PEOPLE OF THE STATE OF MICHIGAN v LONNIE JAMES ARNOLD
No. 325407
STATE OF MICHIGAN COURT OF APPEALS
June 11, 2019
FOR PUBLICATION; Monroe Circuit Court; LC No. 13-040406-FH; ON REMAND; Before: GLEICHER, P.J., and MURRAY, C.J. and CAVANAGH, J.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan
PER CURIAM.
Violation of the statute proscribing indecent exposure by a sexually delinquent person,
I
A jury convicted defendant of indecent exposure by a sexually delinquent person in violation of
In Arnold I, defendant challenged his sentence, asserting that the trial court was required by
Defendant sought reconsideration, again urging that a sentence of “1 day to life” was required. We granted the motion because in the interim this Court issued a published opinion controlling our resolution of this issue—People v Campbell, 316 Mich App 279; 894 NW2d 72 (2016). Campbell, 316 Mich App at 299-300, held that although the legislative sentencing guidelines were now only advisory, “the sentence provided under
The Supreme Court granted the prosecutor‘s application for leave to appeal this Court‘s decision in Arnold II, “set aside Campbell,”4 and vacated our opinion based upon it. Arnold III, 502 Mich at 483. The Supreme Court determined that a ” ‘1 day to life’ sentence has never been required by [
The Court outlined the development of the sexual delinquency sentencing scheme. Arnold III, 502 Mich at 447-465. The Court described how the first sexual delinquency acts provided for the indefinite commitment of “sexual psychopaths” until a court determined that they were no longer “a menace to the public safety.” Id. at 457 (cleaned up).5 Over time, “the Legislature began chipping away at” the broаd application of the sexual delinquency sentencing scheme. Id. at 464. It is now limited in application to five specific offenses: “(1) sodomy,
The Court concluded that the “1 day to life” sentence comprises an “alternate sentence” in accordance with
In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. . . . Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges
the court may impose any punishment provided by law for such offense. [ MCL 767.61a (emphasis added).]
Under this statute, before the enactmеnt of the statutory sentencing guidelines, “a judge faced with an adjudicated sexual delinquent guilty of indecent exposure could choose any legally available sentencing option that the judge deemed appropriate,” including a fine and jail sentence of up to 1 year or alternatively “1 day to life” as provided in
“Having concluded that Kelly correctly construed ‘1 day to life’ as an option,” the Supreme Court then considered whether the option of “1 day to life” was modifiable—permitting a sentence within the range identified—or nonmodifiable—requiring the precise sentence of “1 day to life.” Id. The Court found the “1 day to life” sentence nonmodifiable based on the Legislature‘s use of the mandatory term “shall.” The Court also found the characterization of “1 day to life” as an “alternate sentence” in
And viewing the “1 day to life” sentencing scheme in conjunction with
MCL 769.9(2) applies only to “cases where the maximum sentencе in the discretion of the court may be imprisonment for life or any number or term of years.” The phrasing “life or any term of years” is used verbatim in a variety of statutes. WhenMCL 750.335a was adopted, it spoke of “imprisonment in the
state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life,” 1952 PA 73, and
MCL 767.61a speaks of “an indeterminate term, the minimum of which is 1 day and themaximum of which is life.” On its own, this difference in wording may be enough to remove sexual-delinquency cases from MCL 769.9(2) . Moreover, we agree with Kelly that becauseMCL 769.9(2) is a general indeterminate sentencing statute, while the sexual-delinquency scheme is a specific, integrated scheme, the more specific statute controls. [Arnold III, 502 Mich at 472 (cleaned up).]
The Court concluded:
[W]e construe the “1 day to life” sentence that the Legislature adopted in 1952 as bеing an alternative sentencing option that existed alongside other options, such as a life sentence or a term of years. Much as the sentence concepts “life” and “any term of years” are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both, so “1 day to life” was a mutually exclusive concept that a sentencing judge was free to opt for to the exclusion of a life- or term-of-years sentence. [Id. at 472-473 (cleaned up).]
