People v. Yennior, Docket No. 26115

• Decision Date: 20 October 1976
• Docket Number: Docket No. 26115
• Citation: 248 N.W.2d 680,72 Mich.App. 35
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry YENNIOR, Defendant-Appellant. 72 Mich.App. 35, 248 N.W.2d 680
• Court: Court of Appeal of Michigan — District of US

Page 680

248 N.W.2d 680

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry YENNIOR, Defendant-Appellant.

Docket No. 26115.

72 Mich.App. 35, 248 N.W.2d 680

Court of Appeals of Michigan.

Oct. 20, 1976.

Released for Publication Jan. 17, 1977.

[72 MICHAPP 36] Faintuck, Shwedel, Roether, Wolfram & McDonald by William G. Wolfram, Farmington Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward B. Meth, Pros. Atty., for plaintiff-appellee.

Before MAHER, P.J., and RILEY and RYAN,* JJ.

MAHER, Presiding Judge.

Defendant, after a jury trial, was found guilty as charged on a count of delivery of a controlled substance, phencyclidine, M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). The court imposed a sentence of 14 months to 7 years imprisonment. This court granted defendant's application for delayed appeal, filed after the trial court denied defendant's motion for a new trial or resentencing.

This appeal raises two questions: Did the court improperly consider the fact that defendant did not admit guilt when it imposed sentence? Did the court improperly ignore defendant's antecedent, character and circumstances when it imposed sentence? An affirmative answer to either question would require that defendant be resentenced.

As trial courts frequently acknowledge, they are faced with few tasks as difficult as sentencing. Sentencing, quite often the last and most important contact a defendant has with the judicial system, is the most neglected stage of criminal proceedings.

'The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to 'individualize' the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our system of meaningful procedures for the appellate review of sentences, he is denied standards by which to determine any particular sentence or by which to learn what decisions his fellow judges have reached in similar situations.' Coffee, The Future of Sentencing Reform: [72 MICHAPP 38] Emerging Legal Issues in the Individualization of Justice. 73 Mich.L.Rev. 1362, 1362--1363 (1975).

Very little guidance for sentencing courts can be found in the statutes and court rules. In M.C.L.A. § 769.8; M.S.A. § 28.1080, the Legislature, as authorized by Const.1963, art. 4, § 45, has directed sentencing courts to impose indeterminate sentences. This statute states that the sentencing judge 'shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict.' Similar vagueness is found in the statute requiring the probation department to provide the sentencing court with a presentence report. M.C.L.A. § 771.14; M.S.A. § 28.1144 states that 'the probation officer shall inquire into the antecedents, character and circumstances of such person (the defendant) * * * and shall report thereon in writing' to the sentencing court.

The sentencing court, then, must try to utilize his discovery of 'the criminal character or conduct of such convict' and the probation officer's report on 'the antecedents, character and circumstances of such person' in deciding what sentence it shall impose. The court may choose probation, available in all but a few very serious crimes, 'where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law.' M.C.L.A. § 771.1; M.S.A. § 28.1131.

GCR 1963, 785.8 says nothing about the factors the sentencing court should consider. It properly limits itself to procedural matters, including the [72 MICHAPP 39] right of defendant and his lawyer 'to advise the court of any circumstances they believe the court should consider in imposing sentence'.

While appellate courts have clearly stated the objectives of the indeterminate sentencing scheme, they have provided little or no guidance on how to best achieve the objectives of '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', People v. Lorentzen, 387 Mich. 167, 180, 194 N.W.2d 827, 833 (1972). Whatever guidance appellate courts have provided has usually been in the form of a rebuke, pointing out what a court should not have considered when it exercised its sentencing discretion.

An instance of such guidance is People v. Grable, 57 Mich.App. 184, 225 N.W.2d 724 (1974), in which a panel of this court stated:

'(W)e believe that an accused has the right to maintain his innocence after conviction. No additional penalty is to be imposed for continuing to proclaim one's innocence.' 57 Mich.App. at 188--189, 225 N.W.2d at 727.

