PEOPLE
v.
WEAVER
Docket No. 124373.
Michigan Court of Appeals.
Decided December 16, 1991, at 9:25 A.M.Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Robert A. Radnick, Assistant Prosecuting Attorney, for the people.
Paul M. Stoychoff, for the defendant on appeal.
Before: WEAVER, P.J., and HOOD and GRIBBS, JJ.
AFTER REMAND
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 In a prior unpublished opinion per curiam, decided August 24, 1989, this Court related the factual circumstances, which we quote: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 complainant *233 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 CSC 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 He appealed as of right, and the Court of Appeals, GRIBBS, P.J., and MURPHY and NEFF, JJ., affirmed in an unpublished opinion per curiam but remanded for resentencing consistent with the Supreme Court's ruling in People v Moore, 432 Mich. 311; 439 NW2d 684 (1989), with regard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 reasonably *234 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 Rushlow, 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 *235 approving 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.
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 *236 life 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 *237 defendant 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 expectancies, *238 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 *239 a 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.
NOTES
[1] 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 24.1834 indicates that a thirty-year-old male has a life expectancy of 41.25 years.
[2] No documentation whatsoever has been presented to indicate to what age prisoners may reasonably be expected to live.