People v. Lucas

T. G. Kavanagh, J.

(dissenting). I respectfully dissent.

I believe that the factors relied upon by the trial court in departing from the sentencing guidelines range do not justify the sentence imposed. People v Winchell, 171 Mich App 662, 667; 430 NW2d 812 (1988); People v Williams, 168 Mich App 150; 424 NW2d 1 (1988). There is nothing in the circumstances surrounding the October 30, 1987, bank robbery that either were not already taken into consideration by the guidelines or constituted an aggravating factor sufficient to warrant the departure made. As Judge Shepherd has stated:

The problem we face in these cases is that the guidelines include factors such as the severity of the offense, the past record of the defendant, and the sentences historically imposed throughout the state. If the trial judge justifies a departure from the guidelines by stating that he does so because of *537the nature of the offense and the record of the offender, the trial court has considered these factors twice. If we say that the trial judge may, in an individual case, place greater emphasis on any given factor by simply announcing on the record his intention to do so, the guidelines become nothing more than a litany of magic words used to mask the imposition of subjective, arbitrary and disparate sentences — the very problem which [People v Coles, 417 Mich 523; 339 NW2d 440 (1983)] and the guidelines were designed to eliminate. [People v Rutherford, 140 Mich App 272, 280; 364 NW2d 305 (1985). (Shepherd, J., concurring).]

The record discloses that defendant’s sentence far exceeds that needed to discipline defendant or to protect society. Williams, supra, p 152. The presentence investigation report reveals that defendant has led a "squeaky clean [life] for the better part of the past 10 years.” The report also reveals that defendant has a lengthy employment history, that he is considered a "good neighbor and a good family man” and that he is remorseful and prepared to accept punishment for his wrongdoing. In the presentence investigator’s opinion, "the probability of Mr. Lucas engaging in this type of behavior again is very low.”

For the aforementioned reasons, I do not believe that the sentence imposed was an appropriate response to the crime and the criminal. Coles, supra, pp 542-543. Accordingly, I would hold that the sentence is excessive and that its severity shocks the judicial conscience.