
213 Mich. App. 8 (1995)
539 N.W.2d 538
PEOPLE
v.
KELLY
Docket Nos. 160106, 160962, 162750.
Michigan Court of Appeals.
Submitted June 7, 1995, at Grand Rapids.
Decided August 22, 1995, at 9:05 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, Chief Appeals, Research, and Training, for the people.
*10 State Appellate Defender (by Randy E. Davidson), and Chester L. Kelly, in propria persona.
Before: NEFF, P.J., and HOEKSTRA and G. SCHNELZ,[*] JJ.
NEFF, P.J.
Defendant's appeals in three unrelated cases have been consolidated. In Docket Nos. 160106 and 162750, defendant was convicted by separate juries of one count of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and breaking and entering with the intent to commit a felony in an occupied dwelling, MCL 750.110; MSA 28.305. In each case, defendant pleaded guilty of being a third-offense habitual offender. MCL 769.11; MSA 28.1083. In Docket No. 160962, defendant was convicted by a jury of two counts of first-degree criminal sexual conduct and one count of breaking and entering an occupied dwelling. Defendant pleaded guilty of being a third-offense habitual offender in this case as well.
In Docket No. 160106, defendant was sentenced, after a correction by the sentencing court sua sponte, to concurrent terms of sixty to one hundred years for the criminal sexual conduct conviction and twenty to thirty years for the breaking and entering conviction. In Docket No. 160692, defendant was sentenced to concurrent terms of sixty to ninety years for each criminal sexual conduct conviction and twenty to thirty years for the breaking and entering conviction. In Docket No. 162750, defendant was sentenced to sixty-five to one hundred years for the criminal sexual conduct conviction and to a concurrent twenty- to thirty-year term for the breaking and entering conviction. All of the sentences were enhanced because of his habitual offender status.
*11 Defendant appeals as of right from his convictions and sentences. We affirm defendant's convictions. With regard to the sentences, we affirm in part and vacate in part.
I
In all three cases, defendant raises various issues he claims require his convictions to be reversed. We have carefully reviewed the records of defendant's jury trials and are convinced that defendant's allegations of error with respect to his convictions either were waived or are meritless.
II
Defendant also claims errors were made in sentencing, arguing that the sentencing courts improperly imposed indeterminate sentences that amount to nonparolable life sentences. We disagree.
A
Before addressing defendant's substantive argument, we examine defendant's "corrected" sentence in Docket No. 160106 where the trial court first sentenced defendant to 37 1/2 to 75 years' imprisonment for the criminal sexual conduct conviction and to life imprisonment for the breaking and entering conviction. The court properly determined that the life sentence for breaking and entering was illegal. The court then sua sponte resentenced defendant on both the criminal sexual conduct and the breaking and entering convictions. The original criminal sexual conduct sentence was not illegal or otherwise invalid, nor was it tied to the illegal breaking and entering sentence.
*12 The trial court erred in vacating defendant's valid sentence of 37 1/2 to 75 years for the criminal sexual conduct conviction. Once a valid sentence has been ordered by a trial court, the court is without jurisdiction to upset that sentence. MCR 6.429(A); In re Dana Jenkins, 438 Mich 364; 475 NW2d 279 (1991). Accordingly, defendant's sixty- to one-hundred-year sentence for the criminal sexual conduct conviction is vacated and his 37 1/2- to 75-year sentence is reinstated.[1]
B
Next, we examine defendant's two concurrent sixty- to one hundred-year sentences in Docket No. 160962, which defendant argues are impermissible, nonparolable life sentences. We affirm those sentences.
In People v Weaver (After Remand), 192 Mich App 231; 480 NW2d 607 (1991), this Court found a sentence that left the defendant ineligible for parole until his early nineties to be appropriate.
Here, defendant was thirty-four years old at the time of sentencing. Considering good-time credits, defendant will be eligible for parole at an earlier age than the defendant in Weaver. Thus, we affirm defendant's sentences.[2]
C
In Docket No. 162750, defendant again argues that the trial court erred in imposing a nonparolable life sentence when it sentenced him to a minimum sentence of sixty-five years for the criminal *13 sexual conduct conviction. We disagree with defendant.
The difference between defendant's sentence in this case and his sentence in Docket No. 160962 is the following statement made by the trial court when sentencing defendant:
I do believe that you should be sentenced to a length of time that you will never have any freedom within our civilized society. You do not belong there. And I don't want you in civilized society.
In People v McAlister, 203 Mich App 495, 506; 513 NW2d 431 (1994), this Court held that the defendant must be resentenced where "the trial court explicitly intended defendant's sentence of a term of years to be a life sentence from which no release would be possible."
On the basis of McAlister it would appear that, because the trial court intended defendant's sentence to be a life sentence from which no release would be possible, we must order defendant to be resentenced. However, the holding in McAlister is premised on the holding of People v Moore, 432 Mich 311; 439 NW2d 684 (1989), which was squarely, if not explicitly, rejected in People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994). Because Moore has been rejected by subsequent Supreme Court authority, we are not constrained to grant defendant's request for resentencing on the basis of McAlister.
