People v. Weaver

AFTER REMAND

Before: Weaver, P.J., and Hood and Gribbs, JJ. Weaver, P.J.

This is defendant’s second appeal as of right in this case. In a prior unpublished opinion per curiam, decided August 24, 1989, this Court related the factual circumstances, which we quote:

In this case, defendant kicked in the complainant’s apartment door. Defendant raped and sodomized the complainant at knifepoint and then demanded money. When the complainant emptied her piggy bank, defendant took the money and said it was not enough. He tied the complainant with a telephone cord, punched her in the stomach, tried to smother her with a pillow and choked her. In her struggle, the complainant managed to free one of her arms and she scratched defendant’s face. Defendant then stabbed her repeatedly in the chest and stomach. Defendant dragged the com*233plainant to the bathroom, pushed her into the bathtub and began cutting and stabbing her neck and head. He hit her over the head with a cast iron skillet with such force that the skillet broke. When defendant left the room, the complainant crawled upstairs to a neighbor and knocked on their door until they opened it.

Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), one count of armed robbery, MCL 750.529; MSA 28.797, and one count of assault with intent to murder, MCL 750.83; MSA 28.278. He was sentenced to 50 to 100 years’ imprisonment for each of the esc convictions, 20 to 40 years’ imprisonment for the armed robbery conviction, and 100 to 200 years’ imprisonment for the conviction of assault with intent to murder. He appealed as of right, and the Court of Appeals, Gribbs, P.J., and Murphy and Neff, JJ., affirmed in an unpublished opinion per curiam but remanded for resentencing consistent with the Supreme Court’s ruling in People v Moore, 432 Mich 311; 439 NW2d 684 (1989), with regard to the sentence for the conviction of assault with intent to murder. (Docket No. 110729). On remand, defendant was resentenced to 75 to 150 years’ imprisonment, with credit for 692 days served, for his conviction of assault with intent to commit murder. In the current appeal, defendant claims that his new sentence for the assault conviction violates the statutory rule announced in Moore, supra, hereafter Moore I.

Before determining whether the sentence does in fact violate Moore I, we note that defendant has not raised any challenge to the trial court’s exercise of discretion. The only question to be answered is whether the trial court on resentencing fashioned a sentence that defendant can reason*234ably be expected to serve and, therefore, that comports with statutory requirements as interpreted in Moore I. Compare People v Moore, 188 Mich App 244, 248; 469 NW2d 34 (1991), hereafter Moore II.

We reject defendant’s assertion that Moore I requires that both the minimum and maximum sentence be reasonably possible for a defendant actually to serve. Only the minimum sentence must satisfy this standard.

We also find no error in the trial court’s consideration of disciplinary credits in resolving this statutory issue. Regular disciplinary credits are an appropriate consideration. People v Rushlow, 437 Mich 149, 155; 468 NW2d 487 (1991). Because defendant was incarcerated after December 30, 1982, and assault with intent to commit murder is a Proposal B offense, the regular disciplinary credit to be considered in this case is five days each month. Rushlow, p 155, n 7, MCL 800.33; MSA 28.1403, and MCL 791.233b; MSA 28.2303(3).

Factually, the record shows that defendant was about thirty years old when first incarcerated in prison on July 8, 1988, with credit for 232 days served. This initial date of prison incarceration, rather than the date of resentencing, is the proper date for calculating the effect of disciplinary credits on defendant’s minimum sentence. Moore II, supra, p 249, n 1.

Therefore, computing defendant’s first possible parole date based upon defendant’s beginning to serve his prison sentence on July 8, 1988, we find that defendant will be in his early nineties when first eligible for parole. This places defendant at an age slightly higher than the defendant in Rush-low, supra, will be when first eligible for parole. The defendant in Rushlow, supra, will be eighty-seven years old when first eligible for parole. In *235approving the sentence in Rushlow, supra, p 156, our Supreme Court ruled:

Inasmuch as it is permissible to consider the possible effect of disciplinary credits, we agree with the Court of Appeals that the defendant’s 75-to 150-year sentence does not violate the principles set forth in Moore. The deficiencies that were present in Moore are not present here. The defendant has a reasonable prospect of actually serving his sentence. He has not been given an order that is impossible to obey.

Taking judicial notice of ever increasing life expectancies, People v Holland, 179 Mich App 184, 197; 445 NW2d 206 (1989), and applying the standards in Moore I, supra, and Rushlow, supra, we likewise find no statutory error in this case. We hold that, in imposing the sentence of 75 to 150 years at the resentencing hearing, the trial court fashioned a sentence that defendant has a reasonable prospect of actually serving. Accordingly, the sentence is affirmed.

Affirmed.

Gribbs, J., concurred.