People v. Adams

Griffin, J.

(concurring in part and dissenting in part). I concur in that portion of the majority’s opinion recognizing the scientific acceptability of dna identification testing. Further, I join my colleagues in affirming the admissibility of the dna identification testing in this case and in affirming defendant’s convictions. I dissent, however, with regard to the remand for resentencing.

The majority has acted beyond its authority in *282vacating defendant’s sentences and remanding the case for resentencing. No court has the authority to vacate a valid sentence. A remand for resentencing may be ordered only with regard to those sentences that are invalid. In re Dana Jenkins, 438 Mich 364, 369, n 3; 475 NW2d 279 (1991), People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981), and People v James Williams, 437 Mich 1045; 471 NW2d 561 (1991) (Boyle, J., dissenting).

The majority opinion contains no finding that the sentences at issue are invalid. Rather, the majority vacates the sentences and orders resentencing "[b]ecause the defendant’s sentences were more than three times as long as the recommended minimum term of years and because the court failed to state specifically its reasons for departing from the guidelines.” Ante, p 281.

First, I respectfully disagree with the majority’s conclusion that the sentencing judge did not adequately articulate his reasons for departing from the sentencing guidelines. In sentencing defendant, the Honorable Fred M. Mester acknowledged that the sentences imposed exceeded the guidelines. However, Judge Mester stated that he was departing from the guidelines because of defendant’s extremely violent propensities, the serious danger defendant posed to the community, the heinous nature of the multiple crimes committed, and the extreme suffering inflicted upon the victim. Such reasons are sufficient to justify a departure from the guidelines and for the imposition of the maximum penalty allowed by law. See People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and People v Redman, 188 Mich App 516; 470 NW2d 676 (1991). I find the articulation more than adequate.

I further note that the relief ordered by my *283colleagues is inappropriate. The appropriate remedy for failure to articulate is not a full resentencing. A remand solely for articulation of reasons is all that is required. See People v Triplett, 432 Mich 568; 442 NW2d 622 (1989).

The second reason my colleagues give for vacating the sentences is that the sentencing guidelines have been exceeded. However, departure from the guidelines is not itself a reason to vacate a valid sentence. Recently, in People v Redman, supra, we affirmed sixty- to ninety-year sentences, sentences out of the guidelines range, for first-degree criminal sexual conduct and kidnapping convictions, holding that the sentences recommended by the guidelines Were disproportionate to the heinous nature of the offense. Similarly, I find the sentences recommended by the guidelines in the present case disproportionate to both the seriousness of the offense and the background of the offender.

As noted by the sentencing judge, defendant is an exceptionally dangerous individual who has no respect for authority and no sense of morality. At sentencing, defendant remained defiant and unrepentant, turning his back to the judge while his sentences were pronounced. At the conclusion of the hearing, defendant made the following rebellious vow:

The defendant: I’ll be back.

Approximately a month before the present criminal episode, defendant committed substantially similar acts of first-degree criminal sexual conduct, kidnapping, and armed robbery in Macomb County. According to the presentence report, these prior offenses "involve[d] several identical elements to our instant case.” Specifically, defendant, while armed with a knife, abducted a woman, *284forced her to perform sexual acts, and then robbed her.

The facts in the present case are equally as horrendous and have been aptly described by the prosecutor as follows:

This case presented a situation embodying a woman’s worst fear: abduction and brutal rape by an armed stranger—the fear of violent death and the violation of one’s most intimate and private being. A knife was held to the victim’s throat. She was forced to endure the pain and humiliation of forced sexual penetration—both oral and vaginal. The horror she was forced to endure will last as long as she lives.

Additionally, I note that the abduction occurred in a Kmart parking lot shortly before the victim was to pick up her husband at the airport. During the kidnapping, defendant used his knife to cut the victim’s face and both of her hands. Defendant repeatedly held the knife at the victim’s throat and before the rape threatened to slash her between the legs. The victim was thoroughly terrorized and convinced that she was going to die.

Defendant was convicted of three high-severity felonies: first-degree criminal sexual conduct, armed robbery, and kidnapping. Each offense is separately punishable by a sentence of up to life in prison. After thoroughly reviewing the record, I find defendant’s sentence of life imprisonment for his kidnapping conviction and sentences of 70 to 150 years for his convictions of first-degree criminal sexual conduct and armed robbery proportionate to the seriousness of the circumstances surrounding the offenses and the offender. Accordingly, I would affirm.1

*285Finally, I acknowledge that the sentence information report does not contain the attachment (SIR 88-2) on which the sentencing judge is directed to state the reasons for departing from the guidelines. However, this is a ministerial task for which a full resentencing is not required. See, generally, Triplett, supra, and People v Bunn, 166 Mich App 584; 421 NW2d 247 (1988). In this case, the record made at sentencing is more than sufficient to permit appellate review. I would therefore affirm defendant’s convictions and sentences but remand for the completion of the sir guideline departure form._

Defendant’s brief contains a reference to an alleged violation of *285the doctrine of People v Moore, 432 Mich 311; 439 NW2d 684 (1989). However, because this issue is not identified in defendant’s statement of issues, it is unpreserved. People v Yarbrough, 183 Mich App 163, 165; 454 NW2d 419 (1990); also see Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). If the Supreme Court chooses to consider the issue, I urge the Court to revisit People v Moore and overrule it on the ground that it was wrongly decided.