People v. McNeal

Decision Date09 March 1987
Docket NumberDocket No. 91559
Citation401 N.W.2d 650,156 Mich.App. 379
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Kevin McNEAL, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Tonatzin M. Alfaro Garcia, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys. Appellate Service, for the People.

James R. Neuhard, State Appellate Defender by Herb Jordon, Detroit, for defendant-appellant on appeal.

Before WAHLS, P.J., and R.B. BURNS and WARSHAWSKY, * JJ.

R.B. BURNS, Judge.

In 1981, defendant pled guilty to armed robbery. M.C.L. Sec. 750.529, M.S.A. Sec. 28.797. He was sentenced to from thirty-five to seventy years in prison. Defendant then appealed as of right to this Court, which affirmed. People v. McNeal, unpublished opinion per curiam of the Court of Appeals, decided August 19, 1983 (Docket No. 59311). The Supreme Court thereafter, in lieu of granting leave to appeal, remanded the case to this Court "for reconsideration in light of People v. Coles, 417 Mich. 523 (1983)." People v. McNeal, 419 Mich. 891, 349 N.W.2d 511 (1984). This Court disposed of the case by order dated October 5, 1984 (No. 79236), remanding the case to the trial court for reconsideration in light of Coles, supra.

On remand, the trial court resentenced defendant to the original thirty-five- to seventy-year prison term. Defendant again appealed and this Court reversed and remanded for resentencing before a different judge, holding that defendant had been denied his right of allocution. People v. McNeal, 150 Mich.App. 85, 389 N.W.2d 708 (1985). On that remand, the trial court imposed a sentence of life in prison. Defendant once again appeals and we once again reverse.

Defendant's sole issue on appeal is that the trial court impermissibly imposed a greater sentence on remand than the one to which defendant was originally sentenced. We agree.

We begin by briefly noting that a parolable life term is, as a matter of law, a lengthier sentence than any term of years, even though a defendant sentenced to life in prison may be eligible for parole before a defendant sentenced to a lengthy term of years. People v. Lindsey, 139 Mich.App. 412, 415, 362 N.W.2d 304 (1984). See also People v. Hutchinson, 155 Mich.App. 84, 399 N.W.2d 448 (1986) (comparison of parolable life sentences and indeterminate sentences under Proposal B).

Thus, defendant's life term, received at the second resentencing, is harsher than the thirty-five to seventy years in prison he received at the original sentencing and the first resentencing. While it is within a sentencing judge's authority to impose a harsher sentence on resentencing following a successful appeal than that originally imposed, that authority is restricted. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Jones, 403 Mich. 527, 271 N.W.2d 515 (1978).

The Supreme Court further explained the Pearce doctrine in Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). Therein, the Court stated the purpose of the Pearce decision:

"To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a 'prophylactic rule,' see Colten v. Kentucky, 407 US 104, 116 [92 S.Ct. 1953, 32 L.Ed.2d 584] (1972), that 'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.' 395 US 726 [89 S.Ct. 2072, 2081, 23 L.Ed.2d 656]. This rule has been read to '[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.' United States v. Goodwin, 457 US 368, 374 [102 S.Ct. 2485, 2489, 73 L.Ed.2d 74] (1982). The rationale for requiring that 'the factual data upon which the increased sentence is based' be made part of the record, of course, is that the 'constitutional legitimacy,' of the enhanced sentence may thereby be readily assessed on appeal. Ibid." 468 U.S. 564-565, 104 S.Ct. at 3220-3221.

The Wasman Court went on to state that a sentencing judge may justify the imposition of a harsher sentence under certain circumstances:

"We hold that after retrial and conviction following a defendant's successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings. 395 US 726 [89 S.Ct. 2072, 2081, 23 L.Ed.2d 656]." 468 U.S. 572, 104 S.Ct. at 3225 (footnote omitted).

The omitted footnote indicated that the Court declined to consider whether a harsher sentence could be justified by reference to an event or conduct occurring before the original sentence.

In the case at bar, the sentencing judge at the second resentencing based his imposition of a life term on the facts of the underlying crime. While the sentencing judge did make reference to defendant's mixed performance in prison, the judge's comments suggest that he considered defendant's prison conduct to be a neutral factor, or, perhaps, even slightly positive.

