People v. Wybrecht

• Decision Date: 07 March 1997
• Docket Number: Docket No. 185428
• Citation: 564 N.W.2d 903,222 Mich.App. 160
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Yves WYBRECHT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 903

564 N.W.2d 903

222 Mich.App. 160

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Yves WYBRECHT, Defendant-Appellee.

Docket No. 185428.

Court of Appeals of Michigan.

Submitted Dec. 4, 1996, at Detroit.

Decided March 7, 1997, at 9:05 a.m.

Released for Publication May 22, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for People.

Jeanice Dagher-Margosian, Ann Arbor, for defendant-appellee.

Before RICHARD ALLEN GRIFFIN, P.J., and T.G. KAVANAGH ^* and D.B. LEIBER ^**, JJ.

GRIFFIN, Presiding Judge.

Pursuant to a plea bargain, defendant pleaded nolo contendere to three counts of criminal sexual conduct in the second degree, M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a). Thereafter, the trial court sentenced defendant to concurrent terms of two to fifteen years' imprisonment and ordered defendant into custody. Almost two weeks later, the trial court stayed defendant's sentences. The lower court then granted defendant's motion for resentencing, and, on resentencing, reduced defendant's concurrent sentences to ninety days in jail and five years' probation. The prosecution appeals as of right. We reverse and reinstate defendant's original sentences.

We hold that sentence review for compliance with the principle of proportionality is a function vested exclusively with the appellate courts. Further, because defendant's original sentences were valid, the trial court lacked authority to order resentencing.

I

In June 1994, the victim's mother informed the Ann Arbor police that defendant, the victim's twenty-one-year-old uncle, had sexually molested her five-year-old son. On the strength of the victim's preliminary examination testimony that defendant and the victim had repeatedly touched each other's penises and performed fellatio on each other, ¹ the district court bound defendant over for trial on two counts of first-degree and three counts of second-degree criminal sexual conduct. The district court also found defendant to be competent to stand trial, despite the effects of fetal alcohol syndrome that impeded defendant's brain development and resulted in his low-average eighty-four intelligence quotient (IQ).

Thereafter, defendant pleaded nolo contendere in the circuit court to three counts of second-degree criminal sexual conduct in exchange for the withdrawal of the two first-degree criminal sexual conduct charges. Before sentencing, defendant submitted to the trial court a number of psychologists' reports describing defendant's condition and opining that prison may harm defendant. ² The presentence report also detailed defendant's disability and noted that his mental and emotional maturity approximates that of an eleven year old. ³ Defendant's probation agent recommended that, in order to "salvage this young individual," defendant should receive medication and therapy and participate in a tethering program. However, a senior probation agent recommended a prison sentence because defendant "could be a threat to the general community; as a pedophile, [defendant] will be difficult to cure and it is well documented that pedophiles may seek multiple victims."

The sentencing judge concluded that defendant should be sentenced within the guidelines, although he recognized that his sentencing decision was exceptionally difficult. After deliberation, the trial court sentenced defendant at the very low end of the guidelines' range, ⁴ ordered defendant into custody, and executed the judgment of conviction. Thirteen days later, defendant filed a motion to stay his sentence and a motion for resentencing. Attached to defendant's motions were several psychologists' reports (many of which had been referred to by defense counsel at sentencing) opining that prison may be detrimental to defendant. ⁵ The trial court granted defendant's motion for a stay and ordered that "defendant shall be kept in the county jail until further order of the court."

Two weeks later, the trial court granted defendant's motion for resentencing. In granting the motion, the sentencing judge stated:

I reviewed the materials and ... have looked at the situation. And we know that the Court of Appeals has, on occasion, said that sentence is improper--its--its--on its face it appears to be legal but improper, but considering all the circumstances that it's not.

I've--after review of the--I've attempted to look at it as though--not reviewing what I've done myself, but whether looking at it as the defendant's entitled to, as are the People, but having somebody look at the total situation and see whether it appears that there is--it was proper or improper. And as the judge, of course, that did it, I'm the one that's ultimately responsible for seeing that it's properly done; and I'm--it is my decision that the defendant should be resentenced.

And I think--and the bottom line is, that is that I believe that I did not, perhaps, have all the information that I should have had and did not properly use the information that I did have....

