PEOPLE OF THE STATE OF MICHIGAN v JOSEPH ROBERT BENSCH
No. 341585
STATE OF MICHIGAN COURT OF APPEALS
April 30, 2019
FOR PUBLICATION. Lenawee Circuit Court. LC No. 17-005792-AR.
Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.
TUKEL, J. (dissenting).
Is there any circumstance under which a criminal defendant may veto a sentence which the trial judge intends to impose and demand a sentence more to the defendant‘s liking? Reading the Michigan Constitution and statutes, one would certainly think not. “[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature.” People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001), citing
I. AUTHORITY TO IMPOSE A SENTENCE OF PROBATION
A. THIS COURT‘S DECISION IN PETERSON
The precise question presented here is
Despite this lack of authority, the majority states that “[t]he prosecution does not identify any difficulties that have occurred as a result of defendants being able to refuse probation. Indeed, as a practical matter, we think it is safe to say that the overwhelming majority of criminal defendants gladly welcome probation over incarceration and that the issue rarely arises.” While it is in fact likely that most defendants do prefer probation to a sentence of incarceration, whether or not the prosecution has identified problems which have arisen as a result of the veto doctrine is not relevant to whether it is a proper interpretation of the law. The correct resolution turns on Legislative intent, which is itself based on statutory languаge which expresses the Legislature‘s policy determinations, and we do not consider or weigh those policy pronouncements. See Robinson v Detroit, 462 Mich 439, 474; 613 NW2d 307 (2000) (“[A] Court exceeds the limit of its constitutional authority when it substitutes its policy choice for that of the Legislature.“) (CORRIGAN, J., concurring).
In addition, the other cases from this Court stating that a defendant may veto probation, which the majority cites, also contain no discussion of the source of the
B. STATUTORY AUTHORITY REGARDING PROBATION
However, the availability of probation as a sentencing option for a particular offense is purely a legislative determination. As our Supreme Court has noted, “the source of the trial court‘s probation authority [is] the Legislature.” People v McLeod, 407 Mich 632, 660; 288 NW2d 909 (1980), citing People v Davis, 392 Mich 221, 226; 220 NW2d 452 (1974); see also People v Marks, 340 Mich 495, 498; 65 NW2d 698 (1954) (stating that “[t]he authority of the court” to impose a probationary sentence “must be found in the statute“). And it has long been clear in Michigan that the decision to impose a sentence of probation “rests in the sound discretion of the trial court.” McLeod, 407 Mich at 660; Marks, 340 Mich at 499. It is of course a familiar tenet of statutory construction that we are to effectuate the intent of the Legislature, as set forth in the statutory language used. See, e.g., People v Pinkney, 501 Mich 259, 268; 912 NW2d 535 (2018). “In doing so, we examinе the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute‘s language is unambiguous, . . . the statute must be enforced as written. No further judicial construction is required or permitted.” Id. (quotation marks and citations omitted).
1. MCL 771.1—VESTING POWER WITH “THE COURT”
The relevant statutory language is provided by
In all prosecutions for felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses, if the defendant has been found guilty upon verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer.
It is thus readily apparent that by its plain terms,
As
2. MCL 771.4—“MATTER OF GRACE”
The provision on which the majority expressly relies is
It is the intent of the legislature that the granting of probation is a matter of grace conferring no vested right to its continuance. If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke prоbation.
Peterson did not cite
To begin with, the majority quotes only a portion of the statute, citing it for the proposition that “probation is a matter of grace.” However, a proper reading of the statute shows that it is
But even if the majority is correct that the initial decision of whether to impose probation is controlled by the “matter of grace” language of
The phrase “a matter of grace” was first used in a probation statute in 1927 PA 246, Chapter XI, § 4, which provided in relevant part:
It is the intent of the legislature that the granting of probation to one convicted shall be a matter of grace conferring no vested right to its continuance, if, during the period of probation it shall appear to the satisfaction of the sentencing court that the probationer is likely again to engage in an offensive or criminal course of conduct, or that the public good requires revocation or termination of probation previously granted. All probation orders, therefore, shall be revocable or terminable in any manner which the court which imposed probation shall deem applicable, either for any violation, or attempted violation of any condition of probation, or for any other type of antisocial conduct or action on the part of the probationer. [Emphasis added.]
As is the case with the current version of the statutе, the “matter of grace” language related not to the initial decision to impose probation but rather to its revocation. But even beyond that, in 1927, when the “matter of grace” language was adopted, the term was understood generally to mean simply the opposite of being a matter of right. As noted, our job in construing a statute is to effectuate the intent of the Legislature, as set forth in the statutory language used. In doing so, we must use the understanding of a term as it was
In 1927, when the “matter of grace” language was first adopted, our courts uniformly interpreted the phrase to mean that something was not a matter of right but rather of judicial discretion. See, e.g., Worsham v McCall, 259 Mich 630, 632; 244 NW 183 (1932) (“The remedy of specific performance is a matter of grace rather than of right.“); Harmon v Muirhead, 247 Mich 614, 615; 226 NW 713 (1929) (“Specific performance is a matter of grace, not of right.“); Stuart v Gonyea, 246 Mich 109, 112; 224 NW 386 (1929) (“It is only a matter of grace and not a matter of right.“); see also Black‘s Law Dictionary, 3d ed. (1933) (defining “grace” as “commonly used in contradistinction to ‘right.’ “). And that point accords exactly with what our Supreme Court has long held—as the majority notes—that the decision to impose a sentence of probation “rests in the sound discretion of the trial court.” McLeod, 407 Mich at 660; Marks, 340 Mich at 499. In other words, as used in the probation statute, the term “a matter of grace” in 1927 meant the same thing that “sound discretion of the court” means today.
