(dissenting). I respectfully dissent.
*39On August 29, 1985, defendants robbed and murdered Paul Hutchins, an off-duty Michigan State Police trooper. They were convicted of second-degree murder, MCL 750.317; MSA 28.549, and armed robbery, MCL 750.529; MSA 28.797. In the decade after these convictions, this case has developed a complex procedural history. I review this history because, in my view, it is essential to the resolution of this appeal.
Defendants were originally sentenced to terms of 150 to 300 years’ imprisonment for their murder convictions and to terms of 30 to 60 years’ imprisonment for their armed robbery convictions. In defendants’ original appeal, this Court affirmed their convictions, but remanded for resentencing with regard to the murder convictions on the ground that their 150-year minimum sentences violated People v Moore, 432 Mich 311; 439 NW2d 684 (1989).1 People v Frazier, unpublished opinion per curiam of the Court of Appeals, issued March 8, 1990 (Docket Nos. 102749, 102920, 104683).2 On remand, the trial court resentenced defendants to terms of 65 to 150 years’ impris*40eminent. Defendants appealed, and this Court again remanded for resentencing:
After reviewing the record in this matter, considering the nature of the offense and the background of the offenders, we believe that the trial court abused its discretion in imposing the 65- to 150-year sentences. Although child assassins now regularly appear in our courts, there is no question that this was an outrageous offense and that a most severe sentence was warranted. Had the sentences been life sentences we would have affirmed posthaste, unanimously. Although a departure was appropriate for each, the extent of the departure was Draconian. The guidelines, recognizing different degrees of culpability, differed for each defendant. Under these sentences, three generations will have come and gone before the effects of defendants’ punishments are assessed and the rehabilitative effects, if any, are considered. Cf. People v Rushlow, 437 Mich 149; 468 NW2d 487 (1991). The trial court abused its discretion in imposing these sentences. [People v Phillips (On Rehearing), 203 Mich App 287, 291; 512 NW2d 62 (1994).]
We ordered resentencing before a different judge in order to preserve the appearance of justice. Id. at 292. The prosecutor applied for leave to appeal, which our Supreme Court denied. People v Phillips No 1, 450 Mich 851 (1995). On second remand, the trial court resentenced defendants to 65 to 150 years’ imprisonment, the exact same sentence that we had previously held was disproportionate. Defendants then filed the current appeals.
The primary issue in all three appeals is whether each defendant’s sentence is proportionate. I believe resolution of this issue is governed by the law of the case doctrine. “Under the law of the case doctrine, an appellate court’s determination of law will not be differently decided on a subsequent appeal in the same *41case if the facts remain materially the same.” People v Kozyra, 219 Mich App 422, 433; 556 NW2d 512 (1996). Here, the panel in Phillips (On Rehearing), in a two-to-one decision, determined that defendants’ 65- to 150-year sentences were not proportionate. 203 Mich App 291. Under the law of the case doctrine, the only way these previously disproportionate sentences could become proportionate is if the circumstances surrounding the offenders had changed between the first and second resentencing. In this case, the trial court did not point to any such change, and I find no evidence of such a change in the record.
The majority asserts that defendants Phillips’ and Frazier’s prison records did not remain materially the same between the first and the second resentencing. I disagree. While both Phillips and Frazier were cited for prison misconduct between the first and the second resentencing, their misconduct did not materially alter the facts presented at the first resentencing; Phillips and Frazier had both already been cited for prison misconduct on numerous occasions before the first resentencing, and their behavior had neither worsened nor improved.3 Thus, I would conclude that the facts now before this Court are materially the same as those before us when Phillips (On Rehearing) was decided. Under the law of the case doctrine, defendants’ 65- to 150-year sentences are still disproportionate.
*42While the majority admits that the law of the case doctrine would apply to defendant Robinson, they still decline to follow it, reasoning that (1) “it is clear that the Supreme Court would affirm the present sentences,” (2) since we decided Phillips (On Rehearing), “the applicable legal principles of sentence review have been substantially altered,” and (3) remanding for resentencing in accordance with Phillips (On Rehearing) would “work an injustice.” Ante, pp 34-35. I am not persuaded.
First, whether the Supreme Court would affirm defendants’ sentences is an open question. Indeed, the Supreme Court had the opportunity to reverse our previous decision, and declined. People v Phillips No 1, 450 Mich 851 (1995) (denying leave to appeal). In any event, speculation regarding the Supreme Court’s likely disposition is simply inappropriate; the parties will have an opportunity to apply for leave to. appeal, and the Supreme Court can render its own. decision.
