (1987). MCR 6.425(D)(1) states the court "must use the applicable sentencing guidelines when imposing a sentence for an offense that is included in the guidelines." While the sentencing court is not required to impose a minimum sentence within the guidelines' range, should the court impose a minimum sentence less than or greater than the guidelines' range, it must complete a section of the SIR labeled "departure reason." ¹ MCR 6.425(D)(1).

The reference to offenses "included in the guidelines" in MCR 6.425(D)(1) alerts the reader to the fact that certain offenses are not included in the guidelines. It is only those crimes listed on pages 11-22 of the Michigan Sentencing Guidelines (2d ed) that are presently covered by the guidelines. The crimes listed on these pages are all crimes that allow for indeterminate sentences, i.e., those sentences in which the trial court is authorized to impose a minimum sentence and a maximum sentence.

Indeed, the sentencing guidelines do not apply to a surprisingly large number of circumstances. ² They do not apply to offenses for which the Legislature has removed all discretion from the sentencing court, e.g., all offenses that require a nonparoleable term of life imprisonment, ³ and flat sentences such as those legislatively required for possession of a firearm during the commission of a felony, i.e., felony-firearm convictions (two years for a first offense, five years for a second offense, and ten years for a third or subsequent offense). M.C.L. § 750.227b; M.S.A. § 28.424(2). There are also no sentencing guidelines for felony driving offenses, such as operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. § 257.625(7)(d); M.S.A. § 9.2325(7)(d), or for adultery, ⁴ M.C.L. § 750.30; M.S.A. § 28.219; escape from prison, M.C.L. § 750.193; M.S.A. § 28.390; and perjury, M.C.L. § 750.422; M.S.A. § 28.664, as well as many offenses created by the Legislature since October 1, 1988 (when the second edition of the sentencing guidelines became effective), including first-degree retail fraud, M.C.L. § 750.356c; M.S.A. § 28.588(3); child abuse, M.C.L. § 750.136b; M.S.A. § 28.331(2); carjacking, M.C.L. § 750.529a; M.S.A. § 28.797a; aggravated stalking, M.C.L. § 750.411i; M.S.A. § 28.643(9); and home invasion, M.C.L. § 750.110a; M.S.A. § 28.305(a). In addition, the sentencing guidelines do not apply to certain drug offenses where the Legislature requires a certain minimum sentence from which departures may be made only for substantial and compelling reasons. See People v. Perry, 216 Mich.App. 277, 549 N.W.2d 42 (1996). Further, they do not apply to probation violation sentences, although the guidelines will have been calculated for crimes that are covered by the guidelines at the earlier sentencing when the defendant was given a probationary sentence. See People v. Cotton, 209 Mich.App. 82, 83-84, 530 N.W.2d 495 (1995). Also, the sentencing guidelines do not apply to defendants whose sentences are enhanced under the subsequent offender provisions of the controlled substances act. People v. White, 208 Mich.App. 126, 135, 527 N.W.2d 34 (1994). Finally, and most applicable to the case at bar, the sentencing guidelines do not apply to habitual offender sentences. When sentencing an habitual offender, the trial court is required to complete the SIR (which requires calculation of the sentencing guidelines) for the underlying offense if the offense is included in the guidelines. Michigan Sentencing Guidelines (2d ed), p 1; People v. Zinn, 217 Mich.App. 340, 350, 551 N.W.2d 704 (1996). But the trial court is not required to fill out the SIR departure reason form when it sentences an habitual offender to a term of imprisonment in excess of the range indicated by the sentencing guidelines for the underlying offense. We note in this regard that the sentencing guidelines explicitly state that the guidelines do not apply to habitual offender sentences. Michigan Sentencing Guidelines (2d ed), pp 1, 6.

Nevertheless, as the jurisprudence surrounding the review of habitual offender sentences developed, this Court has looked to the guidelines' range for the underlying offense in reviewing claims that habitual offender sentences were disproportionate. See, e.g., People v. Finstrom, 186 Mich.App. 342, 345-346, 463 N.W.2d 272 (1990) (habitual offender sentence that exceeded guidelines for underlying offense by more than a factor of three was found disproportionate). That the authority to so evaluate habitual offender sentences was dubious can be seen in People v. Williams, 191 Mich.App. 685, 686-687, 479 N.W.2d 36 (1991), People v. Oelberg, 197 Mich.App. 346, 347, 494 N.W.2d 869 (1992), People v. Cutchall, 200 Mich.App. 396, 409-410, 504 N.W.2d 666 (1993), People v. Derbeck, 202 Mich.App. 443, 448, 509 N.W.2d 534 (1993), and People v. Spivey, 202 Mich.App. 719, 728, 509 N.W.2d 908 (1993), where this Court acknowledged the fact that the guidelines do not apply to habitual offender sentences, but went on to state that the proportionality of an habitual offender sentence could be measured by comparing the guidelines' recommended range with the degree of sentence enhancement authorized by the particular habitual offender statute, thereby applying the guidelines by analogy. ⁵ This led to the practice of calculating an "enhanced" guideline range that was then compared to the actual sentence that was imposed.

Other panels of this Court described the guidelines for the underlying offense as being helpful in reviewing the proportionality of habitual offender sentences. See, e.g., People v. Malkowski, 198 Mich.App. 610, 615, 499 N.W.2d 450 (1993) (useful reference point), People v. Odendahl, 200 Mich.App. 539, 540, 505 N.W.2d 16 (1993) (useful reference point), People v. Williams, 205 Mich.App. 229, 234, 517 N.W.2d 315 (1994) (the starting point for our review), People v. Bordeau, 206 Mich.App. 89, 94, 520 N.W.2d 374 (1994) (a tool to assist), People v. Martin, 209 Mich.App. 362, 364, 531 N.W.2d 755 (1995) (useful starting point or barometer), People v. Martinez (After Remand), 210 Mich.App. 199, 201, 532 N.W.2d 863 (1995) (helpful tool to be considered), and People v. Chandler, 211 Mich.App. 604, 615, 536 N.W.2d 799 (1995) (useful starting point).

This judicially created construct of utilizing the guidelines or the "enhanced guidelines" in reviewing the proportionality of habitual offender sentences was first questioned by the three justices who signed the lead opinion in People v. Cervantes, 448 Mich. 620, 625-626, 532 N.W.2d 831 (1995), where the Court stated:

There was no consideration of habitual offender sentencing in the creation of the existing sentencing guidelines; therefore, it would be both misleading and statistically invalid to attempt in any way to apply the existing guidelines to the sentencing of habitual offenders.

There was some misunderstanding of the import of the Cervantes holding by this Court in People v. Gatewood, 214 Mich.App. 211, 542 N.W.2d 605 (1995), which held that the lack of a Supreme Court majority opinion in Cervantes did not operate so as to overrule our past jurisprudence regarding guideline usage. The Supreme Court removed all doubt in People v. Gatewood, 450 Mich....