People v. Johnigan
People v. Johnigan
Concurring Opinion
(concurring). I join in the conclusions reached in the lead opinion authored by my distinguished colleague, Judge DAVID H. SAWYER. However, as eloquent as he is, equaled only by the pen of my distinguished colleague Judge PETER D. O’CONNELL, I refrain from engaging in the legal colloquy concerning the application of People v Mack, 265 Mich App 122; 695 NW2d 345 (2005), and People v Houston, 261 Mich App 463; 683 NW2d 192 (2004), and the errors, if any, contained in those opinions. Neither Mack nor Houston is dispositive of the case at bar. Further, there is no reason to declare a conflict with either case pursuant to MCR 7.215(J).
The case before this Court must be remanded to the trial court for an articulation of the reasons for defendant’s sentence for the second conviction of felon in possession of a firearm which sentence represents an upward departure from the sentencing guidelines. People v Babcock, 469 Mich 247, 255-257; 666 NW2d 231 (2003). Defendant is a hardened contract killer. He has engaged in a series of planned criminal acts with
Opinion of the Court
In Docket No. 251408, defendant was convicted, following a jury trial, of first-degree, premeditated murder, MCL 750.316(l)(a); felon in posses
Defendant first argues that the trial court abused its discretion in admitting evidence regarding the murder of Ian French and evidence of unrelated weapons found in defendant’s house. We disagree. We review for a clear abuse of discretion a trial court’s decision to admit evidence pursuant to MRE 404(b).
Use of other acts as evidence of character is generally excluded to avoid the danger of conviction based on a defendant’s history of misconduct.
In this case, the informant testified that defendant told him that he was stockpiling weapons to use in his new vocation as a “hit man.” Defendant also hinted or outright revealed to the informant beforehand his intention to commit the three murders and verified them after they were accomplished. As in Starr, the evidence introduced in this case confirmed that the prosecution’s key witness did not merely invent the circumstances of the criminal activity.
Defendant next argues that the prosecutor improperly vouched for the credibility of the informant and improperly emphasized defendant’s character. We disagree. Defendant failed to preserve this claim of error in Docket No. 251408, and, because a curative instruction could have displaced any prejudicial effect, we do not find any error requiring reversal.
Defendant also argues that the trial court erred in sentencing defendant to life imprisonment for the felon in possession of a firearm conviction in Docket No. 250909. We agree and remand for resentencing.
The sentencing guidelines in this case recommended a minimum sentence in the range of twenty-four to seventy-six months. Nonetheless, the sentencing judge sentenced defendant to life in prison. At no time did the sentencing judge indicate that he understood that his sentence departed from the sentencing guidelines, nor
Okay. What I’m looking at here is the, let’s see, all right, on this particular case, No. 03-4489,1 think that we’re all, we’re kind of maybe surprised in some ways at the verdict in this particular case, at least in terms of the fact that they found not guilty on the other one but also found guilty on the possession of a firearm by a felon, and maybe that information as indicated is that they were focused on the circumstances of the arrest and weapons that were found at that time. The whole history of Mr. Johnigan, you know, looking at his entire record going back to the 1986 robbery armed there in 1990 had robbery armed and the felony firearms that occurred, you know, there and then he was put in prison and even while in prison he had a conviction of possession of some kind of improper illegal weapon, and having served a term from 1990 to 2002 and then being [paroled] and then being almost immediately involved with the cases that are here, I think what we have here obviously is a person who has decided to be involved with crime whenever there is the opportunity to do so, and to me almost beyond, you know, rehabilitation. The charge does allow, even though it was a firearm in possession by a felon for normally would carry five years, but as an habitual he can get up to life on that and I’m going to impose that particular sentence on that particular case, 03-4489, as a habitual 4th and put him on life sentence for that.
A trial court is required to choose a minimum sentence within the guidelines range unless there is a substantial and compelling reason to depart from the guidelines.
We do not necessarily disagree that the circumstances of this case present objective and verifiable factors that establish substantial and compelling reasons to depart from the sentencing guidelines and impose a life sentence. But, as Babcock makes clear, we cannot affirm a sentence merely because we find there to be a substantial and compelling reason to depart from the guidelines. Rather, it is necessary that the trial court does so. Not only must the trial court articulate the reason for the departure, but it must also “explain why this reason justifies that departure.”
