PEOPLE OF MI V GARRETT STEVEN LANGOWSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 7, 1997
Plaintiff-Appellee,
v
No. 188390
Crawford Circuit
LC No. 94-001290
GARRETT STEVEN LANGOWSKI,
Defendant-Appellant.
Before: Cavanagh, P.J., and Gage and D.A. Burress,* JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of home invasion in the second degree, MCL
750.110a; MSA 28.305(a), and was sentenced to eight to fifteen years’ imprisonment. The trial court
denied his motion for resentencing. Defendant now appeals his sentence as of right. We affirm.
In sentencing defendant, the trial court noted that there were no applicable guidelines for the
offense of home invasion in the second degree. Defendant argues that the trial court erred in refusing to
score and utilize the sentencing guidelines’ minimum range for breaking and entering an occupied
dwelling because, he contends, the elements and statutory maximum punishments of the two offenses
are identical. We disagree.
The crimes of home invasion in the first and second degree were codified by the enactment of
1994 PA 270, which amended MCL 750.110; MSA 28.305, removing from its ambit instances of
breaking and entering a dwelling, and created MCL 750.110a; MSA 28.305(a). The new home
invasion statute provides in pertinent part:
(2) A person who breaks and enters a dwelling with intent to commit a felony or
a larceny in the dwelling or a person who enters a dwelling without permission with
intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the first
_________________________
* Circuit judge, sitting on the Court of Appeals by assignment.
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degree if at any time while the person is entering, present in, or exiting the dwelling either
of the following circumstances exist:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
(3) A person who breaks and enters a dwelling with intent to commit a felony or
a larceny in the dwelling or a person who enters a dwelling without permission with
intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the
second degree.
(4) Home invasion in the first degree is a felony punishable by imprisonment for
not more than 20 years or a fine of not more than $5,000.00, or both.
(5) Home invasion in the second degree is a felony punishable by imprisonment
for not more than 15 years or a fine of not more than $3,000.00, or both.
(6) The court may order a term of imprisonment imposed for home invasion in
the first degree to be served consecutively to any term of imprisonment imposed for any
other criminal offense arising from the same transaction.
(7) Imposition of a penalty under this section does not bar imposition of a
penalty under any other applicable law.
When imposing a sentence, trial courts are required to use the applicable sentencing guidelines
for offenses included in the guidelines. MCR 6.425(D)(1). However, as this Court noted in People v
Edgett, ___ Mich App ___; ___ NW2d ___ (Docket No. 180885, issued 12/27/96), “the sentencing
guidelines do not apply to a surprisingly large number of circumstances,” including “any offenses created
by the Legislature since October of 1988 onward (when the revised second edition of the guidelines’
manual became effective).” Id. Home invasion is among the offenses we specifically cited in Edgett.
Id.
Defendant contends that the intent of the Legislature in creating a commission to promulgate
new guidelines and the intent of our Supreme Court in ordering that the guidelines be used by trial courts
will be frustrated if breaking and entering is removed from the guidelines only because the Legislature
changed the name of the felony. However, the Legislature did not simply change the name of the felony.
The amended statute and the new statute together create three separate offenses -- breaking and
entering, first-degree home invasion, and second-degree home invasion.
The preamendment version of the breaking and entering statute drew a distinction between
occupied and unoccupied dwellings. The sentencing guidelines also distinguished between these
offenses for imposing minimum sentences. Michigan Sentencing Guidelines (2d ed), p 12. Under the
new home invasion statute, the Legislature discontinued this distinction. Instead, they distinguished those
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circumstances in which an offender was either armed with a dangerous weapon or another person was
lawfully within the dwelling as the more egregious offense of home invasion in the first degree. MCL
750.110a(2); MSA 28.305(a)(2). Home invasion in the second degree encompasses home invasion
offenses in which neither of these conditions are present. MCL 750.110a(3); MSA 28.305(a)(3).
Moreover, the Legislature provided additional discretionary penalties for the home invasion offenses.
MCL 750.110a(4), (5), and (6); MSA 28.305(a)(4), (5), and (6).
Because of these changes in offense elements and the maximum statutory penalties, we conclude
that the Legislature has not simply renamed a felony, as defendant argues, but rather has created new
offenses. The trial court therefore did not err in refusing to utilize the sentencing guidelines for breaking
and entering an occupied dwelling because the new home invasion offenses are not included within the
guidelines. People v Spicer, 216 Mich App 270, 274; 548 NW2d 245 (1996); People v Hill, ___
Mich App ___; ___ NW2d ___ (Docket No. 186869, issued 2/7/97).
Defendant next argues that his sentence was disproportionate. Our review of sentencing is
limited to determining whether the trial court abused its discretion. People v Odendahl, 200 Mich App
539, 540-541; 505 NW2d 16 (1993). A sentencing court abuses its discretion when it violates the
principle of proportionality articulated in People v Milbourne, 435 Mich 630; 461 NW2d 1 (1990).
When sentencing a defendant, the court may consider the facts underlying uncharged offenses, pending
charges, and acquittals. People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d
827 (1994).
Defendant was seventeen years old when he committed the instant offense, in which he and a
companion kicked down the door of a home and stole a semi-automatic pistol, approximately 125
rounds of ammunition, and some cash. According to his presentence report, defendant used the stolen
weapon in a subsequent assault. He already had a lengthy juvenile record, which included other
burglaries and a weapons offense, and a history of drug abuse. At the time of sentencing, defendant
faced approximately fifteen pending charges of armed robbery, breaking and entering, felonious assault,
and carrying a concealed weapon. In addition, defendant had other charged counts that had been
dismissed without prejudice. In sentencing defendant, the court indicated that it imposed the sentence
after due consideration of the presentence report, “particularly the lengthy and extensive accomplished
record of the defendant and those matters yet pending.” The court further noted that the sentence was
“reflective of the seriousness of the offense, where a gun was taken, but is not the maximum that the law
would allow.”
Home invasion in the second degree carries a maximum penalty of fifteen years. Under the
two-thirds rule articulated in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), the trial
court could have sentenced defendant to a ten- to fifteen-year sentence. Because of the seriousness of
the offense, which included the theft of a gun subsequently used in a separate offense, and defendant’s
already extensive criminal history, we find that the sentencing court did not abuse its discretion in
sentencing defendant. His eight- to fifteen-year sentence was proportionate to the offense and to this
offender. Milbourne, supra at 651.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
/s/ Daniel A. Burress
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