People v. Maben

• Decision Date: 21 February 1995
• Docket Number: Docket No. 166856
• Citation: 528 N.W.2d 850,208 Mich.App. 652
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester MABEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 850

528 N.W.2d 850

208 Mich.App. 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Lester MABEN, Defendant-Appellant.

Docket No. 166856.

Court of Appeals of Michigan.

Submitted Jan. 19, 1995, at Grand Rapids.

Decided Feb. 21, 1995, at 9:20 a.m.

Released for Publication, March 21, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., Dennis M. Wiley, Pros.Atty., and Mary Malesky, Asst. Pros.Atty., for the People.

State Appellate Defender by Anne Yantus, for defendant on appeal.

Before SAWYER, P.J., and BANDSTRA and R.B. BURNS, ^* JJ.

BANDSTRA, Judge.

Defendant pleaded guilty to larceny from a person, M.C.L. § 750.357;M.S.A. § 28.589, and was sentenced to 2 1/2 to 10 years in prison.Defendant now appeals his sentence as of right and we affirm.

Defendant first argues that he is entitled to resentencing because the trial court improperly scored fifteen points under Prior Record Variable (PRV) 6 of the Michigan Sentencing Guidelines when the parole status that accounted for that scoring was already a factor that required a mandatory consecutive sentence under statute.PRV 6 provides that fifteen points must be assessed against an offender if, at the time of the instant offense, the defendant was on parole.Michigan Sentencing Guidelines (2d ed. 1988), p. 97.In addition, M.C.L. § 768.7a(2);M.S.A. § 28.1030(1)(2) provides that a person who commits a felony while on parole from a sentence for a previous offense shall receive a sentence for the subsequent offense that runs consecutively to the sentence imposed for the previous offense.People v. Young, 206 Mich.App. 144, 154, 521 N.W.2d 340(1994).

To adopt defendant's argument that impermissible "double counting" occurred when the trial court scored points under PRV 6 and also imposed a consecutive sentence under the statute would have broad consequences.PRV 6 is included in the scoring for every offense contained in the sentencing guidelines and the effect would be to repeal all these provisions.We see no reason to reach that extreme result.

When PRV 6(formerly PRV 7) was first adopted in 1983, points were to be scored against an offender even if the offender's situation required consecutive sentencing.We presume that, when M.C.L. § 768.7a(2);M.S.A. § 28.1030(1)(2) was amended effective June 1, 1988, to expand consecutive sentencing situations, the Legislature was aware of former PRV 7 and its negative effect on an offender who was on parole.SeeK & K Woodworking, Inc. v. MESC, 206 Mich.App. 515, 519, 522 N.W.2d 694(1994).Similarly, when the sentencing guidelines were subsequently revised, effective October 1, 1988, it is presumed that the sentencing guidelines committee was aware of the amended consecutive sentencing statute.Cf.K & K Woodworking, supra.Quite simply, the sentencing guidelines committee and the Legislature, each knowing of the other's actions, separately decided to penalize offenders already on parole in different manners.Defendant cites no authority to say this was wrong, and we are aware of none.SeePeople v. Hunter, 202 Mich.App. 23, 27, 507 N.W.2d 768(1993).To ignore either the guidelines or the consecutive sentencing statute would be erroneous.Thus, the trial court properly applied both penalties.

Defendant next argues that assessing points under both PRV 2andPRV 6 is, in effect, assessing points twice for the same misconduct.We disagree.Points are assessed under PRV 2 because of an offender's prior felony history.PRV 2 thus reflects the legitimate policy decision that a longer sentence is warranted because it is not the first time that the offender was in trouble with the law.PRV 6 serves a different purpose.It recognizes that a subsequent offense is...