PEOPLE v. WINANS NO 1, 451 Mich. 922 (1996)

549 N.W.2d 538

PEOPLE v. WINANS NO 1

No. 105501.Supreme Court of Michigan.
June 14, 1996.

Summary Disposition June 14, 1996:

In lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed, and the sentence imposed by the trial court is reinstated. MCR 7.302(F)(1). The sentence of

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twenty to thirty years imposed by the trial court on this third-felony offender was not disproportionate. Court of Appeals No. 156967.

LEVIN, J.

I would deny leave to appeal, but could join in an order granting leave to appeal, and dissent from the peremptory reversal of the Court of Appeals.

The defendant was convicted of breaking and entering with intent to commit criminal sexual conduct[1] and pleaded guilty of being an habitual offender, third offense.[2] He was initially sentenced to serve seven years, six months to fifteen years. That sentence was vacated, and he was sentenced as an habitual offender to serve twenty to thirty years.

The Court of Appeals addressed defendant’s assignments of error, and concluded that his conviction should be affirmed, but found that the sentence was disproportionate, and said:

Finally, we agree that defendant’s sentence as an habitual third offender, which was five times the guidelines and was the maximum sentence permitted, was an abuse of discretion because it violates the principle of proportionality. People v Cervantes, 448 Mich. 620; 532 N.W.2d 831 (1995); People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). Without minimizing the seriousness of the offense or the effect on the victim, factors relied on by the trial court in sentencing defendant, we are not persuaded that defendant is the worst possible offender, especially in light of the age of his prior offenses and his age at the time of their commission. Moreover, we agree with defendant that he is not to be assessed points for prior record variable seven because he had no subsequent or concurrent felony convictions. See People v Bewersdorf, 438 Mich. 55; 475 N.W.2d 231 (1991).

Judge MICHAEL J. KELLY, concurring, observed presciently:

I concur in the result reached by the majority. I write only to observe that defendant acknowledges that the correct guidelines range for his evaluation was actually two and one-half years to seven years for the minimum, so the actual minimum sentence that he received on the habitual offender conviction was just less than three times the maximum under what would have been appropriately computed guidelines.

I also note parenthetically that if the past decisions of the Supreme Court on these sentencing issues are any predictors of future decisions as Oliver Wendell Holmes thought they should be, the parties may look forward to reversal of this decision and reinstatement of the sentence that we have found disproportionate. Guidelines mean nothing in habitual cases and next to nothing in

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all other cases because the Supreme Court majorities have disfavored our attempts to discourage disparity.

The Court of Appeals deserves a reasoned rather than a cryptic message explaining what a majority of this Court believes to be the role of the Court of Appeals in reviewing habitual offender sentences for proportionality.

CAVANAGH, J.

I concur with the statement of Justice LEVIN.