People v. Legree

• Decision Date: 26 June 1989
• Docket Number: Docket No. 105253
• Citation: 177 Mich.App. 134,441 N.W.2d 433
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Allen LEGREE, Defendant-Appellant. 177 Mich.App. 134, 441 N.W.2d 433
• Court: Court of Appeal of Michigan — District of US

Page 433

441 N.W.2d 433

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Allen LEGREE, Defendant-Appellant.

Docket No. 105253.

177 Mich.App. 134, 441 N.W.2d 433

Court of Appeals of Michigan.

Submitted Sept. 13, 1988.

Decided May 15, 1989.

Released for Publication June 26, 1989.

[177 MICHAPP 135] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the people.

Allsopp, Fitzgerald & Kolka, P.C. by Arthur M. Fitzgerald, Bay City, for defendant-appellant on appeal.

Before HOLBROOK P.J., and SAWYER and MURPHY, JJ.

MURPHY, Judge.

Defendant appeals as of right following his plea-based convictions for second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). Defendant was sentenced to concurrent terms of 150 to 500 years in prison. We vacate defendant's sentences and remand for resentencing.

The facts giving rise to defendant's convictions almost defy description. The crimes of the nineteen-year-old defendant, which resulted in the murder of a defenseless elderly woman in her home, were violent, brutal, and senseless.

The record reveals that on the afternoon of March 4, 1987, defendant had been drinking at his brother's house in Bay The presentence investigation report revealed that defendant's only previous contact with the law was for a few minor traffic violations. The sentencing guidelines recommended a sentence of ten years to life. At sentencing, the court first ruled out any possibility that defendant could be rehabilitated. In addition, the court stated that there was nothing it could do at sentencing which would deter anyone from committing a crime like the one committed by defendant. Instead, the sentencing judge imposed the 150- to 500-year sentence solely to protect society. The court stated:

County. After consuming a considerable amount of alcohol, defendant borrowed[177 MICHAPP 136] a shotgun from his brother and went outside to shoot at pigeons. While walking in the neighborhood, defendant came upon the victim's house. He observed a car in the garage and decided to enter the house to secure the keys so he could drive to Detroit to visit his wife, from whom he was separated. After breaking into the house, defendant encountered an eighty-year-old woman sitting on her couch. Defendant threatened her with the shotgun and forced her to an upstairs bedroom where he proceeded to rape her. Then defendant shot her in the head, killing her instantly. Defendant then took some money from the victim's purse and drove her car to Detroit. When defendant returned the next day, he was arrested. The prosecution, after issuing a four-count information which included a first-degree murder count, allowed defendant to plead guilty to second-degree murder and first-degree criminal sexual conduct.

Society absolutely cries out in anguish for protection from Mr. Legree and some people, I'm sure, who would in other times and in other settings say capital punishment is not for me; I don't want anything to do with it, would say in--in a case like this, if they were personally exposed to it, I will [177 MICHAPP 137] opt for that degree of protection so profound is the need to feel safe.

It is also clear that the court wanted to ensure that defendant would never have the opportunity to be paroled under Michigan's "lifer law," M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). To that end, the court imposed a sentence which, even assuming that defendant was a model prisoner, would mean that defendant would be approximately 140 years old before he would be eligible for parole. ¹ There is no question that this sentence, in effect, is one for life in prison, without the possibility of parole.

Defendant now appeals claiming that he should be resentenced because the 150- to 500-year sentences imposed by the trial court are invalid. We agree.

Initially, we note that the resolution of the sentencing issues raised in this case confronts us with a most difficult task. Various panels of this Court have grappled with similar long-term indeterminate sentences in an attempt to determine the bounds of a circuit court's power to sentence a defendant to "any term of years." ² What remains [177 MICHAPP 138] clear, however, is that there is no consensus, and until either our Supreme Court or the Legislature readdresses these sentencing issues, this Court and the circuit courts of this state will continue There is no question that the crimes committed by defendant in this case defy reason and defendant's brutal and senseless acts require that defendant be punished severely. Moreover, we have thoroughly reviewed the lower court record, paying particular attention to the sentencing record and transcript, and we are fully aware of the far-reaching impact and devastating effects this brutal murder has had not only upon the victim's family, but the community at large. Nonetheless, we are constrained by the facts of this case to the review of defendant's 1 1/2- to 5-century sentences for committing two life-sentence crimes, first-degree criminal sexual conduct and second-degree murder. ³

to disagree on what constitutes an appropriate indeterminate sentence.

The sentencing scheme established by the Legislature in this state provides for individualized sentencing. In explaining the policy for individualized sentencing, our Supreme Court has stated:

The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the [177 MICHAPP 139] present policy of the state. A judge needs complete information to set a proper individualized sentence. [People v. McFarlin, 389 Mich. 557, 574, 208 N.W.2d 504 (1973).]

Moreover, appropriate basic considerations used in determining an appropriate sentence include: (a) the reformation of the offender, (b) the protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses. See People v. Snow, 386 Mich. 586, 592, 194 N.W.2d 314 (1972); People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983); People v. Broden, 428 Mich. 343, 350, 408 N.W.2d 789 (1987).

The Legislature has the power, with certain recognized exceptions, to establish appropriate penalties for criminal violations to be enforced by the courts. Since the 1902 amendment of the 1850 Michigan Constitution, the people of this state have provided the Legislature with the power to establish indeterminate sentences, and the constitutionality of indeterminate sentencing legislation has been upheld by our courts. See In re Manaca, 146 Mich. 697, 110 N.W. 75 (1906); People v. Tanner, 387 Mich. 683, 686-687, 199 N.W.2d 202 (1972). With the exception of first-degree murder and certain major drug offenses, where life imprisonment without parole is required, the Legislature has authorized and approved a sentencing scheme of indeterminate sentences.

The Legislature in addressing indeterminate sentencing in M.C.L. Sec. 769.8; M.S.A. Sec. 28.1080 has provided in pertinent part the following:

When a person is convicted for the first time for the commission of a felony, and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, [177 MICHAPP 140] but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence. [Emphasis added.]

In addition, M.C.L. Sec. 769.9(2); M.S.A. Sec. 28.1081(2) provides:

In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the The crimes for which defendant now stands convicted are "punishable by imprisonment in the state prison for life or any term of years." See M.C.L. Sec. 750.317; M.S.A. Sec. 28.549 (second-degree murder) and M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2) (criminal sexual conduct in the first degree). As stated by our Supreme Court in People v. Johnson, 421 Mich. 494, 497-498, 364 NW2d 654 (1984):

minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.

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 [177 MICHAPP 141] 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. [Emphasis added.]

The sentencing judge in this case had the authority to impose a sentence of life imprisonment or a term of years; that is, the indeterminate sentence contemplated by the Legislature in its sentencing scheme. If life imprisonment had been imposed, under Michigan's "lifer law" defendant would have been...