PEOPLE v HANSFORD
Docket No. 104770. Argued January
14, 1997 (Calendar No. 7). Decided May 13, 1997.
Detroit Recorder’s Court, Beverley
Anne Jasper, J.
Court of Appeals, WHITE, P.J., and
GRIBBS and D. B. LEIBER, JJ. (Docket No. 165364)
On remand, the Court of Appeals,
WHITE, P.J., and GRIBBS, J. (SAWYER, J., dissenting) (Docket No.
Conrad L. Mallett, Jr.
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Dorothy Comstock Riley
Elizabeth A. Weaver
FILED MAY 13, 1997
PEOPLE OF THE STATE OF MICHIGAN,
CLARENCE C. HANSFORD, JR.,
BEFORE THE ENTIRE BENCH
In his appeal from a Court of Appeals decision
ordering that the defendant be resentenced, the prosecutor based
his arguments on the premise that this Court should overrule People
v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We decline to do
so because the resolution of this case does not require
reexamination of Milbourn. We reverse the Court of Appeals
order of October 16, 1995, that vacated defendant’s sentence and
ordered resentencing, and reinstate defendant’s sentence.
Following a jury trial, defendant was found
guilty of entering an occupied dwelling without the owner’s
permission and receiving or concealing stolen property over $100. Defendant then pleaded guilty of being an habitual
offender, fourth offense, and was sentenced to a prison term of forty to sixty
Defendant appealed, and the Court of Appeals
affirmed defendant’s convictions, but remanded for resentencing,
finding the sentence of forty to sixty years to be
The prosecutor then applied for leave to appeal
in this Court. In lieu of granting leave to appeal, we remanded
the case to the Court of Appeals for reconsideration in light of People
v Cervantes, 448 Mich 620; 532 NW2d 831 (1995). The Court of
Appeals issued an order finding that the sentence constituted an
abuse of discretion and remanded for resentencing. The prosecutor
sought leave to appeal from the order, which this Court has now
In overturning defendant’s sentence in its
original opinion, April 11, 1995, the Court of Appeals found the
sentence to be disproportionate. We
We first reaffirm our holding in People v
Cervantes, supra, that the sentencing guidelines do not apply
to the sentencing of habitual offenders. In
reviewing sentences imposed for habitual offenders, the reviewing
court must determine whether there has been an abuse of
discretion. Id. at 627. Applying this standard, we
conclude that the trial judge did not abuse his discretion in
sentencing defendant to a prison term of forty to sixty years.
The Court of Appeals summed it up well when it
noted that "Defendant does, to be sure, have an extensive
record and a poor history of community supervision." On
October 11, 1976, he was convicted of attempted larceny from a
building and sentenced to two years’ probation. On June 14, 1977,
defendant was convicted of attempted receiving and concealing
over $100 and was sentenced to 1.5 to 2.5 years in prison. Only
two months later, on August 22, 1977, defendant was convicted of
attempted larceny from a motor vehicle and sentenced to 1.5 to
2.5 years. Then on September 4, 1980, defendant was convicted of
fleeing and eluding and was sentenced to a fine of $185 or
nineteen days. Defendant was convicted of receiving and
concealing stolen property and sentenced to six months in the
Detroit House of Corrections on March 26, 1981. On August 3,
1982, defendant was convicted of two counts of receiving and
concealing stolen property over $100. Defendant was sentenced to
three years probation on April 15, 1985. On November 5, 1985,
defendant was convicted of a violation of probation and sentenced
to ninety days in jail. Next, on July 17, 1988, defendant was
convicted of larceny from a motor vehicle and was sentenced to
three to seven years. Defendant was then placed at a correction
center in July, 1990, from which he escaped, and to which he was
returned in February 1991.
Defendant was placed on parole on March 31,
1992, but was listed as an absconder by July 9, 1992. Defendant
was still on parole when he committed the instant offense in
September of 1992. It is clear from defendant’s record that prior
attempts to rehabilitate him have utterly failed, and that
community supervision is not effective for him.
In addition to acknowledging defendant’s
extensive criminal record, the Court of Appeals also recognized
that the facts of the instant case are "particularly
offensive." While defendant’s mother was hospitalized with a
severe asthma attack, defendant went into her hospital room and
removed her keys from her purse. He then stole his mother’s
automobile, went to her house, and took thousands of dollars
worth of appliances, jewelry, and furs.
In Cervantes, supra at 627-628,
we held that a trial court did not abuse its discretion in giving
a "significant" sentence to an habitual offender where
the trial court considered the defendant’s extensive criminal
history and his potential for rehabilitation. In the
instant case, the underlying felony was defendant’s eighth,
which was committed while on parole from prison where he was
serving a sentence for the commission of a different felony. We
believe that a trial court does not abuse its discretion in
giving a sentence within the statutory limits established by the
Legislature when an habitual offender’s underlying felony, in the
context of his previous felonies, evidences that the defendant
has an inability to conform his conduct to the laws of society.