Second, the applicable law has not changed since we last reviewed this case. The applicable standard under Milboum4 remains the same. The fact that the Supreme Court has found few sentences disproportionate since Milboum is irrelevant. Milboum was decided in 1990, Phillips (On Rehearing) was decided in 1994. Put simply, it was already clear in 1994 that few sentences would be found disproportionate. In addition, the Supreme Court had the opportunity to review this case after People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994), but denied leave.5 In my opinion, there has been little *43change in the law since we decided Phillips (On Rehearing), and none since the Supreme Court denied leave in Phillips No 1.
This brings me to my primary concern in this case. The majority concludes that it would “work an injustice” to remand this case for resentencing. This conclusion is premised on the majority’s belief that the sentences in this case are proportionate. I do not question the sincerity of that belief. In my experience, proportionality can never be pinned down, and judges will often disagree whether a given sentence is proportionate and, thus, will disagree whether that sentence constitutes an abuse of discretion. The problem in this case is that another panel of this Court has already reviewed the proportionality of these sentences. That panel found them disproportionate, and remanded for resentencing. The prosecution sought leave to appeal, and the Supreme Court denied its request. The majority simply disagrees with the prior panel’s conclusion. I find no authority authorizing the majority’s refusal to recognize the prior opinion in this case.
In my view, a final decision of one panel of this Court should not be subject to reconsideration by another panel. Indeed, allowing such review leaves every decision open to attack indefinitely. Preventing such uncertainty is precisely the purpose of the law of the case doctrine. Indeed, the Supreme Court has recognized the need for consistency in our opinions *44and requires us to follow our own prior published decisions issued on or after November 1, 1990. MCR 7.215(H)(1).6 I believe that, because the facts surrounding defendants and their crimes have not changed, this Court is bound by the decision in Phillips (On Rehearing).
Under these circumstances, I would remand for resentencing for the reasons stated in Phillips (On Rehearing). The trial court should have considered each defendant individually. Defendants have different backgrounds, which is reflected in different Prior Record Variable scores for each of them and in a different guidelines’ range for defendant Robinson. These differences did not necessarily require different sentences, but the trial court should have taken them into consideration. While the panel in Phillips (On Rehearing) already approved a departure for each defendant, Phillips (On Rehearing), 203 Mich App 291, the trial court should have explained the extent of its departure from each defendant’s guidelines’ range.
Defendant Frazier argues that we should remand for resentencing before a different judge. In order to preserve the appearance of justice, I would be compelled to agree. See People v Evans, 156 Mich App 68, 72-73; 401 NW2d 312 (1986).
I would vacate defendants’ sentences for their second-degree murder convictions and remanded for resentencing before a different judge.
Moore required a trial court to “fashion a sentence that a defendant . . . has a reasonable prospect of actually serving.” Moore, supra at 329. As the majority properly notes, Moore is no longer good law.
At this point, this case began an appellate track that is unrelated to the sentencing issues in the current appeals: After our decision affirming defendants’ convictions, defendants applied for leave to appeal. In lieu of granting leave, the Michigan Supreme Court remanded to this Court for reconsideration. People v Robinson, 439 Mich 896 (1991); People v Frazier, 439 Mich 896 (1991); People v Phillips, 439 Mich 897 (1991). On remand, we reversed defendants’ convictions. People v Frazier (On Remand), unpublished opinion per curiam of the Court of Appeals, issued July 16, 1992 (Docket Nos. 147931, 147932, 147934). The Supreme Court then granted leave to appeal and reinstated defendants’ convictions. People v Frazier (After Remand), 446 Mich 539; 521 NW2d 291 (1994). Thus, all issues regarding defendants’ convictions have been resolved and are not at issue in the instant appeals.
Phillips’ presentence investigation report indicates that he “still seems to have a pattern of misconduct that has remained consistent throughout his incarceration.” Frazier’s presentence investigation report indicates that he “incurred (7) major misconducts including one (1) Assault and Battery” during his first two years of incarceration, and four major misconducts, including another assault and battery, over the next six years.
People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
The Supreme Court in an unpublished order entered December 6, 1994 (Docket Nos. 99708-99710), originally held leave in abeyance specifi*43cally to await the outcome of Merriweather, supra, and People v Houston, 448 Mich 312; 532 NW2d 508 (1995). People v Phillips, 527 NW2d 512; 1994 Mich LEXIS 2818 (1994). As noted above, the Supreme Court proceeded to deny leave in this case after those cases were decided. People v Phillips No 1, 450 Mich 851 (1995).
Indeed, where the facts in this case are unchanged, the majority’s refusal to follow Phillips (On Rehearing) could be viewed as a violation of this court rule.