Furthermore, it is difficult to conclude that the trial court did not abuse its discretion when there is no indication that the trial court understood the nature and extent of its discretion. Or, to put it another way, without knowing that the trial court understood that it was departing from the guidelines, we cannot say with any degree of certainty that, if the trial court did understand that it was departing from the guidelines by imposing a life sentence, that it “would have departed, and would have departed to the same degree .. . .”
Turning to the opinion of our dissenting colleague, there are a number of points with which I take issue. First, our colleague suggests that the sentencing is rendered moot by this Court’s recent decision in People v Mack.
Admittedly there is a certain lack of logic to the Legislature only requiring the presentence investigation report to include the scoring for the highest of
In the case at bar, while the language used by the Legislature in MCL 777.21(2) may produce an illogical and even unintended result, the language is not ambiguous and therefore this Court is not permitted to construe it in any manner other than as written. Accordingly, the result that the Mack Court should have reached is that, under the clear language of MCL 777.21(2) as written, a sentencing court must score the sentencing guidelines for all offenses that fall within the scope of the guidelines. We note that this does
Ultimately, however, we need not create a conflict with the Mack decision because we do not believe that it controls here. Under MCL 771.14(2) (e) (ii), the guidelines are scored for “each crime having the highest crime class.” The only one of defendant’s convictions that is assigned to a crime class is the felon-in-possession conviction, which is a class E felony.
Turning to the other points raised by the dissent, the dissent first indicates that we have conceded that the sentence was proportionate to the crime.
Next, the dissent observes that a defendant convicted of being a felon in possession of a firearm as a fourth-offense habitual offender may be sentenced to life in prison. MCL 769.12 in fact authorizes a fife sentence for any fourth-offense habitual offender if the underlying offense is a five-year felony or greater. But that says nothing about whether imposing a life sentence in a particular case represents a departure from the sentencing guidelines and, therefore, the trial court is subject to the requirements and limitations imposed by statute regarding such departures. Indeed, the felon-in-possession statute would legally authorize the imposition of a sentence of three to five years for a defendant who was convicted without a habitual-offender enhancement. But that is not to say that the sentencing guidelines in a particular case might only recommend a minimum sentence of less than three years. In which case, although the sentencing judge could legally impose a sentence of three to five years, it would represent a departure from the sentencing guidelines and, therefore, the sentencing judge would have to comply with the requirements for a departure. The same principle applies here: a life sentence may be lawfully imposed,
The dissent next turns to People v Houston,
As Houston correctly noted, the Legislature did not produce separate grids for the habitual offender enhancements.
The Court in Houston then determined that under the basic sentencing grid for second-degree murder, in the twelve cells (out of a total of eighteen) in which the upper range of the recommendation is three hundred months or more, there is also provided the alternative of life.
There is no justification for the Houston Court’s interpretation of the statute. The legislative scheme for establishing sentencing guidelines recommendations for habitual offenders in MCL 777.21(3) is clear and unambiguous. Accordingly, further construction is neither required nor permitted.
For the above reason, I, like our dissenting colleague, disagree with Houston. But, because we reach the same result in the case at bar as would be reached under the holding in Houston, there is no basis for us to request the convening of a conflict panel.
The dissent next argues that the guidelines do not apply to life sentences at all because a life sentence is a determinate sentence without a minimum to be imposed. This overlooks the fact that the Legislature has specifically provided for the alternative of a life sentence in sixteen cells of the various guidelines grids.
The dissent attempts to dismiss this inconvenient fact by stating that the fact that the guidelines do
We agree with the dissent that defendant is a hardened contract killer who has planned and engaged in a series of deadly criminal enterprises. He is deserving of enhanced criminal penalties and, in fact, will spend the rest of his life in prison on the basis of his murder convictions. But when the dissent states that “the trial court placed on the record substantial and compelling reasons justifying the departure”
Accordingly, we must remand the matter to the trial court for resentencing on this charge. On remand, the trial court may either impose a sentence within the guidelines recommendation or impose a sentence that departs, including reimposing the original life sentence. But if the trial court imposes a sentence that departs from the guidelines, it shall comply with the requirement of articulating the reasons that justify the departure.
Affirmed in part and remanded for resentencing in part. We do not retain jurisdiction.
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
Id. at 495.
Id. at 496.
MRE 404(b).
Starr, supra at 500-501.
Id. at 501-502.
Id.
Id.
Id.
People v Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003).
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
People v Babcock, 469 Mich 247, 272; 666 NW2d 231 (2003) (opinion appendix).
Id.
Id. at 273.
Id.
Id. at 274.
Id. at 272.