The sentence in this particular case was within the limits
authorized by the Legislature for an habitual offender, fourth
offense, under MCL 769.12(1)(a); MSA 28.1084(1)(a). The serious
nature of this crime, defendant’s extensive criminal history, and
his clear inability to reform, convince us that the trial court
did not abuse its discretion in imposing defendant’s sentence.
Accordingly, we reverse the Court of Appeals
order of October 16, 1995, and reinstate defendant’s sentence.
MALLETT, C.J., and BOYLE and RILEY, JJ.,
concurred with WEAVER, J.
 MCL 750.115; MSA 28.310.
 MCL 750.535; MSA 28.803.
 MCL 769.12; MSA 28.1084.
 Lastly, defendant asserts that his 40
to 60 year sentence is disproportionate. We agree. The guidelines
recommend a minimum sentence of 1 to 3 years for the underlying
offense. The guidelines, however, are at most a reference point
in assessing the proportionality of an habitual offender’s
sentence. While defendant’s minimum sentence of 40 years greatly
exceeds the highest recommended minimum of 3 years, the habitual
statute allows for such a sentence, and indeed allows for a life
sentence. Such sentences, however, should be reserved for the
most egregious offenders.
Defendant does, to be sure, have an extensive
record and a poor history of community supervision. Moreover, his
stealing from his hospitalized mother is particularly offensive.
Nonetheless, defendant’s prior record consists exclusively of
larcenies and stolen property offenses, and a misdemeanor fleeing
and eluding offense. His longest sentence, 3 to 7 years, was
imposed in 1988. Under the circumstances, a sentence of 40 to 60
years is disproportionate and resentencing is required.
[Unpublished opinion per curiam (Docket No. 165364) (emphasis
 We note that three members of this
Court have held that the sentencing guidelines do not have a
legislative mandate and are therefore without the force of law.
See People v Mitchell, 454 Mich 145, 175; 560 NW2d 600
(1997) and Negri v Slotkin, 397 Mich 105; 244 NW2d 98
 The trial court initially sentenced
defendant to ninety days in jail for entering without the owner’s
permission and three to five years for receiving and concealing
stolen property. These sentences were vacated, and the trial
judge sentenced defendant to forty to sixty years in prison for
being an habitual offender, fourth offense.
 We decided that the trial court did
not abuse its discretion in sentencing a defendant to ten to
twenty years for breaking and entering and four to eight years
for felonious assault:
[The trial court] acted reasonably by
considering both defendant’s extensive criminal history and
his potential for rehabilitation. The trial judge was correct
in performing this analysis because "[u]nder our present
framework of indeterminate sentencing, sentences are based
more on an assessment of the offender than the offense."
People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987).
Moreover, the trial court in Cervantes
considered the fact that the underlying crime was
"serious" and that the defendant "had clearly
demonstrated his lack of intent to reform by violating his
probation." Id. at 628.
 MCL 769.12(1); MSA 28.1084(1) provides
in pertinent part:
If a person has been convicted of any
combination of 3 or more felonies or attempts to commit
felonies, whether the convictions occurred in this state or
would have been felonies or attempts to commit felonies in
this state if obtained in this state, and that person commits
a subsequent felony within this state, the person shall be
punished upon conviction of the subsequent felony and
sentencing under section 13 of this chapter as follows:
(a) If the subsequent felony is punishable
upon a first conviction by imprisonment for a maximum term of
5 years or more or for life, the court, except as
otherwise provided in this section or section 1 of chapter
XI, may sentence the person upon conviction of the fourth
or subsequent offense to imprisonment for life or for a
lesser term. [Emphasis added.]
Defendant’s underlying felony, receiving and
concealing stolen property in excess of $100 in violation of MCL
750.535; MSA 28.803, is a felony that carries a maximum
punishment of five years in prison.
Citing Nagel, Structuring sentencing
discretion: The new federal sentencing guidelines, 80 J Crim
L & Criminology 883-884 (1990).
PEOPLE OF THE STATE OF MICHIGAN,
CLARENCE C. HANSFORD, JR.,
BRICKLEY, J. (concurring).
I continue to adhere to the dissenting opinion in People v
Cervantes, 448 Mich 620, 630-637; 532 NW2d 831 (1995), to
the effect that the sentencing of habitual offenders should be
tested by the principle set forth in Milbourn.