1
In Moore, supra, our Supreme Court held that if a court chooses to impose a term of years rather than life imprisonment, the sentence must be one the defendant has a reasonable prospect of actually *14 serving. See also People v Rushlow, 437 Mich 149, 152; 468 NW2d 487 (1991). Under Moore and Rushlow, an indeterminate sentence is invalid if it has the effect of keeping a defendant in prison for life because it precludes parole consideration.
Justice BOYLE, joined by Justice GRIFFIN and Chief Justice RILEY, dissented from the holding in Moore, finding no error in the defendant's 100- to 200-year sentence. The dissent concluded that the issue was not whether a defendant can serve a sentence, but whether a court has the legislative authority to impose the sentence. Id. at 330.
The dissent examined the relevant statutes and determined that the statutory words "life, or any term of years," needed no interpretation. On the basis of this conclusion, the dissent determined that the majority's conclusion that a "term of years" penalty must be less than "life" was erroneous. Id. at 338.
The dissent also determined that the legislative intent behind "Proposal B" supported their conclusion. See MCL 791.233b; MSA 28.2303(3). They reasoned that if a life sentence was more severe than a term of years sentence, not only must the term of years sentence be less than life, but it must also grant the opportunity for parole in the same manner as a life sentence; a result that is directly contrary to the mandate of Proposal B that a defendant serve the minimum sentence of a term of years sentence. Moore, supra at 339.
2
In Merriweather, supra, the Court was faced with the same issue as that in Moore, i.e., whether the trial court erred in sentencing the defendant to a sixty-year minimum term because that sentence denied him the opportunity for parole. Justice *15 Boyle wrote for the majority in Merriweather, and, employing reasoning very similar to that of her dissent in Moore,[3] upheld the defendant's sentence.
Without explicitly mentioning or overruling Moore, the majority in Merriweather, supra at 809, determined that "the fact that the defendant is not eligible for parole appears to be precisely what the Legislature intended." The majority reasoned that the sentence was appropriate because it was within the permissible range for first-degree criminal sexual conduct, i.e. life or any term of years, and it was indeterminate, it called for a 60- to 120-year term of imprisonment.
The majority, in conclusion, made the following statement:
Assuming arguendo, "the only possible rationale for sentencing the defendant ... was to effectively prevent the Parole Board from assuming jurisdiction," that is the precise result the electorate sought and obtained in the passage of Proposal B. [Id. at 810-811. Citation omitted.]
3
The issue in Moore and Merriweather was the same; the reasoning of the dissent in Moore and the majority in Merriweather was congruent; and, the same three justices who dissented in Moore were joined by a fourth justice to constitute the majority in Merriweather. We conclude from this that the holding of Moore is overruled by Merriweather.
We hold that we are no longer constrained to *16 resentence a defendant because his indeterminate sentence is effectively a life term without parole, and therefore conclude that the proportionality standard of People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), is the appropriate standard by which to judge the legality of a defendant's sentence. We find this to be a more reasonable approach to sentence review because the proportionality standard does not require the judiciary to engage in the hopelessly speculative exercise required by Moore of determining how long a particular inmate will live. See Weaver, supra. Rather, all that is important is whether the penalty fits the offense and the offender, Milbourn, supra at 650, a determination that lends itself to objective evaluation and review.
4
Here, we have no trouble in concluding that defendant's penalty fits him and his offense. At approximately 10:00 P.M., defendant broke into the victim's home as she was watching television with her two children, two and four years old respectively, and her mother. Defendant forced the victim and her family into a back bedroom where he tied their hands behind their backs with bed sheets. He then, after informing the victim that he would kill her, raped her by penetrating her with his penis both anally and orally. After defendant completed the rape, he stole two rings from the residence and then left.[4]
Defendant's past record indicates that, despite repeated incarceration and counseling, he has continually engaged in sexually assaultive behavior since the age of twelve.
On the basis of the facts of this case, we are not *17 persuaded that defendant's sentence violates the principal of proportionality. Consistent with our Supreme Court's opinion in Merriweather, supra, we find no abuse of discretion in the sentencing court's goal of keeping defendant away from society for the rest of his life. Accordingly, we affirm defendant's sentence.
III
In conclusion, we affirm defendant's convictions in all of these appeals.
With regard to defendant's sentences, in Docket No. 160106, we vacate defendant's sixty- to one-hundred-year sentence and reinstate his 37 1/2- to 75-year sentence. We affirm his sentence in all other respects.
In Docket No. 160962, we affirm defendant's sentences of sixty to one hundred years in prison. We do so both on the basis of Weaver, supra, and on the basis that the rule in Moore, supra, is overruled.
In Docket No. 162750, we conclude that the rule of proportionality applies because the rule in Moore, supra, is overruled by the Court's opinion in Merriweather, supra. We find that defendant's sentence does not violate the principal of proportionality, and thus we affirm defendant's sentence.
Convictions affirmed, sentences affirmed in part and vacated in part.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
[1]  Because there has been no challenge on appeal to defendant's twenty- to thirty-year sentence for the breaking and entering conviction, that sentence stands.
[2]  Our analysis in section II C, infra, would lead us to the same result.
[3]  Justice BOYLE'S majority opinion was joined by the two justices who signed on to her dissent in Moore, Justices RILEY and GRIFFIN, and by Justice MALLETT.
[4]  The facts of defendant's other cases are similarly repugnant.
