People v. Turner, Docket No. 65123

• Decision Date: 06 May 1983
• Docket Number: Docket No. 65123
• Citation: 332 N.W.2d 626,123 Mich.App. 600
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene TURNER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 626

332 N.W.2d 626

123 Mich.App. 600

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene TURNER, Defendant-Appellant.

Docket No. 65123.

Court of Appeals of Michigan.

Submitted Jan. 4, 1983.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and Angela Baryames, Asst. Pros. Atty., for the People.

Timothy K. Dowling, Niles, for defendant-appellant.

Before MacKENZIE, P.J., and R.B. BURNS and QUINNELL ^*, JJ.

PER CURIAM.

Defendant pled guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant was sentenced to imprisonment for life and appeals by right.

Defendant first argues that life imprisonment for armed robbery is cruel and unusual punishment in violation of U.S. Const., Am. VIII and Const.1963, art. 1, Sec. 16. The dominant test controlling determination of cruel and unusual punishment under both constitutional provisions is whether the punishment is in excess of any that would be suitable to fit the crime. People v. Lorentzen, 387 Mich. 167, 176, 194 N.W.2d 827 (1972); People v. Stewart (On Rehearing), 400 Mich. 540, 554, 256 N.W.2d 31 (1977). Armed robbery is a crime of violence which creates a serious risk of death or great bodily harm to the victims. In view of the violent nature of the crime, we cannot say that life imprisonment is a punishment in excess of any suitable to fit the crime or that it shocks the conscience of the Court.

In Lorentzen, supra, 387 Mich. pp. 176-177, 194 N.W.2d 827, the Court noted that the mandatory minimum sentence for sale of marijuana was disproportionately long when compared to the sentences for other crimes involving the sale of harmful substances or for various crimes of violence. Here, we note that sentences of life imprisonment are available for other crimes involving a level of violence or a potential for harm to others analogous to that involved in armed robbery. See M.C.L. Sec. 750.83; M.S.A. Sec. 28.278 (assault with intent to murder), M.C.L. Sec. 750.89; M.S.A. Sec. 28.284 (assault with intent to rob while armed), M.C.L. Sec. 750.209; M.S.A. Sec. 28.406 (placing explosives with intent to destroy and cause injury to another person), M.C.L. Sec. 750.349; M.S.A. Sec. 28.581 (kidnapping), M.C.L. Sec. 750.349a; M.S.A. Sec. 28.581(1) (taking of hostages by a prison inmate), M.C.L. Sec. 750.422; M.S.A. Sec. 28.664 (perjury in a trial for a capital crime), M.C.L. Sec. 750.436; M.S.A. Sec. 28.691 (poisoning food, drink, medicine, or wells), M.C.L. Sec. 750.511; M.S.A. Sec. 28.779 (attempt to wreck railroad train), M.C.L. Sec. 750.516; M.S.A. Sec. 28.784 (forcible detention of a railroad train), and M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2) (first-degree criminal sexual conduct).

Defendant points out that the Lorentzen Court emphasized the need of short sentences to serve the goal of rehabilitation; however, this aspect of the test was stated as follows, Lorentzen, 180-181, 194 N.W.2d 827.

"This test looks to a consideration of the modern policy factors underlying criminal penalties--rehabilitation of the individual offender, society's need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society.

"Experts on penology and criminal corrections tend to be of the opinion that, except for extremely serious crimes or unusually disturbed persons, the goal of rehabilitating offenders with maximum effectiveness can best be reached by short sentences of less than five years' imprisonment." (Footnote omitted; emphasis added.)

In view of the extremely serious nature of the crime at issue here, we cannot say that the policy favoring rehabilitation should outweigh the policies favoring deterrence and the protection of society from the offender.

Defendant also complains of the failure of the sentencing judge to articulate on the record the factors considered in imposing sentence. Although the Court in People v. Lee, 391 Mich. 618, 638, 218 N.W.2d 655 (1974), stated that such an explanation would be useful, no court has ever held such an explanation to be required. See People v. Green, 113 Mich.App. 699, 707, 318 N.W.2d 547 (1982). Because defendant's sentence falls within the limits permitted by the statute, we must decline defendant's invitation to review the trial judge's exercise of his sentencing discretion. See People v. Malkowski, 385 Mich. 244, 247-248, 188 N.W.2d 559 (1971), and People v. Burton, 396 Mich. 238, 243, 240 N.W.2d 239 (1976).

Defendant also asks us to declare the effect of M.C.L. Sec. 791.233b; M.S.A. Sec. 28.2303(2) (1978 Initiated Proposal B) on his sentence. No such issue was before the trial court or could have been raised before the trial court in this action, and our resolution of such an issue would make no difference as to whether defendant's conviction and sentence is affirmed or...