Nonetheless, I agree with the majority in this case that the
Court of Appeals should be reversed. I find that the defendant’s
criminal record justifies the sentence handed down in this case
and, accordingly, is not disproportionate under the Milbourn
PEOPLE OF THE STATE OF MICHIGAN,
CLARENCE C. HANSFORD, JR.,
KELLY, J. (dissenting).
I disagree with the majority’s conclusion and believe that the
trial court abused its discretion in sentencing the defendant to
a prison term of forty to sixty years. When the gravity of the
offense and defendant’s previous contacts with the criminal
justice system are considered, the sentence violates the
proportionality standard set forth in People v Milbourn,
435 Mich 630; 461 NW2d 1 (1990). Consequently, I would affirm the
decision of the Court of Appeals and remand this case for
The majority disregards the Milbourn
standard and establishes a new standard of review for the
sentencing of habitual offenders:
[A] trial court does not abuse its
discretion in giving a sentence within the statutory limits
established by the Legislature when an habitual offender’s
underlying felony, in the context of his previous felonies,
evidences that the defendant has an inability to conform his
conduct to the laws of society. [Slip op at 6.]
The majority provides no rationale for not
using the Milbourn proportionality standard.
I dissent because I believe that the Milbourn
standard should be applied to the sentencing of habitual
offenders. Milbourn intended that the sentencing
guidelines be a starting point in determining whether a
nonhabitual sentence is disproportionate. It also anticipated
that its proportionality standard would apply to crimes not
covered by the guidelines, such as those of habitual offenders. Id.
at 661, n 29. Consequently, it has been interpreted to intend
that "review of an habitual offender sentence is limited to
considering whether the sentence violates the principle of
proportionality set forth in [Milbourn]." People v
Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265
The justifications for the standard that is
laid out in Milbourn apply as forcefully to habitual
offenders as to nonhabitual offenders. In adopting the standard
of proportionality, the Milbourn Court considered the
factors used by the Legislature in formulating sentences. It
reasoned that the Legislature weighed both the severity and
nature of the offense and the background of the offender in
setting the appropriate sentence for a crime. It then determined
that a sentence imposed by a trial judge was an abuse of
discretion if it was not"proportionate" in light of the
offense and the offender
Before Milbourn, an appellate court
would find an abuse of discretion only if the sentence
"shock[ed] the conscience." People v Coles, 417
Mich 523, 550; 339 NW2d 440 (1983). The Milbourn Court
noted that appellate courts extend great deference to the
sentencing judge when making abuse of discretion determinations.
If an abuse of discretion standard is narrowly construed,
appellate review may avoid altogether the consideration of
disparity between the sentence under review and others given for
the same offense. Id. at 647. Consequently, the Court
reasoned that a proportionality standard provides a more
objective review of a trial judge’s exercise of sentencing
discretion than the "shock the conscience" standard.
Another justification for the proportionality
standard was that it checks judicial prejudices, including
racial, gender and social discriminations, that sometimes arise
in the sentencing process. Id. at 646. The standard
accomplishes more than fostering uniform sentences among
similarly situated offenders. Id. at 645-646. It protects
the criminal justice system from the biases associated with
differing philosophies and protects against over-sentencing. Id.
at 645-646, 653.
The majority’s rule in the instant case appears
to disregard the Milbourn Court’s concerns. In setting a
different standard for sentence review for habitual offenders, it
risks taking a step backwards. Sentencing judges’ differing
personal backgrounds, experiences, and viewpoints will surely
give rise to disparate sentences among habitual offenders as they
did among nonhabitual offenders before Milbourn. Id.
at 645. The fact that no sentencing guidelines exist for habitual
offenders leaves the sentencing judge without a valuable gauge to
measure the appropriateness of the sentence imposed. Therefore,
optimum appellate review of habitual offender sentences requires
the objectiveness of a proportionality standard at least as much
as, if not more than, sentences subject to the guidelines.
The Legislature has created a sentencing
commission to develop sentencing guidelines. MCL 769.32-769.34;
MSA 28.1097(3.2)-28.1097(3.4). These guidelines will supersede
the current sentencing guidelines for first-time offenders. MCL
769.34(1); MSA 28.1097(3.4)(1). They will also establish separate
sentence ranges for habitual offenders. MCL 769.33(e)(vii); MSA
28.1097(3.3)(e) (vii). Thus, the Legislature intends that
sentencing guidelines will one day be used in habitual offender
sentencing. In the interim, habitual offenders should have the
benefit of objective sentence review. The proportionality
standard articulated in Milbourn should apply.
In reviewing the habitual offender sentence
using the Milbourn proportionality standard, it was
appropriate for the Court of Appeals to consider Hansford’s
background and the nature of his offense. Milbourn at 650.
Defendant does, to be sure, have an
extensive record and a poor history of community supervision.
