Order                                                                            Michigan Supreme Court
                                                                                       Lansing, Michigan

  March 7, 2014                                                                         Robert P. Young, Jr.,
                                                                                                   Chief Justice

  147533                                                                                 Michael F. Cavanagh
                                                                                         Stephen J. Markman
                                                                                             Mary Beth Kelly
                                                                                              Brian K. Zahra
                                                                                      Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                          David F. Viviano,
            Plaintiff-Appellee,                                                                         Justices

  v                                                          SC: 147533
                                                             COA: 312933
                                                             Wayne CC: 89-007735-FC
  LEON ORLANDO ECHOLS,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the June 18, 2013 order
  of the Court of Appeals is considered, and it is DENIED, because the defendant has
  failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
  However, the defendant may seek relief through an application for commutation pursuant
  to MCL 791.243, or, the Parole Board may initiate an application for commutation
  pursuant to MCL 791.244(2).

           CAVANAGH, J. (dissenting).

         I disagree with the decision to deny leave to appeal in this case. While I agree that
  defendant is not entitled to relief under MCR 6.508(D), I think that this is an exceptional
  case in which defendant’s sentence is illegal. Therefore, I would grant defendant’s
  application for leave to appeal under MCR 7.316(A)(7), vacate defendant’s sentence, and
  remand to the trial court for resentencing.

         On June 14, 1989, the then 18-year-old defendant shot and killed a man during an
  altercation over the purchase of a vehicle. From the preliminary examination testimony, 1
  it appears that a disagreement concerning payment between defendant (who was buying
  the car) and the victim (who was selling the car) escalated into a physical confrontation.
  Defendant was cut in the hand by the knife-wielding victim, and defendant’s friend was
  also shot. The victim was shot twice by defendant: once in the shoulder and once in the
  head. A jury subsequently convicted defendant of second-degree murder and felony-
  firearm. Defendant’s minimum sentence range under the judicial sentencing guidelines
  applicable at the time was 120 to 300 months (10 to 25 years); however, the trial court
  sentenced defendant to a prison term of 75 to 150 years for the murder conviction and a
  consecutive 2-year sentence for the felony-firearm conviction.



  1
      The trial transcript and the sentencing transcript are both unavailable.
                                                                                         2

       Defendant appealed, arguing, among other things, that he was entitled to
resentencing under People v Moore, 432 Mich 311 (1989), because there is no reasonable
probability that he would serve both his minimum and maximum sentences, the trial court
failed to justify the upward departure, and the sentence was disproportionate. On
February 6, 1992, the Court of Appeals affirmed defendant’s conviction and sentence.
People v Echols, unpublished opinion per curiam of the Court of Appeals, issued
February 6, 1992 (Docket Nos. 124510 and 124515). Defendant did not seek leave to
appeal in this Court. In September 2011, defendant filed a motion to correct an invalid
sentence pursuant to MCR 6.429(A), which the trial court and the Court of Appeals
denied under MCR 6.508(D).

        Sentences must be proportionate. People v Milbourn, 435 Mich 630, 651 (1990).
“[A] judge helps to fulfill the overall legislative scheme of criminal punishment by taking
care to assure that the sentences imposed across the discretionary range are proportionate
to the seriousness of the matters that come before the court for sentencing.” Id. In
assessing proportionality, a court must consider both the background of the offender and
the nature of the offense. Thus, “[t]he trial court appropriately exercises the discretion
left to it by the Legislature not by applying its own philosophy of sentencing, but by
determining where, on the continuum from the least to the most serious situations, an
individual case falls and by sentencing the offender in accordance with this
determination.” Id. at 653-654.

        Applying these principles, I believe that defendant’s sentence is disproportionate.
The sentence imposed by the trial court is a threefold upward departure from the high end
of the guidelines. The reasons given for the upward departure on the sentencing
departure form were “punishment and [to] protect society.” 2 While under extreme
circumstances such an upward departure may be proportionate, I do not think that the
facts in this case present that situation. When defendant committed the offense he was
only 18 years old and had one prior conviction for cocaine possession. Defendant’s
youth at the time of the offense and his lack of a violent history do not support the trial
court’s contention that he deserves abnormal punishment or that he poses a greater
danger to society than others who have been convicted of second-degree murder. Nor
does the nature of defendant’s crime appear sufficiently worse than other second-degree
murders. 3 Thus, while a departure from the sentencing guidelines may have been

2
  Because the sentencing transcript is no longer available, the reasoning the trial court
placed on the record during sentencing cannot be evaluated.
3
  Compare the defendant’s conduct in People v James, unpublished opinion per curiam of
the Court of Appeals, issued April 28, 2009 (Docket No. 282280), lv den 485 Mich 927
(2009), with defendant’s conduct in this case. In James, the defendant was sentenced to
70 to 150 years (virtually the same as what defendant received in this case) for a 1996
second-degree murder that involved killing an 11-year-old child and wounding a 15-year-
                                                                                          3

warranted in this case, the departure imposed by the trial court offends the principle of
proportionality.