Thus, the majority‘s position that a trial court‘s “discretion” nevertheless is dependent on a defendant‘s approval and therefore is subject to a defendant‘s veto is untenable; none of the cases from our Supreme Court sо much as hints that a trial court‘s discretionary authority over the decision to impose probation is so limited. Indeed, if that were the case, the use of the term “discretion” to describe the trial court‘s authority would be self-contradictory, as such conditional discretion would not constitute discretion at all. See Sparks v Sparks, 440 Mich 141, 149 n 7; 485 NW2d 893 (1992), quoting Langnes v Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931) (” ‘The term “discretion” denotes the absence of a hard and fast rule. When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.’ “) (ellipses omitted, emphasis added). The veto doctrine necessarily impinges on a judge‘s range of options and, by affording to a defendant a say in the decision to impose probation, mandates that the ultimate decision involves considerations other than those of the judge, as well as approval by someone other than the judge. As such, the vetо doctrine transforms a judge‘s “discretion” into something that falls well short of “the reason and conscience of the judge” leading “to a just result.” Langnes, 282 US at 541. The veto doctrine, therefore, contravenes the long-settled principle that the decision of whether to impose probation is committed to the trial court, whether one uses the modern term “discretion” or the more old-fashioned phrase “matter of grace” to describe that authority, because in this context the two terms mean
II. STARE DECISIS
The majority corrеctly notes that we are not required to follow Peterson because it was issued prior to November 1, 1990.
Stare decisis is generally ” ‘the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Pohutski v City of Allen Park, 465 Mich 675, 693; 641 NW2d 219 (2002) (citations omitted). Before overruling a prior decision, a court must be convinced ” ‘not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.’ ” Id. (citation omitted).
At the same time, stare decisis is a principle of policy, not an inexorable command. Id. As United States Supreme Court Justice Louis Brandeis put it, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 75 L Ed 815 (1931) (Brandeis, J., dissenting), majority opinion overruled in part on other grounds by Helvering v Mountain Producers Corp, 303 US 376, 378; 58 S Ct 623; 82 L Ed 907 (1938). Nevertheless, “stare decisis should not be applied mechanically to prevent a court from overruling erroneous decisions regarding the meaning of a statute.” Robinson, 462 Mich at 463. In Robinson, our Supreme Court set forth four factors that courts must consider before overruling a prior decision: (1) whether the earlier case was wrongly decided, (2) whether the decision defies “practical workability,” (3) whether reliance interests would work an undue hardship, and (4) whether changes in the law or facts no longer justify the questioned decision. Id. at 464.
In considering the reliance interest, courts consider “whether the previous decision has become so embedded, so accepted, so fundamental, to everyone‘s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Id. at 466. However, our Supreme Court also has noted that
it is well to recall in discussing reliance, when dealing with an area of the law that is statutory . . . , that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of
law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expeсtations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court‘s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people‘s representatives. Moreover, not only does such a compromising by a court of the citizen‘s ability to rely on a statute have no constitutional warrant, it can gain no higher pedigree as later courts repeat the error. [Id. at 467-468; accord Pohutski, 465 Mich at 694-695.]
In the criminal law context, reliance interests often will carry little weight in determining whether to overrule an incorrectly dеcided precedent. This is so because ” ‘[T]o have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.’ ” Robinson, 462 Mich at 467. However, “[t]he nature of a criminal act defies any argument that offenders attempt to conform their crimes—which by definition violate societal and statutory norms—to a legal test established [by previous judicial decisions].” People v Gardner, 482 Mich 41, 62; 753 NW2d 78 (2008). Moreover, to the extent such earlier judicial deсisions “implicate reliance interests, such interests weigh in favor of overruling them. Michigan citizens and prosecutors should be able to read the clear words of the statutes and ‘expect that they will be carried out by all in society, including the courts.’ ” Id. at 463 (ellipses omitted).
In sum, “no person could conceivably have relied on [the veto doctrine as enunciated in Peterson] to his or her detriment. That is, we cannot conceive that anyone has committed a [drunk-driving offense] on the basis that, under [Peterson] he or she could only be” sentenced to probation with his consent. People v Ream, 481 Mich 223, 240-241; 750 NW2d 536 (2008) (bracketed material added to correspond with the facts of this case).
Here, it is clear that Peterson should be overruled. For the reasons already stated, the doctrine it enunciated is contrary to the clear statutory directive under which the Legislature has given the authority to the courts to impose a probationary sentence and nowhere has it afforded a defendant the power to refuse such a sentence. Moreover, for the reasons stated by our Supreme Court in Gardner and Ream, there сould not have been any reliance interest by defendant in committing his second drunk-driving offense, such that he would have had an expectation that he could reject probation; and even if defendant had had such a reliance interest, it is one which is illegitimate, given his violation of the criminal law, and thus should not be further endorsed by the judiciary.
For these reasons, I would hold that Peterson is incorrect to the extent that its permits a defendant to veto a sentencing court‘s decision to impose a term of probation.
/s/ Jonathan Tukel