People v. Weaver

• Decision Date: 16 December 1991
• Docket Number: Docket No. 124373
• Citation: 480 N.W.2d 607,192 Mich.App. 231
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul WEAVER, Defendant-Appellant. (After Remand) 192 Mich.App. 231, 480 N.W.2d 607
• Court: Court of Appeal of Michigan — District of US

Page 607

480 N.W.2d 607

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul WEAVER, Defendant-Appellant. (After Remand)

Docket No. 124373.

192 Mich.App. 231, 480 N.W.2d 607

Court of Appeals of Michigan.

Submitted July 9, 1991, at Detroit.

Decided Dec. 16, 1991, at 9:25 a.m.

Released for Publication March 10, 1992.

[192 MICHAPP 232] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research Training, and Appeals, and Robert A. Radnick, Asst. Pros. Atty., for People.

Paul M. Stoychoff, Franklin, for defendant-appellant on appeal.

Before WEAVER, P.J., and HOOD and GRIBBS, JJ.

WEAVER, Presiding Judge.

This is defendant's second appeal as of right in this case. In a prior unpublished opinion per curiam, decided August 24, 1989, this Court related the factual circumstances, which we quote:

In this case, defendant kicked in the complainant's apartment door. Defendant raped and sodomized the complainant at knifepoint and then demanded money. When the complainant emptied her piggy bank, defendant took the money and said it was not enough. He tied the complainant with a telephone cord, punched her in the stomach, tried to smother her with a pillow and choked her. In her struggle, the complainant managed to free one of her arms and she scratched defendant's face. Defendant then stabbed her repeatedly in the chest and stomach. Defendant dragged the complainant[192 MICHAPP 233] to the bathroom, pushed her into the bathtub and began cutting and stabbing her neck and head. He hit her over the head with a cast iron skillet with such force that the skillet broke. When defendant left the room, the complainant crawled upstairs to a neighbor and knocked on their door until they opened it.

Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. He was sentenced to 50 to 100 years' imprisonment for each of the CSC convictions, 20 to 40 years' imprisonment for the armed robbery conviction, and 100 to 200 years' imprisonment for the conviction of assault with intent to murder. He appealed as of right, and the Court of Appeals, Gribbs, P.J., and Murphy and Neff, JJ., affirmed in an unpublished opinion per curiam but remanded for resentencing consistent with the Supreme Court's ruling in People v. Moore, 432 Mich. 311, 439 N.W.2d 684 (1989), with regard to the sentence for the conviction of assault with intent to murder. (Docket No. 110729). On remand, defendant was resentenced to 75 to 150 years' imprisonment, with credit for 692 days served, for his conviction of assault with intent to commit murder. In the current appeal, defendant claims that his new sentence for the assault conviction violates the statutory rule announced in Moore, supra, hereafter Moore I.

Before determining whether the sentence does in fact violate Moore I, we note that defendant has not raised any challenge to the trial court's exercise of discretion. The only question to be answered is whether the trial court on resentencing fashioned a sentence that defendant can reasonably[192 MICHAPP 234] be expected to serve and, therefore, that comports with statutory requirements as interpreted in Moore I. Compare People v. Moore, 188 Mich.App. 244, 248, 469 N.W.2d 34 (1991), hereafter Moore II.

We reject defendant's assertion that Moore I requires that both the minimum and maximum sentence be reasonably possible for a defendant actually to serve. Only the minimum sentence must satisfy this standard.

We also find no error in the trial court's consideration of disciplinary credits in resolving this statutory issue. Regular disciplinary credits are an appropriate consideration. People v. Rushlow, 437 Mich. 149, 155, 468 N.W.2d 487 (1991). Because defendant was incarcerated after December 30, 1982, and assault with intent to commit murder is a Proposal B offense, the regular disciplinary credit to be considered in this case is five days each month. Rushlow, p. 155, n. 7, 468 N.W.2d 487, M.C.L. Sec. 800.33; M.S.A. Sec. 28.1403, and M.C.L. Sec. 791.233b; M.S.A. Sec. 28.2303(3).

Factually, the record shows that defendant was about thirty years old when first incarcerated in prison on July 8, 1988 with credit for 232 days served. This initial date of prison incarceration, rather than the date of resentencing, is the proper date for calculating the effect of disciplinary credits on defendant's minimum sentence. Moore II, supra, 188 Mich.App. p. 249, n. 1, 469 N.W.2d 34.

Therefore, computing defendant's first possible parole date based upon defendant's beginning to serve his prison sentence on July 8, 1988, we find that defendant will be in his early nineties when first eligible for parole. This places defendant at an age slightly higher than the defendant in Rushlow, supra, will be when first eligible for parole. The defendant in Rushlow, supra, will be eighty-seven years old when first eligible for parole. In [192 MICHAPP 235] approving the sentence in Rushlow, supra, 437 Mich. p. 156, 468 N.W.2d 487, our Supreme Court ruled:

Inasmuch as it is permissible to consider the possible effect of disciplinary credits, we agree with the Court of Appeals that the defendant's 75- to 150-year sentence does not violate the principles set forth in Moore. The deficiencies that were present in Moore are not present here. The defendant has a reasonable prospect of actually serving his sentence. He has not been given an order that is impossible to obey.

Taking judicial notice of ever increasing life expectancies, People v. Holland, 179 Mich.App. 184, 197, 445 N.W.2d 206 (1989), and applying the standards in Moore I, supra, and Rushlow, supra, we likewise find no statutory error in this case. We hold that, in imposing the sentence of 75 to 150 years at the resentencing hearing, the trial court fashioned a sentence that defendant has a reasonable prospect of actually serving. Accordingly, the sentence is affirmed.

Affirmed.

GRIBBS, J., concurred.

HOOD, Judge (concurring in part and dissenting in part).

I must respectfully dissent from that portion of the majority opinion that concludes that this is a sentence that the defendant can reasonably be expected to serve. This appears to be yet another case in which a trial court, with this Court's approval, seems determined to ascertain the limits to which our Supreme Court's ruling in People v. Moore, 432 Mich. 311, 439 N.W.2d 684 (1989), hereafter Moore I, can be pushed without risk of reversal. The trial court quite clearly sought to sentence defendant in this case to nonparolable [192 MICHAPP 236] life imprisonment, and it stated at the sentencing hearing that "no society should have a fear or worry about (defendant) ever again." I in no way condone the bestial and inhumane behavior so graphically set forth in the majority opinion. I am nonetheless convinced that the result reached in this case pushes us beyond the pale of reason into the lap of ludicrousness.

The majority opinion in Moore I, supra, p. 329, 439 N.W.2d 684, concluded:

"For the reasons stated earlier in this opinion, we hold that a "term of years" must be an indeterminate sentence less than life. It must be something that is reasonably possible for a defendant actually to serve.

We decline, however, to adopt either a rigid cap on indeterminate sentences or a rule that a trial court must make a factual determination of a particular defendant's actual life expectancy. Otherwise, the trial court would not only find itself evaluating a defendant's actual state of health, but would find itself reviewing the life expectancies of demographic subgroups, family health histories, and behavioral risks of acquiring certain illnesses, such as cancer and heart disease.

Instead, we simply direct the trial court to fashion a sentence that a defendant in his mid- to late-thirties has a reasonable prospect of actually serving."

Defendant in this case was born in May of 1958 and was thirty years of age at the...