People v. Phillips

• Decision Date: 16 December 1997
• Docket Number: Docket Nos. 191237,191238 and 191766
• Citation: 227 Mich.App. 28,575 N.W.2d 784
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward ROBINSON, Defendant-Appellant. (After Second Remand) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Omar FRAZIER, Defendant-Appellant. (After Second Remand) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christian PHILLIPS, Defendant-Appellant. (After Second Remand)
• Court: Court of Appeal of Michigan — District of US

Page 784

575 N.W.2d 784

227 Mich.App. 28

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward ROBINSON, Defendant-Appellant. (After Second Remand)

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Omar FRAZIER, Defendant-Appellant. (After Second Remand)

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christian PHILLIPS, Defendant-Appellant. (After Second Remand)

Docket Nos. 191237, 191238 and 191766.

Court of Appeals of Michigan.

Submitted Aug. 13, 1997, at Detroit.

Decided Dec. 16, 1997, at 9:00 a.m.

Released for Publication March 10, 1998.

[227 Mich.App. 29] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, [227 Mich.App. 30] Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for People.

Frank M. Frontczak, Detroit, for James E. Robinson.

Craig A. Daly, P.C. by Craig A. Daly, Detroit, for Omar Frazier.

George N. Koklanaris, Detroit, for Christian Phillips.

Before WAHLS, P.J., and TAYLOR and HOEKSTRA, JJ.

AFTER SECOND REMAND

TAYLOR, Judge.

Each defendant has appealed from his resentencing to 65 to 150 years of imprisonment. We have consolidated their appeals and affirm the sentences imposed.

On August 29, 1985, defendants robbed and murdered Paul Hutchins, an off-duty Michigan State Police trooper. Defendants were convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. ¹ Defendants were each sentenced by Judge Michael Talbot to 150 to 300 years in prison for their second-degree murder convictions and 30 to 60 years in prison for the armed robbery convictions. In People v. Frazier, unpublished opinion per curiam of the Court of Appeals, issued March 8, 1990 (Docket Nos. 102749, 102920, 104683), this Court affirmed the convictions and the sentences for the armed robbery convictions but remanded for resentencing with regard to the sentences for the murder convictions because the sentences imposed violated People v. Moore, 432 Mich. 311, 439 N.W.2d 684 (1989). ² At resentencing, Judge Talbot sentenced each defendant to 65 to 150 years in prison. In People v. Phillips (On Rehearing), 203 Mich.App. 287, 291, 512 N.W.2d 62 (1994), this Court held that, even though a most severe sentence was warranted and that a parolable life sentence would have been affirmed posthaste, 65- to 150-year sentences were disproportionately harsh and ordered a resentencing by a different judge. Judge Connor dissented, stating that he did not find the 65- to 150-year sentences in violation of the principle of proportionality. The Supreme Court denied the prosecutor's application for leave to appeal. 450 Mich. 851, 538 N.W.2d 678 (1995). ³

Defendants were resentenced by Judge Karen Fort Hood on October 13, 1995. Judge Hood imposed 65- to 150-year sentences. Defendants now appeal their most recent sentences, arguing that the sentences violate the law of the case doctrine and are disproportionate.

Assuming arguendo that the law of the case doctrine can apply to a resentencing performed by a different judge, ⁴ we find that it does not apply to defendants Phillips and Frazier. The law of the case doctrine is a general rule that applies only if the facts remain substantially or materially the same. ⁵ People v. Fisher, 449 Mich. 441, 444-445, 537 N.W.2d 577 (1995); Johnson v. White, 430 Mich. 47, 52, 420 N.W.2d 87 (1988). We hold that the law of the case doctrine does not apply to defendants Phillips and Frazier because the facts regarding Phillips and Frazier did not remain substantially the same between the time of the first resentencing and the second resentencing.

One of the reasons cited by the trial court for giving Phillips and Frazier 65- to 150-year sentences was their deplorable prison records. The record indicates that Phillips had at least ten prison misconducts after the first resentencing, including attempted bribery of a corrections officer, disobeying a direct order, being out of place, unauthorized occupation of a cell, insolence, substance abuse, and testing positive for THC. ⁶ Further, Phillips had recently been arrested for possession of a weapon (a seven-inch shank). This conduct, in which Phillips engaged after the first resentencing, removes the sentence imposed from the law of the case. ⁷

The same reasoning applies to defendant Frazier. Although his prison record after the first resentencing was not as bad as Phillips', it was bad enough to foreclose application of the law of the case doctrine, i.e., the facts had not remained materially the same. After the first resentencing, Frazier had several misconduct tickets, including one for assault and battery (wherein the victim's jaw was broken), three for insolence, one for failing to appear for class, and a pending misconduct for threatening behavior. Further, a September 20, 1993, report indicated that Frazier had been making poor progress with schooling, was not yet ready for the GED tests, and would be put on a waiting list until he could be more cooperative. The court also indicated that Frazier had refused to go to school, having missed ninety-five percent of his classes. This conduct, in which Frazier engaged after the first resentencing, removes the sentence imposed from the law of the case.

