Opinion
Docket No. 125285.
Decided July 23, 1991, at 9:05 A.M. Leave to appeal sought.
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 Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
Michael C. Hidalgo, for the defendant on appeal.
Before: MICHAEL J. KELLY, P.J., and MURPHY and NEFF, JJ.
MICHAEL J. KELLY, P.J., concurring, stated that although People v Rushlow, 437 Mich. 149 (1991), compels affirmance in this case, Rushlow cannot be reconciled with Moore and should be revised.
Following a bench trial, defendant was convicted of one count of second-degree murder, MCL 750.317; MSA 28.549, four counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279. For the murder and criminal sexual conduct convictions, defendant was sentenced to forty-five to ninety years in prison, and for the assault conviction, he was sentenced to six to ten years in prison. Defendant appeals by leave granted, and we affirm.
Defendant first argues that the evidence supports only convictions of third-degree criminal sexual conduct with respect to two of the four sexual conduct convictions. We disagree and find that the record supports a reasonable inference that defendant was armed with a weapon during each of the four sexual assaults.
Defendant's second claim is that his sentence exceeds his life expectancy. Defendant was forty years old at the time of sentencing. We, however, do not find defendant's forty-five-year minimum sentence to be violative of the principles set forth in People v Moore, 432 Mich. 311; 439 N.W.2d 684 (1989). See People v Rushlow, 437 Mich. 149; 468 N.W.2d 487 (1991).
Affirmed.
I concur because I am compelled to by the Supreme Court's decision in People v Rushlow, 437 Mich. 149; 468 N.W.2d 487 (1991). However, Court of Appeals opinions as well as Supreme Court opinions that have postulated extreme longevity for imprisoned defendants have done so intuitively and are very likely to be wrong. (Given our ignorance of the vital statistics, I suggest that ripe old age is the least plausible assumption.) Believing that Rushlow cannot be reconciled with People v Moore, 432 Mich. 311; 439 N.W.2d 684 (1989), see People v Mayfield, 182 Mich. App. 282; 451 N.W.2d 583 (1990), revisitation and revision of Rushlow is anticipated. Hopefully.