Opinion
Docket No. 84403.
Decided May 21, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Assistant Prosecuting Attorney, for the people.
Ronald Kranz, for defendant on appeal.
Defendant pled guilty to perjury during a court proceeding for a capital offense. MCL 750.422; MSA 28.664. He was sentenced to a prison term of from six to twenty years. Defendant appeals as of right.
Defendant's perjury conviction arose out of his testimony during the retrial of Albert Keenum for first-degree murder. Pursuant to a plea bargain, defendant testified at Keenum's original trial that Keenum had hired him to kill Keenum's wife. In exchange for his testimony, defendant was permitted to plead guilty to second-degree murder. At the retrial of Keenum, defendant offered conflicting testimony, exculpating Keenum and himself. At the plea proceeding, defendant admitted that he had perjured himself but explained that he felt threatened and afraid to testify against Keenum.
The sole issue raised on appeal is whether defendant's six- to twenty-year sentence for perjury was excessive. Our review is limited to determining whether, in imposing the sentence, the lower court abused its discretion to the extent that it shocks our conscience. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983).
In order to aid the appellate court in making its determination, Coles requires the sentencing court to articulate on the record its reasons for imposing sentence. In this case, the court articulated the following considerations:
In determining this sentence for this particular defendant and this particular case, this Court has considered the disciplining or punishment of the wrongdoer, protection of society and potential for rehabilitation of this defendant and the deterring of others from committing like offenses. The Court has to place great weight on the factor of deterring others from committing like offenses.
These are the same criteria which were recommended for use by the Supreme Court in Coles and we find nothing improper in their use in the present case.
Defendant also suggests that the court enhanced the defendant's sentence for the perjury conviction in order to compensate for his sentence in the underlying murder conviction. This claim is unsubstantiated by either defendant's brief or the record.
Defendant next claims that his sentence was excessive in light of the circumstances surrounding his perjury. Defendant asserts that, as an inmate at Jackson Prison, he feared the consequences of being labeled a "snitch" and committed perjury only to protect himself. However, defendant admitted at the plea proceedings that he did not have an immediate fear of bodily harm, that he was aware that other options, aside from perjury, existed and that he chose not to exercise his other options. While we recognize the reality of defendant's fears, we cannot overlook the fact that defendant played a key role in a murder trial and admittedly elected to lie "about the whole thing." In light of the severity of the offense, we are not persuaded that defendant's sentence was unduly excessive.
Defendant's remaining issues, selective prosecution and right to counsel during the retrial, are not relevant to the sentencing issue and are not properly submitted for our consideration.
Affirmed.