People v. Weaver

Hood, J.

(concurring in part and dissenting in part). I must respectfully dissent from that portion of the majority opinion that concludes that this is a sentence that the defendant can reasonably be expected to serve. This appears to be yet another case in which a trial court, with this Court’s approval, seems determined to ascertain the limits to which our Supreme Court’s ruling in People v Moore, 432 Mich 311; 439 NW2d 684 (1989), hereafter Moore I, can be. pushed without risk of reversal. The trial court quite clearly sought to sentence defendant in this case to nonparolable *236life imprisonment, and it stated at the sentencing hearing that "no society should have a fear or worry about (defendant) ever again.” I in no way condone the bestial and inhumane behavior so graphically set forth in the majority opinion. I am nonetheless convinced that the result reached in this case pushes us beyond the pale of reason into the lap of ludicrousness.

The majority opinion in Moore I, supra, p 329, concluded:

For the reasons stated earlier in this opinion, we hold that a "term of years” must be an indeterminate sentence less than life. It must be something that is reasonably possible for a defendant actually to serve.
We decline, however, to adopt either a rigid cap on indeterminate sentences or a rule that a trial court must make a factual determination of a particular defendant’s actual life expectancy. Otherwise, the trial court would not only find itself evaluating a defendant’s actual state of health, but would find itself reviewing the life expectancies of demographic subgroups, family health histories, and behavioral risks of acquiring certain illnesses, such as cancer and heart disease.
Instead, we simply direct the trial court to fashion a sentence that a defendant in his mid- to late-thirties has a reasonable prospect of actually serving.”

Defendant in this case was born in May of 1958 and was thirty years of age at the time of sentencing. Although the trial court made no specific findings regarding when defendant would be eligible for parole if the effect of disciplinary credits is considered, computation of the effect of regular disciplinary credit for defendant’s Proposal B conviction, commencing when defendant was first incarcerated in prison in July of 1988, indicates that *237defendant will not be eligible for parole until he is in his nineties. See People v Moore, 188 Mich App 244; 469 NW2d 34 (1991), hereafter Moore II.

The "longest” sentence approved by published case law has been a sentence allowing the defendant to be eligible for parole at the age of eighty-seven. People v Rushlow, 437 Mich 149; 468 NW2d 487 (1991); Moore II, supra. As "guidance” on this statutory issue, the trial court in this case gave some consideration to our Supreme Court’s denial of an application for leave to appeal or other relief in People v Prong, unpublished opinion per curiam of the Court of Appeals, decided September 28, 1988 (Docket No. 104568), lv den 433 Mich 860 (1989). This is an unacceptable approach, because a decision to deny leave to appeal has no precedential value, Clink v Steiner, 162 Mich App 551, 556; 413 NW2d 45 (1987).

The trial court’s analysis simply provides no basis for upholding the statutory validity of the sentence. And neither the arguments presented nor case law prove any real guidance in resolving this issue.

As noted in Justice Levin’s separate opinion in Rushlow, supra, pp 158-159, "[n]either the Court of Appeals nor the majority in this Court states on what basis it has been concluded that it is reasonably possible for Rushlow to live to the age of eighty-seven years.” Similarly, no basis is presented here for the conclusion that defendant can survive into his nineties. Other cases have approved the use of standard mortality tables, People v Hopson, 178 Mich App 406, 415; 444 NW2d 167 (1989)1 or judicially noticed increasing life expec*238tancies, People v Holland, 179 Mich App 184; 445 NW2d 206 (1989). The panel in Holland, p 197, stated, “We, however, do take judicial notice that, with ever increasing life expectancies, many citizens of our state live to the age of eighty-three and beyond.”

Although the evidentiary rules do not apply to sentencing proceedings, MRE 1101, the rule governing the judicial notice of adjudicative facts, MRE 201, provides the requisite guidance regarding when it is appropriate to take judicial notice of facts. Under MRE 201(b), the facts must not be subject to reasonable dispute. Aside from speculation, there is no basis for a conclusion that prisoners in this state do in fact live well into their nineties. Neither Rushlow nor Moore I can be read as eliminating the requirement that the minimum sentence be one that the defendant has a reasonable prospect of actually serving. I am unaware of any facts from which it can be inferred that a person of defendant’s age has a reasonable prospect of actually serving his sentence. It is one thing to say that there are citizens of this state who live into their nineties. It is quite another to quantify that number, by judicial notice, so as to reasonably conclude that someone of defendant’s age has a reasonable prospect of actually serving a minimum sentence into his nineties.2

Thus, while Moore I, supra, is clear in its directive that it does not establish a rigid age cap with regard to the minimum sentence, I conclude that a consideration of the existing record, combined with the parties’ arguments on appeal, provides only speculation on the question whether defendant has *239a reasonable prospect of actually serving his minimum sentence. Given the lack of any basis, in fact or case law, to establish the statutory validity of defendant’s sentence, I would rule that defendant must again be resentenced.

The United States National Center of Health Statistics, 1986, indicates that a thirty-year-old black male has a life expectancy of 38.5 years, and a white male of the same age a life expectancy of 44.2 years. The Michigan statutory mortality tables, MCL 500.834; MSA *23824.1834 indicates that a thirty-year-old male has a life expectancy of 41.25 years.

No documentation whatsoever has been presented to indicate to what age prisoners may reasonably be expected to live.