Opinion
Docket No. 88614.
Decided July 8, 1986. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow, for defendant.
On August 21, 1985, defendant entered a plea of nolo contendere to a charge of manslaughter, MCL 750.321; MSA 28.553. The factual basis for the plea was derived from the preliminary examination transcript. Witnesses testified that defendant was traveling east in the westbound lane of I-696 when he struck another vehicle, resulting in the death of its driver. There was further testimony indicating that defendant was extremely intoxicated. On September 18, 1985, defendant was sentenced to imprisonment for a term of from five to fifteen years. Defendant appeals from his sentence as of right.
Defendant maintains that the sentencing judge failed to articulate reasons for imposing the sentence, as required by People v Coles, 417 Mich. 523, 550; 339 N.W.2d 440 (1983). The judge merely inquired whether defendant had a prior conviction for driving under the influence of alcohol and, after receiving an affirmative response, stated:
Sir, this isn't easy for me to do. But, sir, it is the sentence of this court that based upon the file and the seriousness and the circumstances in this particular matter, I'm sentencing you to the custody of the Department of Corrections for a minimum period of time of five years and a maximum period of fifteen.
The prosecutor argues that this was a sufficient articulation of reasons, maintaining that it is apparent that the judge based the sentence on the interrelation between this crime and defendant's prior driving record. From these facts, the prosecutor deduces that the judge's reasons for imposing sentence were society's need for protection and the necessity that defendant be disciplined. We do not find that the judge's reason for imposing sentence can be so neatly inferred from the record. Although these reasons may have existed in the back of the judge's mind, Coles requires that they be stated on the record.
The prosecutor argues, in the alternative, that Coles did not contemplate the continued requirement of articulated reasons after institution of the Sentencing Guidelines. Since defendant's sentence was within the guidelines recommended minimum range of two to six years, the prosecutor maintains that the factors considered by the guidelines provide the reasons for imposing sentence, and that a recitation of reasons would be a redundant exercise.
In essence, the prosecutor is urging this panel to adopt the reasoning of People v Murray, 147 Mich. App. 227, 232; 383 N.W.2d 613 (1985), in which a panel of this Court held that a sentencing judge complied with Coles where he stated simply that he was "sentencing defendant pursuant to the sentencing guidelines." However, we believe that People v Broden, 147 Mich. App. 470, 473-474; 382 N.W.2d 799 (1985), which requires articulation of reasons despite adherence to the sentencing guidelines, is a better reasoned opinion. In Broden, the Court held that Coles required more than a mere reference to the guidelines for three reasons: (1) without a statement of reasons, this Court would be unable to determine whether the Coles criteria for imposing sentence had been followed; (2) adherence to the guidelines would provide no indication as to why a particular maximum sentence was selected; and (3) dispensing with the need for reasons would subvert a current goal of the guidelines which is to subject them to ongoing evaluation while they are still in the experimental stage. For these reasons, we believe that this case must be remanded to the trial court so that the sentencing judge may have an opportunity to articulate his reasons for imposing the sentence rendered in this case.
In accord with Administrative Order No 1984-2, 418 Mich. lxxxii, this Court has issued an order certifying a conflict between Murray, supra, and Broden, supra.
Defendant also asserts that the minimum guidelines range of two to six years was erroneously calculated, claiming that the sentencing judge improperly scored Offense Variable 6. Since there was no objection to the scoring at sentencing, this issue has not been preserved for appellate review. See People v Kennie, 147 Mich. App. 222, 226; 383 N.W.2d 169 (1985). In any event, we find that the facts as adduced at the preliminary examination support the judge's scoring of OV 6 and, therefore, we find no error.
Defendant was given a score of two for OV 6, indicating that there were three or more victims of this crime. Defendant argues that, at best, there were only two victims, the decedent and a passenger in the decedent's automobile. Our review of the record discloses that there were no passengers in the decedent's automobile. However, at the preliminary examination, one witness testified that there were two passengers in defendant's automobile while another witness testified that there were three passengers. The definition of victim for OV 6 is a "person who was placed in danger of injury or loss of life." While this definition cannot be construed so as to include defendant as a victim of his own crime, see People v Love, 144 Mich. App. 374, 377; 375 N.W.2d 752 (1985), we believe that it could properly be applied so as to include the passengers in defendant's automobile. Accordingly, we hold that there was no error in the scoring of this offense variable.
Finally, defendant maintains that the sentencing judge should have provided reasons for departing from an Oakland County Sentencing Panel recommendation. See People v Mills, 145 Mich. App. 126; 377 N.W.2d 361 (1985) (holding that the sentencing panel's recommendation must be disclosed to the defendant prior to sentencing). The sentencing panel apparently suggested that defendant be sentenced to a term of from three to fifteen years. Defendant argues that since the purpose of the sentencing panel is to minimize sentence disparities within Oakland County, similar to the guidelines' purpose of minimizing disparity in sentences throughout the state, reasons for deviating from the panel's recommendation should be required. However, defendant has not indicated how requiring a statement of reasons for departure from the Oakland County panel's recommendation will minimize sentence disparities. In the absence of some compelling reason to impose such a requirement, we decline to hold that a judge must provide reasons for departing from the recommendations of Oakland County Sentencing Panels.
Remanded for proceedings consistent with this opinion.
I respectfully dissent. I believe the trial court met its Coles burden. In People v Coles, 417 Mich. 523, 550; 339 N.W.2d 440 (1983), the Court said:
This Court noted in People v Snow, 386 Mich. 586, 592; 194 N.W.2d 314 (1972), that the proper criteria for determining an appropriate sentence include: (1) the disciplining of the wrongdoer, (2) the protection of society, (3) the potential for reformation of the offender, and (4) the deterring of others from committing like offenses. This list is not exhaustive, and we do not purport to instruct the trial courts on every criterion which they must consider when imposing a sentence. However, we do now require that the trial court state on the record which criteria were considered and what reasons support the court's decision regarding the length and nature of punishment imposed.
At the time of sentencing, the trial court stated:
The Court: The thing that bothers me more than anything else in this matter, sir, is that — it was 1981 wasn't it when you started having problems with alcohol? You continued — and you drove and had that problem?Mr. Latzman: Could you repeat that please?
The Court: You've been convicted of driving under the influence before, haven't you sir?
Mr. Latzman: Yes, I was. When I first received my license at the age of sixteen.
The Court: Sir, this isn't easy for me to do. But, sir, it is the sentence of this court that based upon the file and the seriousness and the circumstances in this particular matter, I'm sentencing you to the custody of the Department of Corrections for a minimum period of time of five years and a maximum period of fifteen. Do you understand that, sir?
Thus, either directly or by an obvious and clear inference, the sentencing court:
a) disciplined the defendant;
b) protected society;
c) hoped to reform the offender;
d) deterred others from committing like offenses.
Coles does not require the sentencing court to give a lengthy and detailed explanation for every sentence. What Coles does require is that a reason be given for the sentence and that the court must take into account the individual being sentenced. The trial court did that.
I would affirm.