        Additionally, Moore held that the Legislature has prescribed two types of
sentences that can be imposed on a defendant for second-degree murder: a sentence of
life in prison or a sentence of a term of years less than life. Moore, 432 Mich at 319; see,
also, MCL 750.317; MCL 769.9(2). Moore explained that the Legislature has established
that a defendant sentenced to life for second-degree murder is eligible for parole after 10




old child after the defendant shot at the victim’s family members multiple times
(including driving past the house and shooting guns into the air, chasing the victim’s
uncle through a field and shooting at him, and shooting at the uncle’s friends sitting on
the porch) because of a history of family disputes. The depravity of the defendant in
James was far worse than that of defendant in this case.

       Indeed, defendants in other cases whose conduct is arguably worse than
defendant’s conduct in this case received much lighter sentences. See, e.g., People v
Moorer, 246 Mich App 680, 684-686 (2001) (affirming the defendant’s sentence when he
was sentenced to 40 to 85 years for second-degree murder after he kidnapped and
smothered his 21-month-old son because the child’s mother told the defendant that she
did not want to continue a relationship with him), lv den 466 Mich 853 (2002); People v
Gaines, unpublished opinion per curiam of the Court of Appeals, issued January 22, 2013
(Docket No. 308378) (affirming the defendant’s sentence when he was sentenced to 30 to
60 years for a 1993 second-degree murder after he killed an 8-year-old child while
shooting into a randomly chosen house because an accomplice was mad that he had been
assaulted and robbed), lv den 494 Mich 857 (2013); People v Hall, unpublished opinion
per curiam of the Court of Appeals, issued August 9, 2007 (Docket No. 269990)
(affirming the defendant’s sentence when he was sentenced to 32 to 50 years for a 1982
second-degree murder after he shot and killed the victim in order to take back money that
the defendant had lost to the victim while gambling), lv den 480 Mich 1008 (2008).

        Thus, while defendant may have deserved an upward departure, the extent of the
upward departure is disproportionate to the crime. While the trial court may have been
justified in imposing a lengthy sentence, setting the minimum of the term-of-years
sentence at 75 years, effectively sentencing defendant to life in prison, is not
proportionate to defendant’s crime.
                                                                                                               4

years. Moore, 432 Mich at 321; MCL 791.234(7)(a). Meanwhile, a defendant sentenced
to a term of years for second-degree murder is not eligible for parole until the defendant
has served the minimum term of imprisonment. Moore, 432 Mich at 322; see, also, MCL
791.233b. As I explained in People v Merriweather, 447 Mich 799, 813 (1994)
(CAVANAGH, J., dissenting), the problem in this case is not new: because of the
discrepancy in the sentencing scheme between life sentences and indeterminate
sentences, a person serving a life sentence may come under the jurisdiction of the Parole
Board more quickly than one serving an indeterminate sentence. While the sentencing
judge or his successor has the authority to preclude parole for a defendant who is
sentenced to life in prison, MCL 791.234(8)(c), the sentencing judge may not effectively
sentence a defendant convicted of second-degree murder to a nonparolable life sentence
by means of a lengthy term of years. Moore, 432 Mich at 324, 326. In my view, it is an
abuse of discretion to deliberately sentence a defendant with the purpose of depriving the
Parole Board of its jurisdiction. Merriweather, 447 Mich at 812 (CAVANAGH, J.,
dissenting).

       In this case, I believe that the trial court abused its discretion by imposing a term-
of-years sentence for the purpose of foreclosing defendant’s eligibility for parole. Had
defendant been given a life sentence or a term-of-years sentence in accordance with the
sentencing guidelines, defendant would have been eligible for parole in 1999. Under the
sentence imposed by the trial court, however, the earliest that defendant will be eligible
for parole is 2064. 4 The trial judge had the option to sentence defendant to life in prison,
which substantively would have had the same effect as defendant’s 75- to 150-year
sentence, except for defendant’s eligibility for parole. Given the disproportionate upward
departure that will effectively amount to a life sentence, the only purpose I can perceive
for sentencing defendant to the unjustifiable lengthy term-of-years sentence was to
improperly deprive the Parole Board of its legislatively prescribed jurisdiction over
defendant.

       I acknowledge that this Court is generally hesitant to venture beyond the confines
of MCR 6.508(D). However, in rare cases such as this, I believe that it is the duty of this
Court to exercise its powers under MCR 7.316(A)(7) and “grant relief as the case may
require[.]” Therefore, I would vacate the defendant’s sentence and remand to the trial
court for resentencing.


4
 This assumes that defendant receives credit for all available disciplinary credits. See
MCL 800.33.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 7, 2014
       s0304
                                                                             Clerk