Based on this ruling, the Court overruled or abrogated various cases to the extent they treated the “1 day to life” provision as an exclusive sentence. See People v Butler, 465 Mich 940, 941; 639 NW2d 256 (2001); People v Murphy, 203 Mich App 738; 513 NW2d 451 (1994). See also People v Buehler, 477 Mich 18; 727 NW2d 127 (2007); Buehler (On Remand), 271 Mich App 653; People v Buehler, 268 Mich App 475; 710 NW2d 55 (2005). The Court also determined that the reasoning in Campbell “cannot stand,” and must be “set asidе” as it did not accord with the plain language of
In relation to the legislative sentencing guidelines, the Court reasoned:
[W]e do not believe that Lockridge has the significance ascribed to it by the Court of Appeals in Campbell. Lockridge concluded that the scoring process for the legislative sentencing guidelines violated the Sixth Amendment and, as a remedy for that constitutional violation, directed that henceforth the guidelines would be only advisory. Neither identifying that problem nor crafting that remedy illuminates whether the adoption of the sentencing guidelines and the classification of indecent exposure by a sexually delinquent person as a Class A felony could make legal a sentence that would not have bеen legal before the sentencing guidelines were adopted. Whether the sentencing guidelines are mandatory or merely advisory is neither here nor there; the question is what effect the legislative act of adopting the guidelines had on the sexual-delinquency scheme. [Id. at 480-481.]
And in relation to the Buehler line of cases, the Court continued:
[W]e no longer believe Buehler III[, 477 Mich 18,] fully understood the nature of the sexual-delinquency scheme. Its embrace of a vision of dueling
mandates between
MCL 750.335a and the sentencing guidelines misconstrued the nature of the “1 day to life” sentencing option provided byMCL 750.335a andMCL 767.61a . It appears that the Court of Appeals in the instant case relied on the series of Buehler decisions, in particular their caveat that the 2005 PA 300 amendment ofMCL 750.335a may have been meaningful, in reaching its decision. By contrast, we have now concluded that the 2005 PA 300 amendment made no meaningful textual adjustment to the statute. [ Arnold III, 502 Mich at 479-481.]
Ultimately, the Supreme Court concluded:
Kelly correctly construed the sexual-delinquency “1 day to life” scheme, as an option a trial court could use its discretion to consider imposing alongside the other statutory penalties available under the statute (at that time, up to 1 year in jail, which was expanded by 2005 PA 300 to be as much as 2 years in prison for aggravated indecent exposure). We hold that the switch in 2005 PA 300 from “may be punishable” to “is punishable,” and “the minimum of which shall be 1 day” to “the minimum of which is 1 day,” and “the maximum of which shall be life” to “the maximum of which is life,” is merely stylistic. We conclude that Lockridge‘s constitutional remеdy is not pertinent to the outcome of this case. And we disavow Buehler as having been premised on a misconception of the law of sexual delinquency. [Arnold III, 502 Mich at 482-483.]
Our directive, “in light of these rulings,” is to determine “what effect the adoption of the legislative sentencing guidelines in 1998—and in particular, their classification of the instant offense as a Class A felony—had on a trial court‘s options in sentencing a defendant convicted of indecent exposure by a sexually delinquent person.” Id.
II
Resolution of this issue requires us to reconcile the optional, alternative sentence of “1 day to life” provided in
Although Kelly was issued before the enactment of the legislative sentencing guidelines, our Supreme Court reaffirmed its interpretation of
Sexual delinquency is not merely a penalty enhancement provision related to the principal charge; it is an alternate sentencing provision tied to a larger statutory scheme.
We conclude that the alternate sentence is an indeterminate term of one day to life imprisonment. In interpreting a statute, we apply the rule of ordinary usagе and common sense. Applying such a rule, the word “shall” generally
denotes a mandatory duty. Because the statute at issue provides that the minimum of the indeterminate term shall be one day and the maximum shall be life, we conclude that that is the prescribed length of the indeterminate term. [Kelly, 186 Mich App at 528-529 (cleaned up).]
In addition, this Court found that the “indeterminate sentence of one day to life” was not invalid under the “indeterminate sentence act, specifically
In 1998, the Legislature enacted the statutory sentencing guidelines, which were intended to apply to specified enumerated felonies committed on or after January 1, 1999.
