People v. Beneson , 192 Mich. App. 469 ( 1992 )

192 Mich. App. 469 (1992) 481 N.W.2d 799

PEOPLE
v.
BENESON

Docket No. 122889.

Michigan Court of Appeals.

Decided January 21, 1992, at 9:15 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Laura A. Vargas, Assistant Prosecuting Attorney, for the people.

Thomas J. Bleau, for the defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and DOCTOROFF and CAVANAGH, JJ.

DOCTOROFF, J.

Defendant pleaded guilty of larceny from a person, MCL 750.357; MSA 28.589, and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant was thereafter sentenced for the habitual offender conviction to three to fifteen years in prison. She appeals as of right, and we affirm.

The first issue raised on appeal is whether the sentence was disproportional to the crime and the criminal.

In this case, defendant was sentenced within the range recommended by the sentencing guidelines for the underlying offense. Sentences falling within the recommended guidelines' range are presumptively not excessively severe or unfairly disparate. People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Here, defendant argues that the "minor nature" of the offense justifies a lesser sentence and is sufficient to overcome the presumption of proportionality. We disagree and find that the proportionality standard set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), has been satisfied.

The second and final issue raised on appeal is whether the trial court erred in not articulating on the record its reasons for imposing defendant's sentence as an habitual offender. Defendant urges that the trial court contravened People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970), by failing to recognize that it could exercise its discretion in determining the maximum sentence for the habitual offender conviction. We believe Mauch is distinguishable because the trial court in this case never stated that it had no discretion in setting the maximum sentence. We also distinguish People v Triplett, 432 Mich 568; 442 NW2d 622 (1989), where the Supreme Court held that it was error for the trial court to fail to articulate its reasons for the minimum sentence imposed. Because the sentence was within the guidelines for the underlying offense, and the guidelines do not apply to habitual offender convictions, it would seem counterproductive and burdensome to require further articulation from the trial court for a sentence that is proportionate and that we have already affirmed. The defendant had four prior felonies and was out on bond from a neighboring circuit at the time of the present offense. To remand this matter would be a waste of resources.

Affirmed.

CAVANAGH, J., concurred.

MICHAEL J. KELLY, P.J. (concurring).

I concur, but express hope that the Supreme Court will take this opportunity to revisit its holding in People v Triplett, 432 Mich 568; 442 NW2d 622 (1989). There is presently some difference of opinion with respect to the continuing necessity for remand when the reviewing court has determined on appeal that the sentence is proportionate. For example, the panel in a recent unpublished case remanded for articulation after affirming the convictions and finding the sentences to be within the guidelines.