People v. Merriweather

• Decision Date: 07 September 1993
• Docket Number: Docket No. 131742
• Citation: 506 N.W.2d 888,201 Mich.App. 383
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bashara MERRIWEATHER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 888

506 N.W.2d 888

201 Mich.App. 383

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bashara MERRIWEATHER, Defendant-Appellant.

Docket No. 131742.

Court of Appeals of Michigan.

Submitted Feb. 3, 1993, at Detroit.

Decided Sept. 7, 1993, at 9:50 a.m.

Released for Publication Nov. 5, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Nancy A. Neff, Asst. Pros. Atty., for the People.

Arthur L. Morman, Detroit, for defendant.

Before WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.

AMENDED OPINION

MICHAEL J. KELLY, Judge.

Defendant was convicted by a jury of assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284, assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, breaking and entering an occupied dwelling, M.C.L. § 750.110; M.S.A. § 28.305, and first-degree criminal sexual conduct (two counts), M.C.L. § 750.520b; M.S.A. § 28.788(2). He thereafter was sentenced to life imprisonment for each of the assault convictions, ten to fifteen years' imprisonment for the breaking and entering conviction, and 60 to 120 years' imprisonment for each of the two criminal sexual conduct convictions. He now appeals as of right. We affirm all convictions, but remand for resentencing for the criminal sexual conduct convictions.

Defendant's claim that his convictions must be reversed because the trial court decided his challenge to the voluntariness of his confession without conducting an evidentiary hearing pursuant to People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965), lacks record support. Our review of the record reveals that such a hearing was held.

Defendant also challenges his sentences as violative of the dictates of People v. Moore, 432 Mich. 311, 439 N.W.2d 684 (1989), and People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). Defendant's sentences for the assault convictions and the breaking and entering conviction do not violate either the life expectancy rule announced in Moore or the principle of proportionality announced in Milbourn. The sentences for the criminal sexual conduct conviction are both disproportionate and arguably hard life. The two sixty-year minimum sentences exceed the guidelines' recommended minimum range by forty years, and are three times the guidelines' recommendation. There is no doubt this defendant deserves a severe sentence. We think, however, such lengthy sentences, which are effectively hard life sentences, are unsupportable socially, logically, legally, and economically. Those who contend otherwise ignore real and statistical averages. Keeping ancient, feeble, doddering prisoners in durance is uncivilized, and evidences poor judgment and bad economics.

We do not believe that defendant, who was born in 1971, has a reasonable prospect of actually serving his 60- to 120-year sentences. However, we are constrained under Administrative Order No. 1990-6 to follow this Court's decision in People v. Weaver (After Remand), 192 Mich.App. 231, 480 N.W.2d 607 (1991). The Weaver Court affirmed a 75-year minimum sentence imposed on a defendant who was approximately thirty years old. The Weaver Court concluded that a defendant reasonably could be expected to serve a sentence that would place him in his early nineties before being first eligible for parole. We disagree with and abhor this result, and follow Weaver only because we are required to do so.

However, we find that the 60- to 120-year sentences violate the proportionality requirement of Milbourn. Clearly, considering defendant's background and the nature of his crimes, a severe sentence is warranted in this case....