Two statutes that relate to the same subject or share a common purpose are in pari materia and must be read together. The goal of the in pari materia rule is to give effect to the legislative purpose found in the harmonious statutes. When two statutes lend themselves to a construction that avoids conflict, that construction should control. [Rahilly, 247 Mich App at 112-113 (cleaned up).]
Specifically:
The object of the in pari materia rule is to further legislative intent by finding an harmonious construction of related statutes, so that the statutes work together compatibly to realize that legislative purpose. Therefore, if two statutes lend themselves to a construction that avoids conflict, that construction should
control. Two statutes that form a part of one regulatory scheme should be read in pari materia. [People v Butler, 315 Mich App 546, 550; 892 NW2d 6 (2016) (cleaned up).]
Further, our Supreme Court “has previously recognized that although the Penal Code and the Code of Criminal Procedurе ‘were separately enacted and have distinct purposes,’ the two codes ‘relate generally to the same thing and must therefore be read in pari materia. . . . ’ ” People v Washington, 501 Mich 342, 354 n 29; 916 NW2d 477 (2018), quoting People v Smith, 423 Mich 427, 442; 378 NW2d 384 (1985) (opinion by WILLIAMS, C.J.).
In Smith, 423 Mich 427, our Supreme Court offered insight in how to reconcile discrepancies between the Penal Code and the Code of Criminal Procedure, there provisions regarding the definition and distinctions between a misdemeanor and felony. The Court prefaced its analysis by stating, “Statutes which relate to the same persons or things, or which have a common purpose, are to be read in pari materia, and a strict construction will not be given to one statute where doing so would defeat
While the Penal Code and the Code of Criminal Procedure relate generally to the same thing and must therefore be read in pari materia, the two codes were separately enacted and have distinct purposes. As concerns this case, the purpose of the Penal Code is to define crimes and prescribe the penalties therefor. The purpose of the Code of Criminal Procedure is to codify the laws relating to criminal procedure.
Included in the Code of Criminal Procedure are provisions for the proper procеdures to be followed, for example: upon arrest, at the preliminary examination, at trial, and at judgment and sentencing. The Legislature expressly provided that the Code of Criminal Procedure be deemed “remedial” and be “liberally construed to effectuate the intents and purposes” of the act.
MCL 760.2 . [Smith, 423 Mich at 442 (cleaned up).]
In resolving the distinctions between the definitions in the Penal Code and the Code of Criminal Procedure, the Court opined, “It is obvious that the Penal Code definitions apply only to the Penal Code. Similarly, the definitions of the Code of Criminal Procedure are limited in application to that code.” Id. at 444.
Significantly, the Smith Court stated, “We have previously held that the grade given an offеnse in the Penal Code is not the controlling consideration in determining the procedural rights afforded an accused outside the Penal Code.” Id. The Court further explained with regard to the distinction between the definitions of a misdemeanor and a felony in the Penal Code and the Code of Criminal Procedure:
The label placed upon an offense in the Penal Code is just as irrelevant in determining statutorily mandated post-conviction procedures in the Code of Criminal Procedure as it is in determining constitutionally mandated post-conviction procedures. The three post-conviction statutes at issue here, the
habitual-offender statute, the probatiоn statute, and the consecutive sentencing statute, all have the same general purpose: to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts. In order to achieve the Legislature‘s intended purpose in the Code of Criminal Procedure, we find that the Legislature meant exactly what it said: Offenses punishable by more than one year of imprisonment are “felonies” for purposes of the habitual-offender, probation, and consecutive sentencing statutes. Because misdemeanors punishable by two years of imprisonment fall within the “felony” definition, thеy may be considered felonies for purposes of these statutes. [Id. at 445.]
