PEOPLE OF MI V JAMES MARLOW
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellee,
V
No. 218900
Saginaw Circuit Court
LC No. 98-016283-FC
JAMES MARLOW, JR.,
Defendant-Appellant.
AFTER REMAND
Before: Cavanagh, P.J., and Markey and Collins, JJ.
PER CURIAM.
Defendant was convicted of two counts of first degree criminal sexual conduct (CSC),
MCL 750.520b, assault with a dangerous weapon, MCL 750.82, and extortion, MCL 750.213.
He was sentenced as a third habitual offender, MCL 769.11, to concurrent prison terms of twenty
to forty years each for the CSC convictions, five to eight years for the assault conviction, and ten
to forty years for the extortion conviction. We remanded this matter to the trial court for a
determination of defendant’s actual habitual offender status. Specifically, we directed the trial
court to resentence defendant if the court determined that defendant was only a second habitual
offender, MCL 769.10, and directed that the presentence report be corrected if it was determined
that defendant was a third habitual offender. We retained jurisdiction to review the
proportionality issue raised in defendant’s appellate brief. People v Marlow, unpublished
opinion per curiam of the Court of Appeals, issued April 20, 2001, p 5 (Docket No. 218900).
On remand, the trial court held a hearing at which it determined that defendant was a
third habitual offender and directed that the presentence report be corrected. We can now
determine whether defendant’s sentence was proportionate. We conclude that it is; therefore, we
affirm.
Defendant claims that his sentence was disproportionate and must be reversed. We
disagree. Appellate review of the proportionality of a sentence received by a defendant is limited
to whether the sentencing court abused its discretion. People v Milbourn, 435 Mich 630, 636;
461 NW2d 1 (1990); People v Fetterley, 229 Mich App 511, 525; 583 NW2d 199 (1998). A
sentence imposed by the trial court must be proportionate to the seriousness of the circumstances
surrounding the offense and the offender. Milbourn, supra at 636. Further, this Court’s review
of an habitual offender sentence is limited to considering whether the sentence violates the
principle of proportionality set forth in Milbourn, supra at 636. People v Gatewood (On
Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996). In light of the circumstances
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surrounding the brutal offense in this case and defendant’s status as a third-felony offender, we
conclude that defendant’s sentence does not violate the principle of proportionality, and the trial
court did not abuse its discretion in sentencing defendant. Milbourn, supra at 636.
We affirm.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
Collins, J. did not participate.
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