noting four basic considerations for determining an appropriate sentence including, “(a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses”
How later courts described this case
- noting four basic considerations for determining an appropriate sentence including, “(a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses”
- rejecting challenge to appellate court’s reliance on affidavit regarding disposition of all cases in a single court over 26-month period when same data could have been “judicially noticed under the ‘one court of justice’ doctrine”
- providing the following penological objectives of sentencing: (1) “reformation of the offender,” (2) “protection of society,” (3) punishment of the offender, and (4) “deterrence of others from committing like offenses”
- taking judicial notice of trial court records in other cases based on the “one court of justice” concept in Michigan’s Constitution, Const 1963, art 6 § 1
Written by the judges who cited it.
The opinion
Black, J.
(dissenting). I agree fully with the comments as well as the reasoning of Judge Holbrook, dissenting below both from the original opinion of Division 2 and from denial of rehearing ( 26 Mich App 510, 520-523 ), and therefore vote to reverse.
Turn first to the reliance of Court of Appeals Judges Levin and Bronson upon North Carolina v Pearce, 395 US 711 ; 89 S Ct 2072 ; 23 L Ed 2d 656 *595 (1969), in particular their quotation of Pearce (at 517), namely:
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.”
Did not Judges Levin and Bronson hear this appeal in plain violation of GCR. 1963, 811(1), plus an unvarying line of decisions of this Court which attest the critical necessity for such a rule? * Did they, deciding finally November 3, 1970, upon assumed authority of Pearce , give any thought to Pearce’s then immediate offspring, Moon v Maryland, 398 US 319 ; 90 S Ct 1730 ; 26 L Ed 2d 262 (1970), and to the use made by the Supreme Court in that case of the affidavit of sentencing Judge Pugh? Did they stop to consider that 1969 Pearce was not declared retroactive and that the Supreme Court, although already provided an opportunity in Moon to so say, deliberately refrained from declaring effect nunc pro tunc of Pearce to sentences predating Pearce ; this one having been adjudged November 15, 1968? Did they deign in any way to provide for the accused Jackson circuit judges any opportunity whatever for the furnishing of their “reasons,” within Pearce’s rule?
Does our majority do so now? There is no pretense of any such opportunity in either of the prevailing opinions I deplore, and no mention therein either of Moon or subsequent Odom (presently cited).
All we have now is another vote to tighten ever more that hypertechnical noose which encircles and *596 progressively strangles law enforcement and influences trial judges to indulge hardened criminals; indulgence which has to be at the personal, physical and monetary expense of those who abide the law and pay the taxes upon which all public officers, judges included, feed semi-monthly.
In People v Payne, decided only November last ( 386 Mich 84, 100-106 [1971]), this Court bothered at least to consult the sentencing judge in that analogous case, and gave him the same opportunity by explanatory affidavit as the Supreme Court gave Judges Pugh and McRae in Moon and Odom v United States, 400 US 23 ; 91 S Ct 112 ; 27 L Ed 2d 122 (1970). But below and here there has been and now is no such condescension.
The fact is that these Jackson County judges have been charged, tried and judged guilty of a great host of alleged constitutional infractions, all in their absence and without presumptive or other showing of knowledge on their part save only that provided— after the fact—by the publication of the Court of Appeals’ advance sheet covering that Court’s decisions of November, 1970. As a result of that “trial” they are warned now, from on juristic High, that they henceforth must render their sentences in escape cases uniform lest scores more of new trials be imposed on the Jackson County circuit. That is the one circuit of Michigan where French leave from this country’s largest prison is so common that escape informations glut the court, and now today’s decision is bound to stimulate a drove of similar-to-Snow applications, the Court having omitted any declaration of prospectivity of Snow.
How indeed was this charge of Pearce “vindictiveness” lodged against all of the Jackson County circuit judges? Why simply by a post-appeal and wholly ex parte affidavit, prepared and submitted *597 without pretense of leave of court by a not exactly disinterested and wholly uncross-examined affiant, namely the defendant’s own attorney. Such is the distinctive kind of due process which is now served out, when the people of a state distinguished from a professional felon is the party equally entitled thereto.
These are the days of judicially benevolent toleration of crime, of “permissive” violation of law, and of that kind of judicial action which impelled Kentucky Justice Montgomery, writing recently in the annotated case of Workman v Commonwealth, 429 SW2d 374, 379 ; 33 ALR3d 326, 334 (Ky, 1968), to conclude his dissent as I conclude this one:
“At this time the lack of law and order is especially of prime concern. Our courts must bear their share of blame and shame for this condition. [Citing cases.] Decisions such as the majority opinion help to create the situation where it is not safe for women to be alone on the streets or even in their homes. Many surveys will be made and many remedies will be suggested. The courts should be the first to honor the responsibility for law and order. Until our courts quit coddling criminals, disobedience and disrespect for law and order will continue.” (Emphasis by present writer.)
T. E. Brennan, J., concurred with Black, J.
GCR 1963, 811(1). “Appeals to the Court of Appeals shall be heard on original papers, which papers shall constitute the record on appeal.”