PEOPLE OF MI V VETO RILEY WISE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 3, 1999
Plaintiff-Appellee,
v
No. 207990
Saginaw Circuit Court
LC No. 96-012298 FH
VETO RILEY WISE,
Defendant-Appellant.
Before: Markman P.J., and Saad and P. D. Houk*, JJ.
PER CURIAM.
Defendant claims an appeal from his sentence of forty to sixty months in prison imposed on his
plea-based convictions of attempted child abuse in the first degree, MCL 750.136b(2); MSA
28.331(2)(2); MCL 750.92(2); MSA 28.287(2), and habitual offender, fourth offense, MCL 769.12;
MSA 28.1084. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
The underlying charge against defendant arose from an incident that occurred in 1992 in which
defendant encouraged young children to engage in a physical altercation. Defendant pleaded guilty of
attempted child abuse in the first degree, and acknowledged his status as an habitual offender. In
exchange for the plea and defendant’s testimony at another trial, the prosecution agreed to recommend
that defendant’s minimum term be capped at ten years.
The sentencing guidelines did not apply to the underlying offense of attempted child abuse in the
first degree; nevertheless, guidelines were prepared for a related offense. Those guidelines
recommended a minimum term range of thirty to forty months. The court sentenced defendant to forty
to sixty months in prison, with credit for two days. The court stated that that sentence was within the
guidelines, but also that it was proportionate to defendant’s circumstances and the circumstances of the
offense.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Defendant argues that he is entitled to resentencing because the sentence is disproportionate and
was imposed in reliance on inapplicable guidelines. We disagree and affirm.
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Although the parties recognized at sentencing that the minimum sentencing range of 30 to 40 months
was not applicable to defendant because it was based on the offense of child torture-- there being no
guidelines for attempted child abuse in the first degree prior to 1999-- defendant’s counsel nevertheless
argued that defendant should be sentenced within this range. Having in fact received such a sentence,
defendant is in no position now to claim that he is entitled to resentencing on the basis that incorrect
guidelines were used. Indeed, the sentencing guidelines do not even apply to habitual offenders.
People v Williams, 223 Mich App 409, 412; 566 NW2d 649 (1997). The standard of review for a
sentence imposed on an habitual offender is abuse of discretion. If an habitual offender’s underlying
criminal history demonstrates that he is unable to conform his conduct to the law, a sentence within the
statutory limits does not constitute an abuse of discretion. People v Hansford (After Remand), 454
Mich 320, 323-324, 326; 562 NW2d 460 (1997). As a fourth habitual offender, defendant could
have been sentenced to life in prison. MCL 769.12(1)(a); MSA 28.1084(1)(a). Defendant had an
extensive criminal record and history of substance abuse. By his actions, he encouraged very young
children to engage in physically dangerous activity. His sentence does not constitute an abuse of
discretion under the circumstances. People v Compagnari, 233 Mich App 233, 235-236; 590
NW2d 302 (1998); Hansford, supra.
Affirmed.
/s/ Stephen J. Markman
/s/ Henry William Saad
/s/ Peter D. Houk
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