People v. Diamond , 144 Mich. App. 787 ( 1985 )

144 Mich. App. 787 (1985) 376 N.W.2d 192

PEOPLE
v.
DIAMOND

Docket No. 80732.

Michigan Court of Appeals.

Decided August 6, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, G. Michael Hocking, Prosecuting Attorney, and K. Davison Hunter, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Ronald J. Bretz), for defendant on appeal.

Before: DANHOF, C.J., and M.J. KELLY and M.E. DODGE,^[*] JJ.

PER CURIAM.

Defendant pled guilty to breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and unarmed robbery, MCL 750.530; MSA 28.798. Defendant was sentenced to two concurrent prison terms of from 10 to 15 years for the convictions. Defendant appeals as of right.

The sentencing information report indicated a guideline sentence range of from 6 to 24 months. The trial judge stated the following reasons for departure: "[D]efendant is a habitual criminal who participated in a breaking and entering where an 82-year-old woman was held under a blanket." At sentencing, the judge elaborated, also listing protection of society, rehabilitation, and deterrence as reasons for the sentences imposed.

Defendant first argues that the stated reasons for departure — defendant's prior criminal history and the circumstances surrounding the offense — were inadequate reasons for departure because the seriousness of the offense and defendant's prior record already had been taken into account in calculating the minimum sentence range under the guidelines.

Administrative Order 1984-1, 418 Mich. lxxx, states that the guidelines are mandatory "to assist the Supreme Court in evaluating the sentencing guidelines" and a "judge may depart from the recommended minimum range for the reasons, and in the manner, prescribed by the guidelines". The guidelines departure policy indicates that departure is appropriate when the trial judge believes the sentence range does not reflect sentencing practices of the state's trial judges or justice requires a longer sentence than that recommended by the guidelines because of the circumstances of the case at bar. The reasons for departure in the present case fall within the latter.

Defendant contends that this Court should follow Minnesota law. In Minnesota, a sentencing court may not rely on a defendant's criminal history as grounds for imposing a longer sentence than that recommended by the guidelines because the guidelines have already taken criminal history into account. See State v Magnan, 328 NW2d 147 (Minn, 1983). The sentencing guidelines in Minnesota require "substantial and compelling circumstances" for departure from the "presumptive sentence". Magnan, supra, and cases cited therein. The Minnesota rules clearly limit the trial judge's discretion and latitude in considering the reasons for a sentence.

In Michigan, departure, accompanied by the court's reasons for departure, is encouraged in order to facilitate improvement of the guidelines. As this Court stated in People v Ridley, 142 Mich. App. 129, 134; 369 NW2d 274 (1985), "[r]efusing to allow the sentencing court to depart from the guideline minimum range whenever its reasons for departure are included in factors considered by the guidelines would seriously circumscribe the court's discretion in sentencing and retard changes and improvements in the guidelines". In the present case, the trial judge clearly followed the requirements of the departure policy and Administrative Order 1984-1, supra, and we find no error.

Defendant also argues that the sentence he received was excessively severe. Having examined the record and the trial court's sentence explanation, we cannot say that the sentence imposed amounted to an abuse of discretion or shocks our consciences. People v Coles, 417 Mich. 523, 550; 339 NW2d 440 (1983).

Affirmed.

NOTES

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