People v. Spalla

147 Mich. App. 722 (1985) 383 N.W.2d 105 PEOPLE v. SPALLA Docket No. 82044. Michigan Court of Appeals. Decided August 1, 1985. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, *724 Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Margaret C. Horenstein, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Stuart B. Lev), for defendant on appeal. Before: ALLEN, P.J., and WAHLS and J.P. O'BRIEN,[*] JJ. PER CURIAM. This case, now nine years old, comes to us for the third time. In March, 1976, defendant was convicted by jury of first-degree murder. In June, 1978, this Court affirmed the conviction, with Judge M.J. KELLY dissenting on the ground that the trial court erred reversibly in allowing the prosecution to impeach the credibility of its own witness by use of a rebuttal witness. People v Spalla, 83 Mich App 661; 269 NW2d 259 (1978). In March, 1978, the Supreme Court reversed and remanded for a retrial for the reasons stated in the dissent. People v Spalla, 408 Mich 876; 290 NW2d 729 (1980). Defendant was retried in July, 1981, and again was convicted of first-degree murder. On March 3, 1983, in an unpublished opinion, this Court affirmed the conviction and sentence. Docket No. 60683. On April 27, 1984, the Supreme Court, with Justice BOYLE dissenting, reversed and remanded to the circuit court for entry of conviction of second-degree murder on grounds of insufficient evidence of premeditation for conviction of first-degree murder. People v Spalla, 419 Mich 863; 346 NW2d 841 (1984). Sentencing took place October 2, 1984, before the same judge who had sentenced defendant twice *725 before. The prosecutor's comments to the court encouraged the court to consider the two jury verdicts of first-degree murder. Defense counsel objected, arguing that it would be improper to consider the jury verdicts since the conviction had been changed by the Supreme Court. Defendant spoke in his own behalf, asserting his innocence but expressing regret for the death of his friend. The trial court then made the following comments before again imposing a sentence of life imprisonment: "The Court: Well, the Court wants to say for the record it has received a veritable avalance [sic] of letters from people you work with in Jackson and friends, peers, other people all who say that you're doing a good job up there, you're helping other people. You've straightened your life out, you've been a good prisoner. "But unfortunately you have to deal with the original charge. The Court sat here, we had two different juries, 24 different individuals who found you guilty of murder in the first degree. And this Court in spite of all the good works you've done up in Jackson while you've been there incarcerated, it's not unique, with other prisoners doing the same thing. The Court must consider the original charge, the original disposition by the jury, the horrendous nature of the crime, a truly horrible crime. Also the fact that there's been no remorse shown to the particular crime. This Court does not believe the jury verdict was in error. Accordingly, I am going to sentence you again to life in the State Prison of Southern Michigan." Defendant appeals as of right. We find merit in defendant's claim and remand for resentencing. This Court was given the authority to review sentences in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Coles also stated that a trial judge is required to state his or her reasons for *726 imposing sentence on the record. While the judge complied with this requirement, the reasons articulated were not altogether proper. By referring to "the original charge" and never once mentioning that defendant's conviction had been changed to second-degree murder by the Supreme Court, the trial court appeared to be sentencing defendant for an offense of which he was not convicted. It is error to sentence a defendant on the assumption that he is guilty of another crime, especially where the defendant has been found not guilty. People v Carter, 128 Mich App 541, 551; 341 NW2d 128 (1983). We also question the trial court's reference to lack of remorse. Webster's Third New International Dictionary defines remorse as "a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others)". It is impossible to have remorse if one does not have sense of guilt. Defendant has steadfastly maintained his innocence throughout the nine-year period of these proceedings. One can have compassion, sorrow, or regret for the death of a friend and this defendant did articulate that he had such feelings.[1] The trial court also did not respond to defense objections to inaccuracies in the presentence report. Because this was defendant's third sentencing for the same crime, there was three presentence reports. While defendant admitted that the third report was accurate, it was a short, abbreviated form of the standard presentence report and served as a supplement to and not a replacement for the previous two reports containing the alleged inaccuracies. Our perusal of the sentencing transcript *727 fails to reveal whether the sentencing judge considered the inaccuracies. This Court has previously found error where the trial judge relinquished his discretion by failing to respond in any way to a defendant's contention that the presentence report contained inaccurate or improper information. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975). Defendant's final contention of error concerns the use of the recently mandated minimum sentencing guidelines. Administrative Order No. 1984-1, 418 Mich lxxx. Strict compliance with the guideline factors for second-degree murder would result in a minimum sentence of from 7 to 16 years in prison. This is after taking into account defendant's prior record of three misdemeanor convictions and several variables related to the crime itself. However, departures from literal compliance with the guidelines are expected. When departures are made, section 27 of the Sentencing Guidelines Manual states that departure reasons must be placed on the record and on the Sentencing Information Report (SIR). Although one recent panel of this Court, in People v Good, 141 Mich App 351; 367 NW2d 863 (1985), held that placing the reasons for departure on the SIR (as was done in this case) has the effect of placing them on the record, we disagree. We choose to follow the reasoning of the panel in People v Fleming, 142 Mich App 119; 369 NW2d 499 (1985), which held that the departure reasons must be placed on the record in addition to the SIR, which has only the effect of placing them in the record. Defendant is thus entitled to resentencing. Because the trial judge has twice before sentenced this defendant, we feel it would be fairer to both the defendant and the trial judge if resentencing were before a different judge. We decline, however, *728 to assign the matter to a different circuit. We also decline to order, or even to infer, that the sentence not exceed the minimum found in the guidelines. There well may be legitimate reasons for departing from the guidelines. However, those reasons should be carefully spelled out by the sentencing judge. Remanded for resentencing. J.P. O'BRIEN, J. (dissenting). I find no merit in defendant's claims and would affirm. There is no question that this Court has the authority to review sentences pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983), and that under Coles the sentencing judge must state on the record his reasons for the sentence imposed. The sentencing judge fulfilled this requirement in this case and in doing so stated that he considered the evidence he had heard during defendant's two previous trials. A sentencing judge may consider alleged criminal conduct not resulting in convictions, so long as the information is accurate. People v Moore, 70 Mich App 210; 245 NW2d 569 (1976). In this case the trial judge did not consider any inaccurate information. Second, there is no showing on the record that the trial judge considered any inaccurate information in the presentence report. Finally, the trial judge filled out the reasons for departure on the Sentencing Information Report and filed it, making it part of the record. The requirements of the guideline departure policy were met. People v Good, 141 Mich App 351; 367 NW2d 863 (1985). I would affirm the sentence. NOTES [*] Recorder's Court judge, sitting on the Court of Appeals by assignment. [1] "I would like to take this opportunity to express to the Court that there is no one either in or outside this courtroom today save the immediate family of the deceased, Ron Furby, who can maintain that they have felt Ron's loss more than I have. He was a valued, trusted and loyal friend and I will always cherish the friendship we shared that extended for a period of 20 years."