PEOPLE
v.
MERRIWEATHER
Docket No. 131742.
Michigan Court of Appeals.
Submitted February 3, 1993, at Detroit. Decided September 7, 1993, at 9:50 A.M.Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of *384 Research, Training, and Appeals, and Nancy A. Neff, Assistant Prosecuting Attorney, for the people.
Arthur L. Morman, for the defendant.
Before: WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.
MICHAEL J. KELLY, J.
Defendant was convicted by a jury of assault with intent to rob while armed, MCL 750.89; MSA 28.284, assault with intent to murder, MCL 750.83; MSA 28.278, breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct (two counts), MCL 750.520b; MSA 28.788(2). He thereafter was sentenced to life imprisonment for each of the assault convictions, ten to fifteen years' imprisonment for the breaking and entering conviction, and 60 to 120 years' imprisonment for each of the two criminal sexual conduct convictions. He now appeals as of right. We affirm all convictions, but remand for resentencing for the criminal sexual conduct convictions.
Defendant's claim that his convictions must be reversed because the trial court decided his challenge to the voluntariness of his confession without conducting an evidentiary hearing pursuant to People v Walker, 374 Mich. 331; 132 NW2d 87 (1965), lacks record support. Our review of the record reveals that such a hearing was held.
Defendant also challenges his sentences as being violative of the dictates of People v Moore, 432 Mich. 311; 439 NW2d 684 (1989), and People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). Defendant's sentences for the assault convictions and the breaking and entering conviction do not violate *385 either the life expectancy rule announced in Moore or the principle of proportionality announced in Milbourn. The sentences for the criminal sexual conduct conviction are both disproportionate and arguably hard life. The two sixty-year minimum sentences exceed the guidelines' recommended minimum range by forty years, and are three times the guidelines' recommendation. There is no doubt this defendant deserves a severe sentence. We think, however, such lengthy sentences, which are effectively hard life sentences, are unsupportable socially, logically, legally, and economically. Those who contend otherwise ignore real and statistical averages. Keeping ancient, feeble, doddering prisoners in durance is uncivilized, and evidences poor judgment and bad economics.
We do not believe that defendant, who was born in 1971, has a reasonable prospect of actually serving his 60- to 120-year sentences. However, we are constrained under Administrative Order No. 1990-6 to follow this Court's decision in People v Weaver (After Remand), 192 Mich. App. 231; 480 NW2d 607 (1991). The Weaver Court affirmed a 75-year minimum sentence imposed on a defendant who was approximately thirty years old. The Weaver Court concluded that a defendant reasonably could be expected to serve a sentence that would place him in his early nineties before being first eligible for parole. We disagree with and abhor this result, and follow Weaver only because we are required to do so.
However, we find that the 60- to 120-year sentences violate the proportionality requirement of Milbourn. Clearly, considering defendant's background and the nature of his crimes, a severe sentence is warranted in this case. However, the sentences imposed exceeded the guidelines' recommended range by forty years, and are three times *386 the guidelines' recommendation. Under the circumstances, we conclude that this substantial departure violates the proportionality requirement of Milbourn. The 60- to 120-year sentences are set aside, and this matter is remanded for resentencing for the criminal sexual conduct convictions. All the convictions are affirmed, and the sentences for assault and breaking and entering are likewise affirmed.
Affirmed in part and remanded for resentencing for the first-degree criminal sexual conduct convictions.
WAHLS, P.J., concurred.
CONNOR, J. (concurring in part and dissenting in part).
I concur in the majority's affirmance of defendant's convictions. I would affirm defendant's sentences as well. I do not find the 60- to 120-year sentences to violate People v Moore, 432 Mich. 311; 439 NW2d 684 (1989). See People v Weaver (After Remand), 192 Mich. App. 231, 234-235; 480 NW2d 607 (1991). Considering defendant's background and the brutal nature of his crimes, I do not find the sentences to violate People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).