People v. Brooks

Michael J. Kelly, J.

In this case of first impression, we hold that a sentence of eighteen to sixty months for an habitual offender, fourth offense, conviction, is not an abuse of discretion; that a downward departure from a recommended guidelines’ minimum for the underlying offenses is within the discretion of the sentencing court; and that there is no obligation to enhance punishment upon conviction of being an habitual offender.

On May 21, 1991, defendant pleaded guilty of being an habitual offender, fourth offense, and, on June 6, 1991, was sentenced to eighteen to sixty months in prison. The judgment of sentence purports to set aside sentences for the underlying convictions of armed robbery and breaking and entering. The record shows, however, that the trial *201court stated, "It is not necessary that I sentence you on the armed robbery or the breaking and entering, and so I will move directly to the habitual.” Both sides agree that the guidelines’ lowest minimum recommended sentence for the underlying offenses was five years. (The habitual offender sentence was to be served consecutively to a previous sentence, as specifically denoted by the court, but we are uncertain regarding the length of time left on that prior sentence before the habitual offender sentence of eighteen to sixty months begins). This Court denied the prosecutor’s application for delayed appeal in an order dated January 10, 1992 (Docket No. 143522). The Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. 439 Mich 980 (1992). The people contend that the habitual offender sentence violates the rule of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We hold it does not.

While the sentencing guidelines are not applicable to habitual offender sentences, the sentences are subject to the principle of proportionality. Some panels of this Court, and many trial courts, use the sentencing guidelines as points of departure, or as reference points when setting habitual offender sentences. People v Williams, 191 Mich App 685; 479 NW2d 36 (1991). During the sentencing proceedings in this case, the court noted that it sometimes used the guidelines for the underlying offense as "guidance on the habitual.” Even if the guidelines were applicable, downward departures would be appropriate if "objective and verifiable,” and the court could consider postarrest as well as prearrest factors. People v Hill, 192 Mich App 102; 480 NW2d 913 (1991). Even if the guidelines were applicable, we believe the court had sufficient *202objective and verifiable factors to justify the downward departure. In other words, analogizing must cut both ways. The trial court examined the crimes and criminal in context, found that defendant had maintained steady employment in New Orleans as a mechanic at Sears & Roebuck until the time of this arrest and extradition, had been involved in a stable relationship, was the father of a child, was engaged to be married to the mother, and had overcome a drug habit, and then concluded that defendant "had turned himself around.” The guidelines, which the dissent concedes do not apply, but nevertheless upon which it relies, set a wide minimum range of five to twenty-five years. The trial court examined the crimes and criminal in context, including the defendant’s profile, family, work habits, rehabilitation, and the five-year lapse before improved fingerprint techniques led to defendant’s identification, and stated:

The case which I am punishing you for is something that happened a long time ago, and if it were not for the improved fingerprint identification equipment, you probably would never have come to light to determine exactly whose thumbprints or fingerprints were on the piggy bank or whatever it was that was in the house back in 1985. I believe that you have turned yourself around.
I think I’ve been around here long enough to know, and that is weighing very heavily in the eyes of this court.

The court then proceeded to sentence the defendant to eighteen to sixty months for the habitual offender conviction, plus six months to five years for a separate escape conviction to be served consecutively to the habitual offender sentence. In addition, the court noted that defendant still had *203to serve the balance outstanding on the original sentence that he was serving at the time he walked away from the halfway house.

We find no abuse of discretion. The court constructed a sentence to fit the individual defendant’s particular circumstances. It was not constrained by the guidelines computed on the underlying charges because the guidelines do not apply; nor was it obligated to impose enhanced punishment. People v Hendrick, 398 Mich 410, 424; 247 NW2d 840 (1976); People v Bewersdorf, 438 Mich 55, 66; 475 NW2d 231 (1991), cert den 502 US —; 112 S Ct 1214; 117 L Ed 2d 452 (1992). In People v Willhite, 155 Mich App 124, 127; 399 NW2d 57 (1986), this Court stated:

Likewise, in the within case, where the minimum sentence imposed on defendant as an habitual offender is less than the minimum recommended by the guidelines for the underlying offense, we believe that the trial judge was not required to state any further specific reasons for the sentence.
. . . The leniency exercised by the trial judge in sentencing defendant clearly indicates that the sentence was individualized here.

This Court, often required to pass judgment on sentences so great as to defy any reasonable measure of the defendant’s mortality, seldom finds itself in the shallow end of the pool. We can find no constraints on leniency here. We disagree with the dissent that the facts do not support a downward departure from a guidelines’ minimum that we all agree does not apply. We say only that we will not substitute our judgment for that of the trial court, and we find no abuse of discretion.

Affirmed.

*204W. J. Caprathe, J., concurred.