The Court denied that this analysis or reading of the statutory provisions rendered language either superfluous or redundant, indicating “that the definitions in each code have full meaning for all the purposes of that code, but are not simply transferable to the other code.” Id. at 446 n 2. This analysis is equally applicable to the discrepancy or disconnect in sentencing options between
Defendant suggests that sexual delinquency is not an offense, but rather an
Given the context, as discussed above, our Supreme Court‘s holdings in Arnold III serve to define the sentencing parameters for individuals convicted of indecent exposure as a sexually delinquent person. In Arnold III, 502 Mich at 444-477, the Court expended considerable time and effort tracing the history of sexual delinquency. Focus was placed on the efforts of the Legislature to “create a different sentencing option” for individuals identified as sexually delinquent to provide “therapeutic and open-ended” alternatives for those offenders viewed as having “a form of mental illness” requiring “treatment.” Id. at 471. Premised on our Supreme Court‘s discussion and findings, the “1 day to life” sentence is “an alternative sentencing option,” which “existed alongside other options, such as a life sentence or a term of years.” As explained, the ” ‘1 day to life’ sentence was a mutually exclusive concept that a sentencing judge was free to opt for to the exclusion of a life- or term-of-years sentence.” Id. at 472-473.
The Court‘s favorable adoption of Kelly emphasizes that the sentence of “1 day to life” comprises “a nonmandatory option that a trial court could draw upon should it choose to exercise its discrеtion to do so.” Id. at 473. Specifically, in finding that ”Kelly was rightly decided,” the Court emphasized “that
option available.” Arnold III, 502 Mich at 477. This comports with the Court‘s earlier decision in Smith, 423 Mich at 445, recognizing the distinctions between the Penal Code and Code of Criminal Procedure while simultaneously acknowledging the purpose of the Code of Criminal Procedure “to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.” As is the circumstance here, where defendant is a fourth habitual offender, the sentencing guidelines provide yet another sentencing alternative for individuals convicted of indecent exposure as a sexual delinquent. Between the Penal Code and the Code of Criminal Procedure, the judge in this case would be afforded оptions in sentencing, premised on the severity of the behavior and the particular characteristics of the offender, encompassing: (a) 1 day to life for indecent exposure by a sexually delinquent person,
MCL 750.335a(2)(c) still says only that the offense is punishable by a “1 day to life” sentence, and “punishable” expresses only the possibility of punishment, not its necessity. Moreover,MCL 767.61a has not been amended, meaning that it still characterizes “1 day to life” as an “alternate” sentence, not a mandatory sentence. Indeed,MCL 767.61a has always phrased the indeterminate sentence option in the same fashion as the postamendment version ofMCL 750.335a : “the minimum of which is 1 day and the maximum of which is life.” AndMCL 767.61a lays out a procedure common to all five sexual-delinquency crimes, yet each of the other four still uses the former “may be punishable” and “shall be 1 day . . . shall be life” wording. The sexual delinquency alternative sentence is obviously intended to work the same for all five offenses, so if it is optional for the others, it must still be optional for indecent exposure. All signs point to the 2005 amendment adding only the aggravated indecent-exposure offense [toMCL 750.335a ] and making no substantive changes to the “1 day to life” alternative sentence.
The most rational construction is that the Penal Code provides judges with certain options, not mandates, when confronted with an individual convicted of indecent exposure as a sexual delinquent. Trial courts may consider sentencing options consistent with the guidelines, particularly when the trial court determines that factors governed by the Code of Criminal Procedure, such as an offender‘s status as a habitual offender, supply an appropriate mechanism “to enhance the punishment imposed upon those who have been found guilty of more serious crimes and who repeatedly engage in criminal acts.” Smith, 423 Mich at 445. This approach harmonizes the history of sexual delinquency sentencing with the more recent recоgnition that when sentences are imposed they should be “proportional to the seriousness of the circumstances surrounding the offense and the offender,” and that “the proper approach to sentencing is to favor individualized sentencing for every defendant.” People v Sabin, 242 Mich App 656, 661; 620 NW2d 19 (2000). As recently discussed in People v Odom, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 339027); slip op at 8-9:
The purpose of the proportionality requirement is to combat unjustified disparity in sentencing, thereby ensuring that similar offense and offender characteristics
receive substantially similar sentences. Under our system of sentencing, this principle of proportionality is first entrusted to the Legislature, which is tasked with grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments. [Cleaned up.]
“Although the Legislature‘s guidelines are advisory, they remain a highly relevant consideration in a trial court‘s exercise of its sentencing discretion.” Id. at 9.
