People v. Schnepp , 185 Mich. App. 767 ( 1990 )

185 Mich. App. 767 (1990) 463 N.W.2d 183

PEOPLE
v.
SCHNEPP

Docket No. 120739.

Michigan Court of Appeals.

Decided October 15, 1990.

Dan J. Dowdell, for defendant.

Before: WEAVER, P.J., and SAWYER and NEFF, JJ.

NEFF, J.

Defendant pled guilty as charged to possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). After being sentenced to two years to four years of imprisonment, defendant filed this appeal as of right. We affirm defendant's conviction, but reverse and remand for resentencing before another judge.

I

At about one o'clock in the morning defendant was observed by a policeman behind a gas station. Defendant was urinating when he was seen by the officer.

The officer stopped his cruiser and approached defendant. During the ensuing conversation defendant picked up a small duffel bag which had been on the ground at his feet. Because defendant "seemed to be a little bit nervous" the officer became concerned for his safety and became nervous himself, finally asking about the contents of the bag. After several requests from the officer to open the bag, defendant complied and threw it on the ground. The bag contained about a half pound of marijuana.

Defendant had about $1,500 in his wallet, separated into $100 dollar increments.

Defendant was charged with the marijuana felony and with the misdemeanor offense of urinating in public.

II

At the time of the offense, defendant was twenty-eight years old. He had no prior criminal record, either as a juvenile or as an adult. He was employed at a responsible job where he was considered a valuable employee and was married with four young children.

The sentencing guidelines called for a minimum sentence of from zero to six months in jail. Instead, the trial judge sentenced defendant to a minimum term of two years of imprisonment. The trial judge candidly explained his reasons for the departure from the guidelines' recommended minimum sentence.

Defendant raised and preserved the issue of sentence length in this appeal, which was pending when People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), was decided. Whether we impose the "principle of proportionality" announced in Milbourn as the new standard of appellate review of the exercise of sentencing discretion or the old standard of "shock the conscience" under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), we find the trial judge's reasons inadequate to justify the departure from the guidelines and we conclude that the resulting sentence constitutes an abuse of his discretion.

III

In spite of defendant's prior clean record, his employment status and his family considerations, the only plea bargain involved was the dismissal of the misdemeanor charge of urinating in public. Defendant pled guilty as charged on the marijuana offense. At the plea proceedings, defendant did not attempt to minimize his conduct and was open with the court in admitting that he possessed the marijuana to sell, explaining that he had purchased a pound of the drug for $900 about a week before his arrest. He claimed that this was his first venture into trafficking, although he admitted to being a casual user since junior high school.

IV

On the guidelines departure form, the trial judge explained his reasons for the severity of defendant's sentence:

1. Marihuana treated to [sic] lightly.

2. Court not impressed with Metro-Detroit and tri-county sentencing statistics which significantly influence the range. Western Michigan has higher standards.

At the sentencing hearing the judge was more expansive in explaining the basis of his sentencing decision:

In your case, notwithstanding the fact that you have a good record, you are going to suffer very severely — and not just because of you, but because of the Court's desire to send a message to other people who are going to be involved with drugs — and many people look upon marijuana as being like — the comparison, maybe, of a dandelion and a rose — that it's sort of nothing, it's just there, and what's the big deal, as opposed to a rose — and maybe cocaine being compared to a rose.

* * *

The Court determines that the sentencing guidelines are not appropriate in this case as a result of their very lenient treatment of marijuana. This Court considers marijuana equal to any other illegal substance, and it should not be specifically controlled by what Detroit's statistics are, which is what our sentencing-guidelines numbers are all about — I shouldn't say "Detroit." I should say the "metropolitan Detroit area," the "Tri-County area," where 60 to 65 percent of all the numbers come from in the guidelines. I don't feel bound by the morality in Southeastern Michigan, as opposed to the rest of the state, where maybe some of us feel that marijuana is a much more serious substance than others consider it.

The Court also desires to send a message to the community that drug dealers will be severely treated by punishment, loss of jobs, loss of freedom, et cetera.

V

We find the reasons expressed by the trial court inappropriate to support the decision to exceed the guidelines minimum range by a factor of four. The sentence imposed constitutes an abuse of discretion to the point that it both shocks our judicial conscience and violates the principle of proportionality on its face.

The trial judge has said, in effect, that both the Legislature and the Supreme Court are in error in determining the appropriate punishment for marijuana offenses. Moreover, the judge takes it upon himself to correct these perceived errors by sentencing defendant without regard to the goal of individualized sentencing mandated by our Supreme Court in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), and in direct conflict with the stated purpose of the sentencing guidelines to seek standardized sentencing on a state-wide basis.^[1] In so doing, the trial judge has exceeded the bounds of his discretion.

VI

Defendant's conviction is affirmed, but this case is remanded to the trial court for resentencing before a different judge. We do not retain jurisdiction.

WEAVER, P.J., concurred in the result only.

NOTES

[1] People v Fleming, 428 Mich 408, 426; 410 NW2d 266 (1987); People v Crook, 162 Mich App 106, 109; 412 NW2d 661 (1987); State of Michigan Sentencing Guidelines Manual, Michigan Sentencing Guidelines Statement of Purpose. See also People v Chapa, 407 Mich 309; 284 NW2d 340 (1979).