People v. Rushlow

Maher, J.

(concurring in part and dissenting in part). I concur with the majority’s affirmance of *182defendant’s conviction but write separately to express my belief that there no longer exists a split among panels of this Court as to the degree of specificity required of a trial court’s factual findings under MCR 2.517(A). I believe that the standard espoused in People v Davis, 126 Mich App 66, 70-71; 337 NW2d 315 (1983), having been abandoned by all three members of that panel (myself included), is without controlling effect or precedential value. Instead, the only standard which remains viable is that which was first set forth in People v Taylor, 133 Mich App 762, 766; 350 NW2d 318 (1984), rev’d and remanded on other grounds 422 Mich 554; 375 NW2d 1 (1985), and which has been consistently followed by subsequent panels of this Court. See People v Armstrong, 175 Mich App 181, 185, n 1; 437 NW2d 343 (1989).

I respectfully dissent, however, from that portion of the majority opinion pertaining to the sentencing issue. I believe the majority, by considering the effect of defendant’s potential disciplinary credits in determining whether it is reasonably possible for him to actually serve his sentence, has violated the spirit — although perhaps not the letter — of People v Moore, 432 Mich 311; 439 NW2d 684 (1989), and People v Fleming, 428 Mich 408; 410 NW2d 266 (1987). Unpopular as those decisions may be to certain members of the legal profession and the public in general, it is not the place of this Court to read them so strictly as to avoid their clear intent and purpose. In my mind, Moore and Fleming, taken together, stand for the proposition that disciplinary credits may not be considered in determining whether it is reasonably possible for a defendant to actually serve his or her sentence.

By considering the instant defendant’s potential *183good time credits, the majority has effectively accomplished that which the trial court could not do in the first instance, i.e., impose a minimum sentence of seventy-five years imprisonment on defendant.1 There is no dispute that a full seventy-five-year term of imprisonment would exceed defendant’s life expectancy and, thus, violate the holding in Moore. Moore is satisfied only if one first takes into account the effect of defendant’s potential disciplinary credits.2 However, Fleming clearly prohibits such a consideration by the trial court. Either way then (i.e., considering the effect of disciplinary credits or not considering the effect of such credits), the trial court could not have imposed a minimum sentence of seventy-five years imprisonment on defendant. It seems anomalous that a trial court cannot consider the effect of disciplinary credits in exercising its sentencing discretion but that this Court may consider such credits in determining whether there has been an abuse of that discretion. I would vacate defendant’s sentence and remand for resentencing._

As noted in the majority opinion, the Supreme Court is unclear as to whether the Moore holding applies to the minimum sentence or the maximum sentence. I believe that it applies to the former.

I will assume, without deciding, that defendant could live to be eighty-six years of age and that he could therefore be reasonably expected to actually serve his minimum sentence less disciplinary credits (i.e., sixty years, nine months and seven days according to defendant’s appellate brief).