People v. Martinez, Docket No. 167148

Decision Date21 April 1995
Docket NumberDocket No. 167148
Citation532 N.W.2d 863,210 Mich.App. 199
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rudolpho Soto MARTINEZ, Defendant-Appellant. (After Remand)
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Joseph K. Sheeran, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for people.

State Appellate Defender by P.E. Bennett, for defendant on appeal.

Before MARILYN J. KELLY, P.J., and CYNAR * and WILDER, ** JJ.

AFTER REMAND

CYNAR, Judge.

In 1984, defendant pleaded guilty of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and of being a fourth-felony habitual offender, M.C.L. § 769.12; M.S.A. § 28.1084, in exchange for the dismissal of first-degree murder charges, M.C.L. § 750.316; M.S.A. § 28.548, in the beating death of his sixteen-year-old girl friend. In 1993, defendant was resentenced to a term of 70 to 116 years. This is defendant's third appeal as of right. 1 We affirm in part and remand for modification of defendant's sentence and for correction of the presentence report.

Defendant first argues that his sentence is disproportionate. We disagree.

Although the sentencing guidelines do not apply to habitual offender convictions, the trial court must compute the guidelines for the underlying offense. People v. Cutchall, 200 Mich.App. 396, 409, 504 N.W.2d 666 (1993). Contrary to what the trial court apparently believed, the guidelines are a helpful tool to be considered in habitual offender cases. People v. Derbeck, 202 Mich.App. 443, 446-449, 509 N.W.2d 534 (1993). However, because the fourth-felony habitual offender statute, M.C.L. § 769.12; M.S.A. § 28.1084, authorizes enhancement of the statutory maximum up to any term of years or life, comparing the degree of enhancement authorized by the statute to the range recommended by the guidelines is of limited utility. Derbeck at 448-449, 509 N.W.2d 534.

In this case, the guidelines' range for the underlying offense of voluntary manslaughter was seven to ten years. As will be seen below, defendant's amended sixty-year minimum sentence is six times the upper end of the range. The trial court justified its sentence with the brutality of the crime, defendant's assaultive record, the danger he represents to society, and the court's perception that defendant had not changed much in his ten years in prison. We find no abuse of discretion.

Next, defendant argues that the trial court erred in refusing to order that a totally new presentence information report be prepared, in refusing to strike certain matters from the supplemental report, and in leaving legible materials that it had agreed to strike. Although we agree in part, resentencing is not required.

There is no requirement that a completely new report be prepared for resentencing. A supplemental report was properly prepared in this case in compliance with People v. Triplett, 407 Mich. 510, 511, 287 N.W.2d 165 (1980). As required by the statute, inaccuracies were "stricken." See M.C.L. § 771.14(5); M.S.A. § 28.1144(5); see also MCR 6.425(D)(3)(a). There is no requirement that information to which challenges were sustained be made completely illegible at the time of sentencing, as long as it is "stricken" and the court does not consider it.

With regard to defendant's juvenile record, the trial court refused to strike a reference to assault and possession of marijuana with subsequent probation. The court stated on the record that the information had "no bearing at all on the sentence and it will not be considered on the sentence." The trial court nevertheless declined to strike the entry because the court thought that the information might be useful to the Department of Corrections for some unspecified purpose.

We agree with defendant that the court erred in refusing to strike information that it deemed irrelevant. See M.C.L. § 771.14(5); M.S.A. § 28.1144(5); see also MCR 6.425(D)(3)(a). However, because the information was not considered, the error was harmless beyond a reasonable doubt. People v. Fisher, 442 Mich. 560, 567, n. 4, 503 N.W.2d 50 (1993). Nevertheless, on remand, the information should be stricken and a corrected copy of the report should be transmitted to the Department of Corrections. People v. Swartz, 171 Mich.App. 364, 380-381, 429 N.W.2d 905 (1988); People v. Taylor, 146 Mich.App. 203, 205-206, 380 N.W.2d 47 (1985). We stress that, because the court deemed the information irrelevant, defendant is not entitled to resentencing.

Defendant next argues that the trial court erred in considering disciplinary credits in calculating his minimum sentence because, as an habitual offender, he would not be eligible to earn disciplinary credits. We agree.

Persons sentenced as habitual offenders are not eligible for parole before the expiration of the minimum sentence except by written permission of the sentencing judge or the judge's successor. M.C.L. § 769.12(3); M.S.A. § 28.1084(3). Therefore, they may not earn disciplinary credits. People v. Lincoln, 167 Mich.App. 429, 431, 423 N.W.2d 216 (1987). The trial court therefore erred in considering such credits in determining whether the minimum sentence exceeded defendant's life expectancy. Rather than reversing, however, we remand for amendment of the sentence to correspond to the 60- to 100-year term that the trial court stated it would impose if this Court determined that consideration of disciplinary credits was improper.

Lastly, defendant argues that his sentence should be set aside because it exceeds his life expectancy. We disagree. Under the amended sentence, defendant will be eligible for parole when he is eighty-five. Because we are bound by precedent holding that a defendant has a "reasonable prospect" of living into his early nineties, the amended sentence does not violate People v. Moore, 432 Mich. 311, 329, 439 N.W.2d 684 (1989). See People v. Weaver (After Remand), 192 Mich.App. 231, 234-235, 480 N.W.2d 607 (1991).

Affirmed in part and remanded for modification of defendant's sentence and correction of the presentence report in accordance with this opinion. We do not retain jurisdiction.

MARILYN J. KELLY,...

To continue reading

Request your trial
7 cases
  • People v. Lockridge
    • United States
    • Court of Appeal of Michigan — District of US
    • February 13, 2014
    ...orders the trial court to transmit a corrected copy of the report to the Department of Corrections. See People v. Martinez (After Remand), 210 Mich.App. 199, 203, 532 N.W.2d 863 (1995), overruling on other grounds recognized by People v. Edgett, 220 Mich.App. 686, 692–694, 560 N.W.2d 360 (1......
  • People v. Yeoman, Docket No. 165345
    • United States
    • Court of Appeal of Michigan — District of US
    • August 23, 1996
    ...the fact that the guidelines do not, strictly speaking, apply to habitual offender sentences. See, e.g., People v. Martinez (After Remand), 210 Mich.App. 199, 201, 532 N.W.2d 863 (1995); People v. Derbeck, 202 Mich.App. 443, 446-447, 509 N.W.2d 534 (1993). However, because the guidelines we......
  • People v. Edgett
    • United States
    • Court of Appeal of Michigan — District of US
    • December 27, 1996
    ...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) (usef......
  • People v. Love
    • United States
    • Court of Appeal of Michigan — District of US
    • November 17, 1995
    ...not exceed his life expectancy. A defendant has a reasonable prospect of living into his early nineties. People v. Martinez (After Remand), 210 Mich.App. 199, 203, 532 N.W.2d 863 (1995). In this case, defendant was thirty-two years old when the sixty-year minimum sentences were imposed at t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT