People v. Moore

• Citation: 439 N.W.2d 684,432 Mich. 311
• Decision Date: 08 May 1989
• Docket Number: Docket No. 80432
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy MOORE, Defendant-Appellant. 432 Mich. 311, 439 N.W.2d 684, 57 U.S.L.W. 2722
• Court: Michigan Supreme Court

Page 684

439 N.W.2d 684

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy MOORE, Defendant-Appellant.

Docket No. 80432.

432 Mich. 311, 439 N.W.2d 684, 57 U.S.L.W. 2722

Supreme Court of Michigan.

Argued May 3, 1988.

Decided May 8, 1989.

Frank J. Kelley, Atty. Gen., Louie J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, Mary Sue Czarnecki (P-37194), Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by P.E. Bennett and Fred E. Bell, Asst. Defenders, Lansing, for defendant-appellant.

Elizabeth L. Jacobs, P24245, Detroit, for amicus Joseph Cole.

OPINION

CAVANAGH, Justice.

The defendant has been convicted of second-degree murder ¹ and sentenced to a term of from 100 to 200 years in prison. He argues that the sentence is unlawful. We agree, and we therefore remand this case to the trial court for resentencing.

I

In February of 1985, the defendant killed a woman with whom he had been romantically involved. The defendant was prosecuted for first-degree murder ² and for possession of a firearm during the commission of this felony. ³

Three witnesses testified at the defendant's trial. With minor variations, they testified as follows. The victim and her current fiance were home when the defendant and the defendant's sister arrived. ⁴ The defendant sought to speak with the victim. After a time, the defendant produced a pistol from a briefcase and took the victim to another room, out of the witnesses' sight. The victim was heard pleading not to be killed and then one or two shots were heard. The victim's fiance went to get help, and the defendant's sister fled. On his return, the victim's fiance found her "laying [sic] in the kitchen [with] quite a few stab wounds to the chest." The defense introduced no proofs.

The jury found the defendant guilty of second-degree murder and felony firearm. As noted by the sentencing judge, the presentence report in this case indicated that the defendant had a history of assaultive crime and that the defendant had been harassing the victim, and perhaps planning to harm her, for some time. The defendant did not challenge the accuracy of the presentence report.

The sentencing judge imposed a term of from 100 to 200 years in prison for second-degree murder. ⁵ In doing so, he clearly stated that the purpose of the 100- to 200-year sentence was to foreclose parole:

"Because the appellate courts of our state have said that in point of fact a life sentence for this sort of crime allows him to be reviewed in ten years, I intend to utilize numbers with the belief that the law requires that the numbers be served before you become eligible for review." ⁶

II

The Court of Appeals affirmed the convictions and sentence. ⁷ The Court said that the defendant's 100- to 200-year sentence was not cruel or unusual punishment ⁸ and that the sentencing judge had not abused his discretion:

"A sentence does not constitute cruel and unusual punishment when it is within statutory limits and does not shock the judicial conscience. People v Curry, 142 Mich App 724, 733; 371 NW2d 854 (1985); People v Knoll, 137 Mich App 701, 704; 358 NW2d 926 (1984).

"Here, the sentence was within the 'life or any term of years' sentence authorized by statute, MCL 750.317; MSA 28.549. Moreover, we believe that, contrary to defendant's argument, the fact that parole will not be available prior to defendant's life span does not make the sentence erroneously harsher than a life sentence. People v Rodgers, 30 Mich App 582, 584-585; 186 NW2d 840 [1971]; People v Charles Williams, 19 Mich App 544, 546; 172 NW2d 897 [1969] (1971), lv den 386 Mich 783 (1972).

"This case is similar to People v Martinez, 147 Mich App 94; 382 NW2d 741 (1985), lv den 425 Mich 873 (1986), cited by plaintiff. In Martinez, defendant was convicted of manslaughter and habitual offender, fourth offense, and was sentenced to a prison term of 100 to 150 years. Defendant claimed, inter alia, that the sentence was an abuse of discretion because it was longer than his life expectancy and designed to prevent him from qualifying for parole. This Court rejected these arguments, concluding:

" 'First, it was evident that the sentence imposed was fashioned to insure that Mr. Martinez would never be a free man again. The trial judge quite pointedly stated that he intended "to design a sentence that will mean that Mr. Martinez will not be released from prison." Under the statute, MCL 769.12; MSA 28.1084, the trial court had the authority to sentence Mr. Martinez for life or for any lesser term. The trial judge obviously selected the long term of years instead of life in hopes that the "lifer law," MCL 791.234(4); MSA 28.2304(4), would not apply so as to make Mr. Martinez eligible for parole consideration after serving ten calendar years. See People v Johnson, 421 Mich 494; 364 NW2d 654 (1984). We are persuaded that the trial court did not err in imposing a lengthy term of years where such a sentence is expressly authorized by statute and warranted by a dispassionate consideration of legitimate sentencing criteria and objectives.

" 'The second aspect of Mr. Martinez's argument is that, in effect, the trial court imposed a sentence which will exceed his life expectancy. Obviously, that was the trial court's intent and there is no showing that such a sentence was not justified. In fact, there is no claim that this sentence should shock this Court's conscience nor could there be. Mr. Martinez's extensive prior record fully supported the imposition of the sentence in this case.' 147 Mich App at 95-96 .

"Similarly, the trial court here specified that it wanted to impose a sentence that would keep defendant in prison for the rest of his life, while preventing the possibility that defendant would be paroled in 10 years under the 'lifer law.' The trial court also considered the 'heinous and shocking' nature of the crime, defendant's prior criminal record, deterrence and the needs to protect society and to punish defendant. These factors were all legitimate and, considering these factors, the sentence does not shock the conscience of this Court. The mere fact that the sentence exceed's [sic] defendant's life expectancy does not change this result. People v Martinez, supra; People v Coles, 417 Mich 523; 339 NW2d 440 (1983). See also People v Crawford, 144 Mich App 86 -90; 372 NW2d 688 (1985). Cf. People v Hurst, Mich App [573; 400 NW2d 685 (1986) ]."

We granted leave to appeal to consider several aspects of the sentence imposed in this case. ⁹ People v. Timothy Moore, 429 Mich. 858, 412 N.W.2d 924 (1987).

III

A. The Penalty for Second-Degree Murder

Employing language used in connection with a number of other offenses, ¹⁰ the Legislature has established that second-degree murder "shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same."

On its face, the stated penalty for second-degree murder ("life, or any term of years") indicates that a term of years is a lesser penalty than life. ¹¹ This is well explained in People v. Oscar Moore, 164 Mich.App. 378, 389-391, 417 N.W.2d 508 (1987). ¹² In that case, the defendant had been given a 100- to 300-year term of imprisonment following a conviction of armed robbery. The Court of Appeals built upon the majority opinion in People v. Johnson, 421 Mich. 494, 364 N.W.2d 654 (1984), to reach the conclusion that "any term of years" must mean a period shorter than life.

"We believe that [certain earlier decisions] misconstrue the phrase 'any term of years.' In People v Blythe, 417 Mich 430; 339 NW2d 399 (1983), the Supreme Court considered whether the phrase 'for any term of years' in the armed robbery statute required imposition of a mandatory minimum sentence. In determining that it did not, the Supreme Court concluded that the phrase referred to the maximum sentence to be imposed. 417 Mich at 434 . In Johnson, supra [421 Mich] at 497-498 , the Supreme Court wrote:

" 'The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v Vitali, 156 Mich 370; 120 NW 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.

" 'Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years" it allows 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 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.'

"If 'life' and 'any term of years' are mutually exclusive concepts, the Court's statement that the latter allows imposition of 'any number of years' must mean 'any number of years less than life.'

"By definition, a person cannot serve a prison sentence lasting longer than that person's life. A life term is, as a matter of law, a greater penalty than a term of years. People v McNeal, 156 Mich App 379, 381; 401 NW2d 650 (1986); People v Lindsey, 139 Mich App 412, 415; 362 NW2d 304 (1984). Therefore, it is meaningless for a person to receive a sentence longer than life. The phrase 'any term of years' also cannot mean a time equal to life, as it would then be surplusage for the Legislature to have also provided for life sentences in the same statute.

"All that remains, then, is a term of years less than life." Oscar Moore, 164 Mich.App. at 389-391, 417 N.W.2d 508. (Emphasis in original.)

Thus there are two types of sentences that a judge may impose upon a person convicted of second-degree murder--a...