The case was remanded for resentencing because defendant's refusal to change his story at sentencing, despite questioning by the court, may have enhanced the sentence imposed. Grable, unfortunately, offers little analysis and cites no authority on what constitutes improper sentencing considerations.

In the recent case of People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975), defendant, as does defendant in the case now before us, relied on Grable in asserting that he was improperly sentenced. In Gray, this Court rejected the contention that it was error for the sentencing court to consider[72 MICHAPP 40] defendant's lack of remorse. After pointing out that a presentence report informing the court of defendant's 'antecedents, character and circumstances' is required, the opinion observes that:

'It would seem that a defendant's failure to express any remorse or regret at all concerning a prior conviction, or concerning his commission of a crime which he does not deny, would be a very relevant facet of his character. It may be noted by the probation officer. It may be taken into account by a sentencing court. We therefore hold that, if indeed the trial court did consider defendant's lack of remorse in passing sentence, such was not error.' 66 Mich.App. at 110--111, 238 N.W.2d at 545.

Defendant Gray had taken the stand at trial and offered a story inconsistent with guilt. The mention that he did not deny his crime should not be used to conclude that he acknowledged his guilt yet remained unremorseful.

In Gray, Grable was distinguished as a case in which the court attempted to get defendant to admit guilt and, failing in its attempt, enhanced his sentence. A broader reading of Grable would not be justified; the facts presented in Grable indicate that it was unnecessary for the court to decide whether, in all instances, it is improper for a sentencing court to give any consideration to whether a defendant accepts responsibility or shows remorse for his crime.

The error requiring resentencing in Grable was the court's attempt to reopen, at sentencing, the fact-finding process that a finding of guilt terminated. ¹ See People v. Towns, 69 Mich.App. 475, 245 [72 MICHAPP 41] N.W.2d 97 (1976). At sentencing, the court is bound by the earlier determination of guilt. Questions directed to defendant concerning his involvement in the crime for which he has been convicted place defendant in a bind. If he cooperates and gives the answers the court obviously seeks, he may jeopardize his right to appeal or a motion for a new trial. Miler v. United States, 255 A.2d 497 (D.C.Ct. of App.1969). If he continues to assert his innocence in the face of questioning (we note that juries are not infallible, they are only conclusive), he runs the risk of encouraging a spiteful sentence. A good example of this second alternative is found in Poteet v. Fauver, 517 F.2d 393 (CA 3, 1975).

How a defendant views the criminal activity that his conviction has established can be helpful to a court that must evaluate a defendant's 'antecedents, character and circumstances'. We think there is more than semantics involved in distinguishing between properly giving consideration to remorse or its absence at sentencing and improperly penalizing an assertion of innocence at sentencing. In People v. Bottany, 43 Mich.App. 375, 385, 204 N.W.2d 230, 235 (1972), Justice (then Judge) Levin quoted from the concurring opinion of Judge Leventhal in Scott v. United States, 135 U.S.App.D.C. 377, 395, 419 F.2d 264, 282 (1969):

"It is not easy for me to define why I concur in a judgment of remand. There is a natural, and I believe sound, disposition to adjust sanctions when an offender admits his responsibility. This blends in with a readiness to accept the conclusion that such a person has the stuff that portends future improvement. I dare say that many judges, possibly the overwhelming majority, respond in this way, and I am not ready, at least as of this writing, to say that their approach is inadmissible. The wellsprings of human experience are known to every parent concerned with bringing up children, and [72 MICHAPP 42] who has invoked, consciously or not, Parson Weems' account of George Washington and the cherry tree.

"What we have before us is the difference of degree that amounts to a difference in kind. There is a line between responding favorably to an individual's sincere expression of remorse, and Reacting in a hostile way because of a personal belief in the guilt of one who maintains his innocence and seeks review of the judgment." (Emphasis supplied.)

This view, of...