PEOPLE
v.
LANDIS
Docket No. 77855.
Michigan Court of Appeals.
Decided October 29, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael R. Smith, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, Department of Attorney General, Prosecuting Attorneys Appellate Service, for the people.
Robert W. Blackstock, for defendant on appeal.
*122 Before: DANHOF, C.J., and M.J. KELLY and N.J. KAUFMAN,[*] JJ.
PER CURIAM.
Defendant was charged and arraigned in circuit court on two counts of forgery, MCL 750.248; MSA 28.445, and two counts of uttering and publishing, MCL 750.249; MSA 28.446, and was given notice of the prosecutor's intent to file a supplemental information charging him as an habitual offender. Pursuant to a plea bargain, defendant pled guilty to one of the uttering and publishing counts and to the charge of being a second offender in return for dismissal of the other three counts and the charge of being a fourth time habitual criminal. Defendant was then sentenced to 7 to 14 years for uttering and publishing and 12 to 21 years as an habitual criminal. He appeals as of right, claiming that the trial court abused its discretion in imposing a sentence that shocks the conscience.
At the sentencing hearing, defendant and defense counsel stated that they had reviewed the presentence report, and defense counsel allocuted on defendant's behalf. The trial judge reviewed defendant's prior criminal record, which indicated that defendant has been in constant difficulty with the law since he was 18 years of age, including an attempted breaking and entering, a probation violation, joyriding, two attempted larcenies, and an assault and battery. The court noted that defendant is now aged 23 and unemployed.
Uttering and publishing is punishable by up to 14 years' imprisonment.
Under the circumstances, we cannot say that the sentence was cruel and unusual under either the United States or Michigan Constitution. After reading the presentence report, we cannot say the *123 sentence shocks our conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). If anything, the sentence prescribed by the statute for uttering and publishing seems harsh; however, that is a question for the Legislature, not us.
Affirmed.
M.J. KELLY, J. (dissenting).
I respectfully dissent.
The 12- to 21-year sentence imposed here for the defendant's commission of a nonviolent crime disturbs me. I cannot say unequivocally that it shocks my conscience, but I also do not know how sensitive, informed and rational my conscience is in comparing sentences imposed by trial courts to an "ideal penalty", whatever that is.
The Supreme Court in People v Coles, 417 Mich 523, 542-543; 339 NW2d 440 (1983), said that an "excessively severe sentence is one which far exceeds what all reasonable persons would perceive to be an appropriate social response to the crime committed and the criminal who committed it". It seems to me that the sentence imposed here is one which exceeds what a reasonably informed person functioning in the Michigan criminal justice system would perceive to be proportional. I am willing to opine that a conviction for presenting a bad check for payment enhanced by an earlier attempted breaking and entering conviction does not merit sentencing on the habitual charge of from 12 to 21 years in prison. I admit to foundering in a quagmire of conflicting considerations but, without a showing that defendant has violent propensities, I am expressing a conscience, though rendered insipid from overexposure to multitudes of lesser penalties for violent and heinous crimes, and confessing shock at the severity of the sentence in this case.
I would remand for resentencing.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.