People v. Hurst

• Decision Date: 20 February 1987
• Docket Number: Docket No. 84939
• Citation: 155 Mich.App. 573,400 N.W.2d 685
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Anthony HURST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 685

400 N.W.2d 685

155 Mich.App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Anthony HURST, Defendant-Appellant.

Docket No. 84939.

Court of Appeals of Michigan.

Submitted April 16, 1986.

Decided Oct. 21, 1986.

Released For Publication Feb. 20, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Denise Green, Asst. Pros. Atty., for the People.

Gerald S. Surowiec, Farmington Hills, for defendant-appellant.

Before KELLY, P.J., and SHEPHERD and SIMON, ^* JJ.

KELLY, Presiding Judge.

Following a bench trial, defendant was convicted of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e). He was sentenced to two concurrent prison terms of from forty to eighty years and now appeals from both his convictions and sentences as of right. We affirm his convictions but remand for further sentencing proceedings consistent with this opinion.

Defendant was charged with the commission of criminal sexual conduct involving penetration and the use of a weapon:

"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

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"(e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon." M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e).

Defendant first argues that there was insufficient evidence to show that he was armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe there was a weapon. We disagree.

Complainant admitted that she never actually saw a gun. However, she believed her assailant had a gun because he shoved what "felt like a heavy metal-like object" into her side and asked her if she wanted to die. After the defendant was arrested, the police recovered a yellow-handled ratchet adapter near a pile of defendant's clothes in the area of the house where the assault took place. Based on the complainant's testimony, we believe that a rational trier of fact could conclude that the complainant reasonably believed that defendant was armed with a weapon when he forced her to submit to sexual penetration. See People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), reh. den. 407 Mich. 1164 (1980), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980), and People v. Petrella, 424 Mich. 221, 380 N.W.2d 11 (1985). Defendant's convictions are therefore affirmed.

Defendant also argues that the trial court abused its sentencing discretion in departing from the ten-to-twenty-year minimum sentence range recommended under the sentencing guidelines. We are not persuaded that a minimum sentence which is twice the highest guidelines' recommended minimum sentence automatically constitutes an abuse of sentencing discretion. However, this case points out some of the problems that appellate judges face in fathoming the consequences of the sentences they are reviewing and we are thus reluctant to simply affirm the sentences here imposed. Uniformity is not the goal of sentence review but we must ask ourselves if all levels of disparity are acceptable.

Defendant was convicted of offenses which carry maximum sentences of life imprisonment. In People v. Crawford, 144 Mich.App. 86, 372 N.W.2d 688 (1985), defendant was convicted of the same offense and sentenced to a term of imprisonment of from 80 to 120 years. In upholding that sentence as not excessive, the panel in Crawford commented upon life and indeterminate sentences in the context of sentence review:

"From a defendant's standpoint in viewing length of time to be served, there is no sentence more severe than a life sentence. A sentence of 80 to 120 years is almost certain to be longer than a defendant's life. Consequently, the purpose of a 80- to 120-year sentence seemingly has to be to recognize the heinous nature of defendant's crime and to tell the public that such conduct will not be tolerated." 144 Mich.App. 89-90, 372 N.W.2d 688.

We agree that in some cases a life term will prove a harsher sentence than a term of years. The drop-off is far from clear; what is apparent may not prove true. Although we do not wish to take a stand on whether People v. Crawford was correctly decided, we suggest that from the perspective of James Crawford and contrary to the view expressed by this Court, a life sentence in that case would have been much less severe than the sentence imposed.

Michigan's "lifer law" allows any prison inmate under a sentence of life or for a term of years, other than those who have been convicted of first-degree murder or of a major controlled substance offense, to be considered for parole after serving ten calendar years of his or her sentence. M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). In 1978, the electorate approved "Proposal B," now codified at M.C.L. Sec. 791.233b; M.S.A. Sec. 28.2303(3), which modified the lifer law. Inmates serving indeterminate sentences for any one of more than eighty crimes enumerated in the statute are no longer eligible for parole until the minimum term is served less any time earned in disciplinary credits under M.C.L. Sec. 800.33; M.S.A. Sec. 28.1403. ¹ In People v. Johnson, 421 Mich. 494, 364 N.W.2d 654 (1984), the Supreme Court expressly ruled that Proposal B does not apply to life sentences. Thus, if inmates James Crawford and Charles Hurst had received life sentences, they would each have been eligible for parole consideration after serving only the first ten years of their sentences. Under the sentences actually imposed, Crawford abides eighty years and Hurst forty years, minus whatever time they earn in disciplinary credits, before their names appear on a list of candidates for parole consideration.

To repeat, the actual minimum term which must be served under Proposal B may now be reduced by time earned in disciplinary credits. The amount by which a sentence may be reduced under M.C.L. Sec. 800.33; M.S.A. Sec. 28.1403 can be significant ², further complicating the attempt to precisely calculate the sentences we are reviewing. Moreover, Proposal B inmates may also benefit from early releases under the Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.; MSA 28.1437(1) et seq., although we have expressly held that sentencing courts may not consider this possibility as a factor in determining individual sentences. See People v. Humble, 146 Mich.App. 198, 379 N.W.2d 422 (1985); People v. Lundy, 145 Mich.App. 847, 378 N.W.2d 622 (1985), and People v. Fleming, 142 Mich.App. 119, 125, 369 N.W.2d 499 (1985).

Remarking on this confusion and uncertainty is an article published in the Detroit Free Press on June 23, 1985, section B, page 5, which suggests that statutes and case law are not strictly adhered to by the Department of Corrections which follows a different star. Apparently, an inmate, who has been convicted of Proposal B offenses and sentenced to a minimum and maximum term of years, is nevertheless considered by the Department of Corrections for parole after serving only ten years of the actual minimum sentence, unless that inmate has been convicted of first-degree murder or a major controlled substance offense. This, if true, conflicts with the codification of Proposal B and the Supreme Court's opinion in People v. Johnson, supra.

Against this backdrop, we find ourselves having to decide whether Hurst's sentence of from forty to eighty years are excessive. If defendant's forty-year minimum sentences mean that he will perforce spend the next forty years of his life behind bars, then our consciences are shocked. If a long termer must serve forty or eighty calendar years while his lifer counterpart, eligible for parole consideration in ten years, serves considerably less, then what is endangered is the entire predicate for the sentencing guidelines' endeavor to narrow the disparity among sentences.

We are indecisive about whether to affirm defendant's sentence because of the uncertainty about what they precisely entail. We agree, however, with the observation made in People v. Fleming, supra, p. 126, 369 N.W.2d 499, that the courts of this state "should be mindful of the ultimate effect" of any sentence fashioned and, we would add, reviewed. For the lack of an alternative remedy, we vacate defendant's sentences and remand this case to the trial court for an evidentiary hearing and resentencing. At the hearing on remand, the...