Not overruled or negatively treated on appealinfoCoverage
Michigan Court of AppealsNov 3, 1995
214 Mich. App. 211 (Mich. Ct. App. 1995)
214 Mich. App. 211542 N.W.2d 605

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Docket No. 179102.

Submitted October 18, 1995, at Detroit.

Decided November 3, 1995, at 9:05 A.M.

In lieu of granting leave to appeal, the Court of Appeals judgment is vacated, and the case is remanded to the Court of Appeals, 450 Mich ___.

State Appellate Defender (by Deborah Winfrey Keene), for the defendant on appeal.

Before: BANDSTRA, P.J., and CAVANAGH and H.A. BEACH, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


Defendant pleaded guilty to armed robbery, MCL 750.529; MSA 28.797, and to being a second-offense habitual offender, MCL 769.10; MSA 28.1082. He was sentenced to ten to thirty years' imprisonment and now appeals as of right. We remand.

Defendant argues that he is entitled to resentencing because of two alleged scoring errors that occurred in determining the guidelines' range for his armed robbery conviction. In light of our Supreme Court's recent opinion in People v Cervantes, 448 Mich. 620; 532 N.W.2d 831 (1995), we must first determine whether the sentencing guidelines are still pertinent in determining an habitual offender's sentence. Six of the justices in Cervantes stated, in conformity with past precedent, that the sentencing guidelines do not strictly apply to habitual offenders. Id. at 625, 630, 634. However, while three justices (RILEY, MALLETT, and WEAVER, JJ.) would give absolutely no consideration to the guidelines' ranges when sentencing an habitual offender, id. at 625-626, three other justices (CAVANAGH, LEVIN, JJ., and BRICKLEY, C.J.) opined that the guidelines are a useful tool or starting point in determining whether an habitual offender's sentence is proportionate, id. at 634. Using the guidelines as a starting point or as a useful tool in sentencing habitual offenders is consistent with past practice in Michigan. See, e.g., People v Martinez (After Remand), 210 Mich. App. 199, 201; 532 N.W.2d 863 (1995); People v Derbeck, 202 Mich. App. 443, 446; 509 N.W.2d 534 (1993). Justice BOYLE expressed no opinion in Cervantes regarding the guidelines and their usefulness in determining habitual offenders' sentences. Thus, the Cervantes opinion does not present a majority opinion concerning this issue. We are bound to follow past precedent and will continue to use the guidelines as a starting point and useful tool in determining whether an habitual offender's sentence is proportionate.

Defendant argues that the trial court incorrectly scored Offense Variable (ov) 9. Ov 9 is to be scored as ten points when a defendant is a leader in a multiple offender situation. The instructions state that the entire criminal episode should be taken into account in determining whether the offender is a leader. In this case, defendant testified that he was the person who grabbed the victim, stuck a knife to the victim's throat, and took the victim's wallet. Moreover, defendant testified that the other codefendant (defendant's brother) did not know that defendant was going to rob the victim. On the basis of these facts, we conclude that sufficient evidence existed on the record to support the score of ten points for ov 9. People v Johnson, 202 Mich. App. 281, 289-290; 508 N.W.2d 509 (1993).

Defendant also challenges the scoring of Prior Record Variable (PRV) 7. PRV 7 is scored as twenty points when a defendant has two or more subsequent or concurrent felony convictions and as ten points when a defendant has one subsequent or concurrent felony conviction. Because it appears from the record that defendant had only one subsequent or concurrent felony conviction (unarmed robbery), he should have been assessed only ten points for PRV 7. There was no evidence to support a score of twenty for PRV 7. See Johnson, supra at 288. Because the scoring of PRV 7 decreases the prior record level from category D to C and also decreases the guidelines' range from five to twenty-five years to three to eight years, we remand to the trial court so that it can consider whether a different sentence should be imposed.

We note that defendant asserts that his second-offense habitual offender conviction was counted as a concurrent felony conviction and was used to score PRV 7 as twenty points. To the extent that defendant's assertion is correct, such action would be inappropriate because the habitual offender statute does not create a substantive offense that is separate from and independent of the principal charge. People v Bewersdorf, 438 Mich. 55, 67; 475 N.W.2d 231 (1991); People v Connor, 209 Mich. App. 419, 426; 531 N.W.2d 734 (1995).

We are not implying that a different sentence must be imposed or that we think defendant's sentence of ten to thirty years' imprisonment is disproportionate. Furthermore, as previously stated, the sentencing guidelines are a useful tool in determining an habitual offender's sentence. Martinez, supra. Although a strict mathematical approach should not be used to determine the proportionality of an habitual offender's sentence, Cervantes, supra at 626, 634, the guidelines' recommended range can be compared to the degree of sentence enhancement authorized by the Legislature under the habitual offender statutes, id. at 634; People v Chandler, 211 Mich. App. 604, 615; 536 N.W.2d 799 (1995). However, most importantly, the key test is whether the sentence is proportionate to the seriousness of the offense and the circumstances of the offender. People v Milbourn, 435 Mich. 630, 661; 461 N.W.2d 1 (1990); Chandler, supra at 616.

We remand. We do not retain jurisdiction.