Id. at 273.
265 Mich App 122; 695 NW2d 345 (2005).
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
Id. at 403-404, citing Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976).
Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 143; 662 NW2d 758 (2003); see also People v McIntire, 461 Mich 147, 157; 599 NW2d 102 (1999), wherein the Supreme Court chastised the Court of Appeals for invoking the “absurd result” rule merely to avoid an “illogical result.”
MCL 777.16m.
Post at 479.
261 Mich App 463; 683 NW2d 192 (2004).
Which raises the question why our colleague is dissenting rather than concurring if he acknowledges that there is a binding case that compels the result reached in the case at bar.
DiBenedetto, supra at 402.
MCR 7.215CJ).
MCL 777.61 and MCL 777.62.
People v Stone, 463 Mich 558, 565; 621 NW2d 702 (2001).
Post at 480-481.
MCL 769.34(3).
Post at 481.
Dissenting Opinion
(dissenting). The majority holds that defendant’s life sentence was a departure from the minimum sentence guidelines range, but concedes that the sentence was proportionate to this criminal and this conviction.
Defendant is a contract killer. His convictions represent the outcome of two out of three trials he faced for the murders of three separate victims. At the murder trial for codefendants Ernest Gordon III and Corey McCullough, defendant testified that he alone, not his codefendants, killed Ian French. He killed one of his victims at the behest of a drug dealer who suspected the victim of providing information to the police. He has a long and violent criminal history and began his occupation as a street assassin shortly after his release from prison on another violent crime.
I first note that the sentence of life imprisonment for being a felon in possession of a firearm is expressly allowed under the felon-in-possession statute and the relevant enhancement provision for habitual offenders. The statute that enhances the sentence of a fourth-time felony offender states, “If the subsequent felony is
This Court’s recent decision in People v Houston, 261 Mich App 463, 475; 683 NW2d 192 (2004), holds that a life sentence may still be a departure if the upper end of the minimum sentence guidelines range is less than three hundred months. Under that case, defendant’s life sentence represents a departure from the guidelines. I disagree with Houston and would not follow it if it were not binding precedent.
Life sentences do not (and may not) carry minimum terms, People v Johnson, 421 Mich 494, 497-498; 364 NW2d 654 (1984), so the minimum sentence guidelines should not affect them. The sentencing guidelines only require that “the minimum sentence imposed by a court... shall be within the appropriate sentence range ....” MCL 769.34(2). In this case, the trial court did not impose a minimum sentence (presumably because Johnson and MCL 769.9[2] prohibited the practice) and, instead, the court exercised its statutory discretion to sentence defendant to life imprisonment. Without a minimum sentence, the restriction in MCL 769.34 was not violated, and defendant’s argument that his life sentence constitutes a departure lacks legal merit. While I understand that the Legislature included life sentences in the guidelines as a permissible sentence under some circumstances, this fact falls far short
Furthermore, the trial court placed on the record substantial and compelling reasons justifying the departure, so I would affirm the sentence. The trial court emphasized that defendant had taken every opportunity to obtain lethal weapons and use them on others, even while he was in prison. While defendant argues that this justification gave unfair consideration to prior convictions that were already used to calculate his guidelines range, the sentencing court did not emphasize the convictions as much as their temporal proximity. The facts that defendant wasted no time in establishing a new and homicidal criminal enterprise after his release from prison and that short time spans separated his other offenses were objective and verifiable reasons for departing from the sentencing guidelines range. These reasons were substantial and compelling and correctly led the court to conclude that defendant would likely never be rehabilitated. Therefore, they justified the court’s discretionary imposition of the life sentence. People v Babcock, 469 Mich 247, 256-257; 666 NW2d 231 (2003).
Finally, our recent decision in People v Mack, 265 Mich App 122; 695 NW2d 345 (2005), settles this issue. In Mack, we explained that when it is ordering concurrent sentences, a sentencing court need only calculate the guidelines for the “crime having the highest crime class .. .” Id. at 127, quoting MCL 771.14. In Mack, we found that the sentence for the greater charge fell within the guidelines range, so the sentencing court was not required to calculate and adhere to the guidelines for the lesser offense. Mack, supra at 127. It follows that any qualms about the guidelines application to defendant’s conviction for felon in possession of a firearm is rendered moot by defendant’s conviction and life sentence for the murder of Larry Rogers.
I would affirm defendant’s sentence.
In my opinion, it is a waste of judicial resources to remand this case to the trial court for resentencing.
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