People v. Martinez

(concurring in part and dissenting in part). I am not persuaded by defendant’s claim that the trial court erred in considering disciplinary credits when crafting his sentence. Under People v Rushlow, 437 Mich 149, 155-156; 468 NW2d 487 (1991), a trial court may properly consider regular, but not special, disciplinary credits in fashioning an appropriate sentence under People v Moore, 432 Mich 311, 329; 439 NW2d 684 *388(1989), but must not consider disciplinary credits as a reason for enhancing a sentence as proscribed by People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987). The majority has misinterpreted Fleming and Rushlow in this regard.

When a trial judge is faced with a defendant whose crime and personal circumstances call for the lengthiest prison term possible, it is irrational to require that judge to adhere to the rule of Moore without considering the effect of disciplinary credits. Were such a judge to accomplish such a feat, the resulting sentence would very likely fail to meet most, if not all, of the proper objectives of sentencing.

Therefore, People v Weaver (After Remand), 192 Mich App 231; 480 NW2d 607 (1991), was correctly decided.

Accordingly, I am not reluctant to reject defendant’s claim that he cannot reasonably be expected to serve his sentence before death overtakes him. Rushlow,{154, 156; Weaver, 234-235.

In all other respects, I concur with the majority.