People v. Fisher

• Court: Court of Appeal of Michigan
• Writing for the Court: MICHAEL J. KELLY
• Citation: People v. Fisher, 439 N.W.2d 343, 176 Mich.App. 316 (Mich. App. 1989)
• Decision Date: 18 May 1989
• Docket Number: Docket No. 111583
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Erick FISHER, Defendant-Appellant (After Remand).

Page 343

439 N.W.2d 343

176 Mich.App. 316

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Erick FISHER, Defendant-Appellant (After Remand).

Docket No. 111583.

Court of Appeals of Michigan.

Submitted Jan. 10, 1989.

Decided April 3, 1989.

Released for Publication May 18, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for the People.

Donald L. Correll, Lansing, for defendant-appellant on appeal.

Before MICHAEL J. KELLY, P.J., and DOCTOROFF and CYNAR, JJ.

MICHAEL J. KELLY, Presiding Judge.

This case was previously remanded for a resentencing. People v. Fisher, 166 Mich.App. 699, 715, 420 N.W.2d 858 (1988). At the original sentencing, the circuit court sentenced defendant to forty to sixty years in prison, far beyond sentencing guidelines which recommended a minimum sentence range of seven to sixteen years. We remanded the case for resentencing to require the sentencing judge to state on the record his specific explanations for this considerable departure. On remand, the circuit judge again sentenced defendant to forty to sixty years in prison. Defendant has moved this Court for peremptory reversal of his sentence. He also asks that we remand this case for resentencing before a different judge. We hereby grant defendant's motion. We set aside his sentence and again remand defendant's case for resentencing, this time before a different circuit judge.

On remand, the sentencing judge merely reread part of the original sentencing transcript and "reaffirmed" defendant's original sentence of forty to sixty years. Our review of the transcript indicates that the sentencing court adopted the prosecutor's recommended sentence of forty to sixty years. The court recited the following justification for the severe sentence:

"The note I made to myself before coming to court was that the defendant should either be sentenced for life or for a period of years whereby he would be incarcerated beyond the age of violence. That age normally that we look to where we find extremely seldom violent acts of this kind would be about 60 years of age, or somewhere in that range.

"The defendant is 27 years old. In order for society to have some degree of assurance that the defendant would not do a like act under like circumstances, the defendant would have to be put in for a minimum of 33 years. That would get him to age 60. Forty years would get him to age 67."

This...