Opinion
Docket No. 94446.
Decided July 21, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, for the people.
Elizabeth L. Jacobs, for defendant.
Before: J.H. GILLIS, P.J., and BEASLEY and SAWYER, JJ.
Defendant, Ronnie Richardson, pled guilty to armed robbery, contrary to MCL 750.529; MSA 28.797. Defendant was sentenced to serve not less than nine nor more than twenty years in prison. He now appeals as of right, raising two issues.
Defendant claims that the trial court abused its discretion in sentencing him in three ways: first, that the sentence contravened the individualized sentencing policy of the state; second, that defendant was sentenced on the basis of inaccurate guidelines; and third, that his sentence was of a severity that should shock the judicial conscience. These claims are without merit.
The claim that the sentence was not individualized and the claim that the sentence was based upon an inaccurate scoring of the guidelines fall within the same category: that is, an attack upon the scoring and application of the guidelines. On appeal, we first look to the standard of appellate review to be applied with respect to the guidelines. In People v Clark, we pointed out that the standard for review was carefully set forth in the recommendations of the committee and expressly provided for "a very limited review" of sentences in the Court of Appeals. The Sentence Review Committee specifically dealt with this subject, saying:
147 Mich. App. 237; 382 N.W.2d 759 (1985), lv den 425 Mich. 858 (1986).
Thought must also be given to the question of how to respond when the parties request the Court of Appeals to review the scoring decisions which the trial court must make to arrive at the guideline sentence. The committee believes that it is absolutely crucial that the Court of Appeals never get bogged down in a close review of these many scoring decisions. The committee therefore believes very strongly that the underlying factual findings which the sentencing judge may have to make must be upheld if there is any evidence to support them.[]
Sentence Review Committee Report and Recommendation, p 30 (July, 1982).
Thus, it is altogether clear that we should not substitute our judgment for that of the trial judge in determining the appropriateness of reasons given for deviation from the guidelines. As we continue along the path of appellate review of sentences, it is important that we not depart from the commendable objectives that gave rise to appellate review of sentences and stray into a bureaucratic morass that reduces the flesh and blood aspect of a prison sentence into a kind of paper shuffling.
Clark, supra, p 242; Sentence Review Committee Report and Recommendation, pp 29-30 (July, 1982).
In the within case, the trial judge made clear the way that he computed the guideline factors and his reasons for the procedure that he followed. Review of that procedure does not lead to any shocking of the judicial conscience, and, after all, the essential test of whether the judicial conscience is shocked remains. Furthermore, in this case, defendant did not file in the trial court a motion subsequent to sentencing to test his claim that the guidelines were improperly calculated. Failure to file such a motion in the trial court precludes review on appeal of this type of issue.
People v Walker, 428 Mich. 261; 407 N.W.2d 367 (1987).
In sentencing defendant, the trial court explained its reason for exceeding the guidelines, pointing out, among other things, that at the time of this offense defendant was on probation for unarmed robbery. We are satisfied that the explanation was adequate, and our judicial conscience is not shocked by the sentence that was imposed.
People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983).
Defendant also claims on appeal that he was denied effective assistance of counsel, apparently for the reason that his attorney allegedly did not sufficiently object to the offense variable level arrived at by the trial court. We do not agree. Defendant's failures to convince on appeal are not caused by defects in defendant's representation in the trial court. We find this claim to be without merit.
Affirmed.