People v. Humble , 146 Mich. App. 198 ( 1985 )

146 Mich. App. 198 (1985) 379 N.W.2d 422

PEOPLE
v.
HUMBLE

Docket No. 79349.

Michigan Court of Appeals.

Decided July 8, 1985.

State Appellate Defender (by Herb Jordan), for defendant.

Before: MacKENZIE, P.J., and CYNAR and WAHLS, JJ.

PER CURIAM.

Defendant pled guilty to breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305, and entering a coin machine by force, MCL 752.811; MSA 28.643(101). The plea was accepted by the Hon. David E. Burrows, a visiting probate judge, on March 16, 1984. Defendant was thereafter sentenced by the Hon. Paul F. O'Connell, circuit court judge for the County of Isabella, on April 6, 1984. Defendant was sentenced to prison for a term of from 5 to 10 years for the breaking and entering, and received a concurrent term of from 1 year and a day to 3 years for entering the coin machine by force. Defendant appeals from his sentences as of right.

Defendant first argues that he should have been sentenced by the judge who accepted his plea of guilty. We agree that a defendant is entitled to be sentenced before the judge who accepts his plea, provided that judge is reasonably available. People v Van Auker (After Remand), 132 Mich App 394, 399; 347 NW2d 466 (1984), rev'd on other grounds 419 Mich 918 (1983); People v Clark, 408 Mich 945 (1980); People v Clemons, 407 Mich 939; 291 NW2d 927 (1979), reversing 91 Mich App 68, 74; 282 NW2d 838 (1979). The record before us is silent on the question of whether Judge Burrows, a visiting probate judge, was reasonably available on April 16 to sentence defendant. We therefore remand this case to the Isabella Circuit Court with the direction that defendant be resentenced before Judge Burrows if he is reasonably available. See, e.g., Van Auker, supra, p 399; People v Collins, 25 Mich App 609, 613; 181 NW2d 601 (1970); MCR 2.630.

Defendant next argues that the sentencing court improperly considered possible sentence reductions available under the Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.; MSA 28.1437(1) et seq., when imposing sentence. We agree.

Prior to imposing sentence, the circuit court stated the following with regard to prison over-crowding:

"Again, this court is well aware of the fact that at the present time, again, due to the overcrowding of prison conditions, that if one is committed to the Department of Corrections for a non-assaultive offense of anything under three (3) years, then that person is going to walk within 3 or 4 months. There is no question about it. * * * So I don't intend to commit [defendant] to a prison sentence that's going to be in effect less if he's going to be put into jail for 6 months."

Although trial courts are afforded wide discretion when imposing sentences within statutory limits, see MCL 769.1; MSA 28.1072, such discretion is not unlimited. See People v Coles, 417 Mich 523, 530-532; 339 NW2d 440 (1983). Sentences must be individually tailored to both the particular circumstances of the case and the offender. People v Chapa, 407 Mich 309, 311; 284 NW2d 340 (1979). The possible reduction of an inmate's minimum sentence due to prison overcrowding, however, is unrelated to either the individual defendant or the particular circumstances surrounding his case. Further, in order to fulfill society's dual goals of rehabilitation and protection, it is essential that courts consider only complete and accurate information when imposing sentence. People v Triplett, 407 Mich 510, 514; 287 NW2d 165 (1980); People v Lee, 391 Mich 618, 634-639; 218 NW2d 655 (1974). At the time of sentencing, however, a court cannot know but could only speculate as to how many reductions, if any, would be issued by the Governor during a defendant's prison stay. We hold that sentencing courts may not consider possible sentence reductions available under the Prison Overcrowding Emergency Powers Act when imposing sentence. On remand, defendant must be resentenced in accordance with this holding.

Defendant's final two contentions are without merit. First, defendant argues that the sentencing court erred by imposing a sentence beyond that recommended in the sentencing guidelines on the basis of defendant's prior record.

According to the departure policy found in the Michigan Sentencing Guidelines Manual, Tab 27, sentencing courts in their discretion may go outside the guidelines where (1) due to special circumstances or characteristics of the defendant, justice requires a sentence different than the one provided, or (2) regardless of special characteristics, the court feels that the sentencing range is simply inappropriate. Here the court stated both on the record and in the sentencing information report that the guidelines were "totally inadequate when looking at defendant's conduct". More is not required. The question of whether a trial court may give additional weight to a variable already incorporated in the guidelines when explaining a departure from the recommended sentence has been previously answered by this Court in the affirmative. People v Ridley, 142 Mich App 129, 134; 369 NW2d 274 (1985); People v Purzycki, 143 Mich App 108; 371 NW2d 490 (1985).

Defendant's final argument is that the presentence report, which concluded by recommending defendant's incarceration, did not comply with MCL 771.14; MSA 28.1144 in that it lacked the required specificity. We find that a recommendation of incarceration is sufficiently specific under the statute. People v Joseph, 114 Mich App 70, 78; 318 NW2d 609 (1982); People v Perkins, 141 Mich App 186; 366 NW2d 94 (1985).

Remanded for resentencing.