Moreover, his stealing from his hospitalized mother is
particularly offensive. [Unpublished opinion per curiam,
issued April 11, 1995 (Docket No. 165364), slip op at 2.]
I agree that defendant exhibits a continuing
disregard for the criminal justice system and a low probability
of speedy rehabilitation. His persistent criminality, even during
parole or probation, clearly warrants the conclusion that he is
as yet unable or unwilling to abide by the rules of the criminal
On the other hand, Hansford’s crimes were
nonviolent: larceny, receiving stolen property, and a misdemeanor
fleeing and eluding offense. The court sentenced him to probation
for three of his offenses. He received a fine of $185 or nineteen
days for a fourth. His longest sentence was three to seven years.
In addition, defendant’s criminal acts have not "escalated
from nonviolent robberies into dangerous weapon assaults against
police officers." People v Cervantes 448 Mich 620,
628, 532 NW2d 831 (1995). Should he have no further opportunities
to live outside the prison system? A forty-year minimum term for
a thirty-four-year-old is a life sentence.
Defendant’s sentence must also be proportionate
to his underlying offense. Milbourn at 650. By way of
comparison, in Odendahl, the Court of Appeals held that a
ten- to fifteen-year sentence for being a fourth habitual
offender was not disproportionate under the circumstances. People
v Odendahl, 200 Mich App 539, 541; 505 NW2d 16 (1993).
Odendahl had been convicted of felonious assault and possession
of a firearm during the commission of a felony. Id. at
540. The Court of Appeals reasoned:
First, the evidence indicates that
defendant argued with and choked the victim. After the victim
fled from him, defendant chased her and then shot her three
times at close range. Defendant sought aid for the victim
following the shooting, but only after returning the rifle.
Further, he asked the victim not to report him to the
authorities. Second, defendant has an extensive criminal
history, including four previous felonies and five
misdemeanors. Some of these offenses involved assault crimes.
[Id. at 541.]
Hansford was convicted of entering an occupied
dwelling without the owner’s permission and receiving stolen
property over $100. He pleaded guilty of being a fourth habitual
offender. Unlike Odendahl’s underlying violent offenses,
Hansford’s offenses are nonviolent. Yet, remarkably, Hansford’s
minimum sentence is thirty years greater than Odendahl’s. As the
Court noted in Milbourn:
"Unjustified disparities promote
disrespect for the criminal justice system and resentment
among prisoners, thus impairing their morale and motivation
for rehabilitation." [Id. at 645.]
In light of these factors, I conclude that the
Court of Appeals correctly found that the trial court abused its
discretion in sentencing defendant to forty to sixty years.
The majority provides too few reasons for its
conclusion that this extreme sentence is not an abuse of
discretion. It mentions defendant’s extensive record of thievery,
that he stole from the home of his hospitalized mother, and his
"inability to conform his conduct to the laws of
The majority notes that the sentence is within
the statutory maximum, life or a lesser term, for a fourth
habitual offender. The implication is that any sentence within
statutory limits would be acceptable. However, the maximum
punishment under MCL 769.12(1); MSA 28.1084(1) applies to
nonviolent as well as violent habitual fourth offenders.
Defendant’s crimes are not among the worst offenses covered by
the applicable habitual offender statute. MCL 769.12(1); MSA
28.1084(1). Defendant’s forty- to sixty-year sentence makes his
offenses appear far greater than they are, and thus, leaves
little room "’to operate’ from the least to the most serious
situations" as contemplated by Milbourn. People v
Merriweather, 447 Mich 799, 806; 527 NW2d 460 (1994).
The majority invites the same "over
sentencing" that the Milbourn Court criticized when
Just as the routine award of high grades
demeans academic value, the routine imposition of maximum
sentences would send a garbled message of society’s views on
the relative blameworthiness of various commissions of a
given crime to the public as well as to the ultimate consumer
of judicial sentencing behaviorthe convicted offender.
[Id. at 645-646.]
It sends an undesirable message to both the
defendant and to society.
Milbourn established the standard of
sentence review in Michigan: proportionality. I see no need for a
new and different standard for habitual offenders. When applied
to the sentence in this case, the standard reveals the sentence
as disproportionate. It should not stand. Consequently, I would
affirm the judgement of the Court of Appeals and remand this case
CAVANAGH, J., concurred with KELLY, J.
People v Hansford
Frank J. Kelley, Attorney General, Thomas
L. Casey, Solicitor General, John D. O’Hair,
Prosecuting Attorney, Timothy A. Baughman, Chief,
Research, Training and Appeals, and Janice M. Joyce Bartee,
Assistant Prosecuting Attorney [12th Floor, 1441 St. Antoine,
Detroit, MI 48226], for the people.
Monsey G. Wilson [3650 Penobscot
Building, Detroit, MI 48226] for the defendant.