Defendant Robinson's prison record after the first resentencing apparently included only three relatively minor misconduct tickets. The prosecutor correctly conceded at the second resentencing that Robinson's prison record certainly was not as dismal as those of the other defendants. We will assume for the sake of argument that the facts did remain materially the same with regard to Robinson. Notwithstanding Robinson's better prison record after the first resentencing, we still affirm Robinson's sentence.

Particularly in criminal cases, the law of the case doctrine is not inflexible and need not be applied if it will create an injustice. People v. Herrera (On Remand), 204 Mich.App. 333, 340-341, 514 N.W.2d 543 (1994). At least one panel has stated that the law of the case need not be applied where the prior opinion was clearly erroneous. People v. Wells, 103 Mich.App. 455, 463, 303 N.W.2d 226 (1981). For example, in People v. Spinks, 206 Mich.App. 488, 491, 522 N.W.2d 875 (1994), the Court refused to apply the law of the case because there had been an intervening change in the law.

Even in civil cases, the law of the case doctrine has sometimes been described as discretionary rather than mandatory. Bennett v. Bennett, 197 Mich.App. 497, 500, 496 N.W.2d 353 (1992). The doctrine has been described as a general practice and not a limit on a court's power. Locricchio v. Evening News Ass'n, 438 Mich. 84, 108-110, 476 N.W.2d 112 (1991). ⁸ Finally, there are times where the law of the case must yield to a competing interest. Locricchio, supra.

The law of the case doctrine is a weak sister of the doctrine of preclusion, which includes the principle of res judicata. Yet, res judicata will not apply when it would result in inequitable administration of the laws. Young v. Detroit City Clerk, 389 Mich. 333, 340, 207 N.W.2d 126 (1973). A fortiori, we decline to apply a doctrine designed for judicial convenience in fairly administering the obligation to do justice so as to work an injustice.

On the facts of this case, there are several reasons not to apply the law of the case doctrine. First, despite the denial of leave to appeal by the Supreme Court from our prior decision, the Supreme Court itself is not bound to any law of the case, having not itself rendered any pronouncement regarding the merits. Raven v. Bd. of Comm'rs of Wayne County, 399 Mich. 585, 587 n. 1, 250 N.W.2d 477 (1977).

Where it is clear that the Supreme Court would affirm the present sentences (given the Supreme Court's most recent decisions reviewing lengthy sentences discussed below), no valid purpose would be served by robotic adherence to a doctrine designed to promote judicial efficiency, not detract from it so as to waste scarce judicial resources. Accordingly, it would be inappropriate for this Court to force the Supreme Court to do that which we know we ought to do ourselves. Mikedis v. Perfection Heat Treating Co., 180 Mich.App. 189, 203-204, 446 N.W.2d 648 (1989).

Further, since the most recent prior decision in these cases by this Court, the applicable legal principles of sentence review have been substantially altered. Justice Riley's dissent from the denial of leave to appeal this Court's earlier opinion stated that she would have remanded the case for reconsideration in light of People v. Merriweather, 447 Mich 799, 527 N.W.2d 460 (1994), and People v. Houston, 448 Mich. 312, 532 N.W.2d 508 (1995). Merriweather involved a 60- to 120-year sentence that the Court of Appeals had declared to be disproportionate. The Supreme Court disagreed and reinstated the sentence. In Houston, the Supreme Court again rejected a claim that a sentence was disproportionate. This trend in the Supreme Court toward restricting the circumstances under which a lengthy sentence will be found disproportionate has continued. In People v. Mitchell, 454 Mich. 145, 174, n. 34, 560 N.W.2d 600 (1997), the Supreme Court indicated that it had only found two sentences ⁹ disproportionately harsh since People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), was decided, notwithstanding the fact that the issued had been raised in approximately one thousand appeals. Further, in People v. Lemons, 454 Mich. 234, 562 N.W.2d 447 (1997), the Court upheld a parolable life sentence and a 60- to 90-year sentence for a forty-five-year-old defendant. In People v. Hansford (After Remand), 454 Mich. 320, 562 N.W.2d 460 (1997), a 40- to 60-year sentence was upheld for an habitual offender whose underlying offenses were property crimes, burglary, and receiving and concealing stolen property. We also note that the...