I want to just state for the record some of the factors that I've given more consideration to since. One is that--the defendant's chronological age. Yes, I was aware of that but I don't think that--in terms of what an appropriate sentence was, looking back at it, that I gave sufficient input to that. I agreed with the statement that defense counsel made that--about sending a child to prison. It's--in fact, I've had the thought that there should be--there must be some other way to deal with it. I don't know. Depending on the circumstances sometimes there is not, but under the facts of this case that I've decided it's wrong to make that the first option rather than the last option.

The information that I received that parole is not something that normally happens with offenses of this type in the first instance, which we've come to--we've all heard the stories of people being on the--out on the street before the judge has had time to get the paperwork done, and perhaps we expect that to happen in every case. And I don't believe I had--if I had the information, I didn't give it sufficient consideration that the defendant would--may well not be out on parole at the first instance.

The--I attempted, as I do, to sentence people within the guidelines. And I think that ... they should not apply to the facts that we have here, and that the sentence that was imposed violates the principle of being proportionate considering all of the factors. I believe that, on reflection, had I considered all that evidence, that I would not have sentenced the defendant to prison. [Emphasis supplied.]

In resentencing defendant, the trial court stated:

The court recognizes that this sentence is outside the guidelines. And for the reasons stated when I agreed to resentence the defendant and particularly because of the defendant and his developmental age, if that's the proper term, and what may well happen to him if he does go to prison and the lack of the availability of early parole if he does go to prison, those are reasons for deviating from the guidelines.

II

MCR 6.429(A) provides that the trial court "may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law." ⁶ Accord People v. Thomas, 447 Mich. 390, 393, 523 N.W.2d 215 (1994); In re Jenkins, 438 Mich. 364, 475 N.W.2d 279 (1991); People v. Kelly, 213 Mich.App. 8, 11-12, 539 N.W.2d 538 (1995). This court rule codifies the well-settled principle that the trial court lacks authority to set aside a valid sentence once the defendant begins serving it. Moore v. Parole Bd., 379 Mich. 624, 642, 154 N.W.2d 437 (1967); People v. Connor, 348 Mich. 456, 83 N.W.2d 315 (1957); People v. Chivas, 322 Mich. 384, 34 N.W.2d 22 (1948); In re Mason, 8 Mich. 70 (1860); People v. Catanzarite, 211 Mich.App. 573, 582-583, 536 N.W.2d 570 (1995); People v. Williams, 65 Mich.App. 531, 533-534, 237 N.W.2d 545 (1975). Indeed, such an action may infringe upon the Governor's commutation powers and intrude upon the parole board's jurisdiction. In re Jenkins, supra at 368, 475 N.W.2d 279; People v. Whalen, 412 Mich. 166, 169, 312 N.W.2d 638 (1981); People v. Freleigh, 334 Mich. 306, 54 N.W.2d 599 (1952); People v. Meservey, 76 Mich. 223, 42 N.W. 1133 (1889); People v. Erwin, 212 Mich.App. 55, 63, 536 N.W.2d 818 (1995); Wayne Co. Prosecutor v. Recorder's Court Judge, 164 Mich.App. 740, 417 N.W.2d 594 (1987), aff'd In re Jenkins, supra. Thus, absent a tangible legal or procedural error that makes a sentence invalid, the trial court cannot alter a sentence that a defendant has begun to serve. In re Jenkins, supra at 368, 475 N.W.2d 279; Catanzarite, supra at 582-583, 536 N.W.2d 570; People v. Councell, 194 Mich.App. 192, 193-194, 486 N.W.2d 350 (1992), citing Mich.Ct.R., p. R. 6.4-13; People v. Jackson, 63 Mich.App. 249, 255, 234 N.W.2d 471 (1975).

In the present case, the trial court did not declare defendant's prior sentences invalid on any established ground. See, generally, Whalen, supra at 169-170, 312 N.W.2d 638. Instead, the trial court reevaluated information it possessed at the original sentencing, reviewed additional information regarding defendant's disability, and assessed defendant's likelihood of early parole. After doing so, the trial court ruled that its original sentences violated the principle of proportionality, thereby entitling defendant to resentencing. On appeal, the prosecution argues that the trial court exceeded its authority by ordering resentencing because grounds for resentencing pursuant to MCR 6.429(A) did not exist. We agree.

A

The first issue is whether the trial court possesses authority pursuant to MCR 6.429 to reconsider its discretionary sentencing decisions and to order resentencing when it determines that its previously imposed sentences violate the...