Thus, we must decide the question which the United States Supreme Court declined to address in Wasman, supra; namely, whether events occurring before imposition of the original sentence may be used to justify the imposition of a harsher sentence on resentencing. We conclude they may not be so considered.

The Michigan Supreme Court, in People v. Payne, 386 Mich. 84, 96-97, 191 N.W.2d 375 (1971), rev'd on other grounds, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), interpreted Pearce, supra, as prohibiting the use of events occurring prior to the original sentencing to justify the imposition of a harsher sentence:

"Pending clarification of Pearce's requirements by the United States Supreme Court, we are persuaded that those courts are correct which have interpreted Pearce to require that the 'identifiable conduct' of the defendant upon which a resentencing judge relies in imposing a stiffer sentence must have occurred after the first sentencing. That the Pearce Court intended this result is evidenced by Mr. Justice White's one sentence opinion advocating the opposite result:

" 'I join the Court's opinion except that in my view Part II-C [standards and procedures governing harsher sentence upon reconviction] should authorize an increased sentence on retrial based on any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding.' (Pearce, supra, [395 U.S. at] p. 751 .)" (Emphasis in original.)

The People urge us to follow the majority opinion in People v. Mazzie, 137 Mich.App. 60, 357 N.W.2d 805 (1984), lv. gtd. 422 Mich. 974 (1985). The Mazzie majority concluded that the ruling in Payne was no longer viable in light of Wasman, supra:

"The Michigan Supreme Court in People v. Payne, 386 Mich. 84; 191 N.W.2d 375 (1971), rev'd on other grounds 412 US 47; 93 S Ct 1966; 36 L Ed 2d 736 (1973), interpreted North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), as requiring that the 'identifiable conduct' of a defendant that a sentencing judge may rely upon in imposing a more severe sentence must have occurred 'after' the first sentence. This interpretation was wrong as evidenced in Wasman v United States, US ; 104 S Ct 3217; 82 L Ed 2d 424 (1984). In Wasman, the Court said Pearce did not prevent consideration of criminal acts committed prior to the original sentencing." Mazzie, supra, pp. 68-69, 357 N.W.2d 805.

We believe that the Mazzie majority misinterpreted Wasman. The Wasman Court, while allowing the use of a conviction which occurred after the original sentencing, even though based on a crime committed before the original sentencing, specifically noted that it was not faced with the question of whether events occurring before the original sentencing may be considered:

"The Solicitor General argues that the 'temporal limitation' imposed by Pearce on information that may be considered by a sentencing authority is unnecessary to advance the policies underlying that decision. However, the question whether an increased sentence can be justified by reference to an event or conduct occurring before the original sentencing is not presented in this case." Wasman, 468 U.S. 572, n *, 104 S.Ct. at 3225, n. *.

This author's dissent in Mazzie continued to adhere to the Payne ruling:

"In People v Payne, 386 Mich 84; 191 NW2d 375 (1971), the Michigan Supreme Court interpreted North Carolina v Pearce, 395 US 711; 89 S Ct 2972 [2072]; 23 L Ed 2d 656 (1969), as requiring that the 'identifiable conduct' of the defendant that a sentencing judge may rely upon in imposing a more severe sentence must have occurred 'after' the first sentence. The trial judge erred by increasing the defendant's sentence. Judge Townsend's expressed reasons for imposing a harsher sentence all relate to the facts adduced at trial relating to defendant's heinous crime that were not known by the prior sentencing judge. The record of the second sentencing does not disclose 'objective information concerning identifiable conduct on the part of defendant...

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7 cases
  • People v. Carson
    • United States
    • Court of Appeal of Michigan — District of US
    • June 4, 1996
    ...opinions in reviewing parolable life sentences. In People v. Lindsey, 139 Mich.App. 412, 362 N.W.2d 304 (1984), and People v. McNeal, 156 Mich.App. 379, 401 N.W.2d 650 (1986), panels of this Court held that sentences of thirty to sixty and thirty-five to seventy years were lesser sentences ......
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    ...v. Oscar Moore, 164 Mich.App. 378, 390, 417 N.W.2d 508 (1987), modified 433 Mich. 851, 442 N.W.2d 638 (1989); People v. McNeal, 156 Mich.App. 379, 381, 401 N.W.2d 650 (1986); People v. Lindsey, 139 Mich.App. 412, 415, 362 N.W.2d 304 (1984). Conversely, in People v. Hurst (After Remand), 169......
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    • January 21, 1988
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