Ultimately, the relevant statutory provisions in the Penal Code and the Code of Criminal Conduct—
III
Defendant urges that the “rule of lenity” requires us to declare the legislative sentencing guidelines inapplicable. “The ‘rule of lenity’ provides that courts
As noted, the Legislature clearly intended to include indecent exposure by a sexually delinquent person as offenses within both the Penal Code and the Code of Criminal Procedure. The intent of the Legislature to provide alternative sentencing options for individuals convicted of this offense obviates the existence of any ambiguity, rendering the rule of lenity inapplicable. See People v Perry, 317 Mich App 589, 605-606; 895 NW2d 216 (2016) (“Given the clear indication of legislative intent and the absence of ambiguity, the rule of lenity does not apply.“).
IV
Defendant further contends, “If this Court finds that
[Section] 25 is worded to prevent the revising, altering or amending of an act by merely referring to the title of the act and printing the amendatory language then under consideration. If such a revision, alteration or amendment were allowed,
the public and the Legislature would not be given notice and would not be able to observe readily the extent and effect of such revision, alteration or amendment. [Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 470; 208 NW2d 469 (1973).]
“[I]f an act is complete within itself, it does not fall within the constitutional prohibition.” People v Meeks, 92 Mich App 433, 444; 285 NW2d 318 (1979). Specifically, § “25 is directed at preventing undesirable conduct with respect to amendment of a particular act. It does not seek to correct tangential effects which the amendment, revision or alteration may have on those statutes not directly affected.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich at 475. “[A]mendment by implication is not the evil sought to be avoided by [
The legislative sentencing guidelines do not amend or change the language of the Penal Code, specifically
Our Supreme Court also suggested that the holdings in People v Frontczak, 286 Mich 51; 281 NW 534 (1938), and In re Boulanger, 295 Mich 152; 294 NW 130 (1940), may be relevant in the resolution of this matter. Arnold III, 502 Mich at 482 n 20.
In Frontczak, 286 Mich at 53, the defendant was convicted of gross indecency and sentenced to 30 days to 5 years in prison. The Legislature subsequently enacted 1937 PA 196, which subjected a criminal defendant to hospitalization before initiation of his criminal sentence and allowed then-incarcerated defendants to be transferred to a hospital until the defendant‘s purported deviance was cured. Frontczak, 286 Mich at 55-58. The state commissioner of pardons and paroles then filed a petition in the local circuit court, invoking the new statutory provision and seeking to have the defendant committed to a state hospital. Id. at 53-54. Specifically, оur Supreme Court determined that this procedure was unconstitutional under Const Art 2, § 19:
[B]y the 1937 act, if considered a part of criminal procedure, is void, as subjecting an accused to two trials and convictions in different courts for a single statutory crime, with valid sentence interrupted by supplementary proceeding in another court, with confinement in a non-penal institution and with possible resumption of imprisonment under the original sentence. If not for a single offense, then one trial is for a penalized overt act and the other for having a mental disorder, characterized by marked “sexual deviation.” [Frontczak, 286 Mich at 58.]
“Hospitalization, with curative treatment and measures may be dеsirable but, until the law makes a sane person amenable to compulsory restraint as a sex deviator, it falls short of due process in merely providing procedure.” Id. at 59.
In Boulanger, 259 Mich at 153, the defendant pleaded guilty to gross indecency, with his sentencing deferred pending appointment of a sanity commission, which ultimately did not find the defendant insane, but rather “psychopathic or a sex degenerate or sex pervert and dangerous to public safety.” The defendant was sentenced to six months in jail to be followed by commitment to a state hospital “until this court shall adjudge you cease to be a menace to public safety.” Id. at 154. The defendant filed a petition for habeas corpus based on his sentencing to dual punishments. Id. at 156. Our Supreme Court, relying in part on Frontczak, found no authority permitting the Court to commit the defendant to hospitalization arising from his criminal conviction. Id.
Neither Frontczak nor Boulanger is relevant to the issue presented in this remand. There is no request or attempt to impose dual punishments for defendant, or a punishment that is not authorized by law. Defendant received only one of the sentencing options provided by statute. When defendant committed his offense,
We vacate defendant‘s sentence and remand for further sentencing proсeedings. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
Notes
In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.