People v. Brooks

Fitzgerald, P.J.

(dissenting). I respectfully dissent from the. majority’s conclusion that defendant’s sentence is not disproportionate.

Defendant pleaded guilty of two counts of armed robbery, MCL 750.529; MSA 28.797, and one count of breaking and entering, MCL 750.110; MSA 28.305. Defendant also pleaded guilty of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced to a prison term of eighteen months to five years. The prosecutor’s delayed application for leave to appeal to challenge the sentence imposed was denied by this Court in an order dated January 10, 1992 (Docket No. 143522). The Supreme Court remanded to this Court for consideration as on leave granted. 439 Mich 980 (1992).

On September 12, 1985, defendant and an accomplice broke into the victims’ home at 1:50 a.m. The victims were awakened, assaulted with a handgun, bound with a telephone cord, and placed face down on their bedroom floor. While defendant was in the process of gathering numerous personal items from the victims’ home, the son of one of the victims entered the house and confronted defendant and his accomplice. After a brief fight, the victim’s son was forced at gunpoint into the bedroom where he was forced to lie down next to the other victims.

On appeal, the prosecution’s only issue concerns the proportionality of defendant’s sentence in light of People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).

Although the sentencing guidelines do not apply to habitual offender sentences, People v Sanders, 163 Mich App 606, 612; 415 NW2d 218 (1987), the guidelines for the underlying offense are a useful *205reference point for fashioning proportionate habitual offender sentences. People v Malkowski, 198 Mich App 610, 615; 499 NW2d 450 (1993); People v Williams, 191 Mich App 685, 686; 479 NW2d 36 (1991). Thus, a comparison of the sentence imposed to the guidelines’ range for the underlying offense is useful in determining the proportionality of defendant’s sentence.

The minimum recommended guidelines’ range for the underlying offenses in this case was five to fifteen years. The trial court sentenced defendant to eighteen months to five years. Defendant’s minimum sentence is nearly a threefold downward departure from the lowest end of the guidelines’ range. The maximum sentence imposed was at the lowest end of the guidelines for the underlying offenses. Although a trial court is not obligated to impose enhanced punishment upon an habitual offender, People v Bewersdorf, 438 Mich 55, 66; 475 NW2d 231 (1991), no sentence enhancement occurred as a result of the habitual offender conviction.

A sentencing court is entitled to depart from the guidelines whenever the recommended ranges are considered an "inadequate reflection of the proportional seriousness of the matter at hand.” Milbourn, supra at 661. Departures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing, or where the recommended sentence range is disproportionate, in either direction, to the seriousness of the crime. The key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs or adheres to the guidelines’ recommended range. Id.

In this case, defendant’s sentence is not even within the recommended minimum guidelines’ range for the underlying offenses. As previously *206noted, although the guidelines do not apply to habitual offender sentences, this Court has consistently utilized the guidelines as a gauge in determining whether a sentence imposed for an habitual offender conviction is proportionate. See People v Cutchall, 200 Mich App 396, 409-410; 504 NW2d 666 (1993); People v Odendahl, 200 Mich App 539, 540; 505 NW2d 16 (1993).

The trial court’s reasons for sentencing defendant to eighteen months to five years were that the crime happened "a long time ago” and that she believed defendant had "turned himself around.” However, neither factor is reflective of the seriousness of the crime involved or the criminal history of the offender, and neither factor is a legitimate sentencing concern under these circumstances. Had defendant been convicted and sentenced for these crimes at the time that they occurred, the trial court would not have had the opportunity to consider whether defendant had been living a life free of crime. The reasons given by the trial court effectively condone the defendant’s acts of evading arrest for a crime, escaping from confinement, and fleeing the state.

The trial court’s main reason for imposing a lenient sentence—that defendant "rehabilitated himself’—is not supported by the record. Defendant has an extensive criminal history consisting of seven prior felony convictions. In addition, defendant was on escape status at the time he was apprehended for the instant crimes, having walked away from a halfway house in June 1989. While at the halfway house, defendant had seven major misconduct violations and tested positive for marijuana use on four occasions. After escaping, defendant fled to Louisiana, where he lived until being arrested in February 1991. Thus, at most, defen*207dant lived twenty months without being involved in criminal activity.1

I am not suggesting that a defendant convicted as an habitual offender can never be sentenced below the minimum recommended guidelines’ range for the underlying offense. In this case, however, I believe that the facts do not support the trial court’s reasons for a sentence that, when compared with the guidelines for the underlying offenses, is a severe downward departure from the minimum recommended guidelines’ range. Thus, I would hold that defendant’s sentence is not proportionate to the offense or the offender and would vacate defendant’s sentence and remand for resentencing._

Although defendant was not convicted of any crimes during the time he was in Louisiana, given defendant’s rather extensive criminal history, one cannot infer as fact that defendant was living a crime-free lifestyle. One could just as legitimately infer that defendant was merely able to avoid "being caught.”