*1 Fernandez REMAND) (ON PEOPLE v FERNANDEZ 16, 1987, September Decided at Detroit. No. 98521. Submitted Docket 16, 1987. November Stephen R. Fernandez was convicted aiding abetting first-degree with intent assault Court, Jackson, murder, E. J. The Detroit Recorder’s Thomas imposed on the of life trial court a sentence conviction, indicating such a sentence its belief that affirmed, Appeals mandatory. but remanded was The Court of sentence, resentencing, finding while within the that a life court, mandatory. sentencing trial was not discretion people cross-appeal by App appeal by the Mich On reversed, defendant, holding Supreme that a manda- Court required tory on conviction of life sentence is Court remanded murder. Appeals the Court of of whether a determination conspiracy to commit first- sentenced to life parole parole under the murder is so, proper decision. 427 and if retroactive effect of such a Mich 321 Appeals The Court of held: mur- years. eligible he serves ten der is after provides that a which 1. MCL years life or for a term of who under sentence of may on be released served ten calendar sentence pris- parole, only those excludes from consideration major murder or a oners who were sentenced for offense. controlled substance arising Proposal b from There is no restriction _2. References 2d, 549. Am Jur Homicide § 2d, Parole 81. §§ Am Jur Validity, Pardon and Amendment, equal protection clause of Fourteenth relating pardon convicted crimi- or of state statutes nal. 35 LEd 2d 164 Opinion of the Court application of MCL to a life sen- tence for murder. decision, being 3. This a restatement and clarification of law, existing has full retroactive effect. *2 J., Gillis, dissented. He would hold that a murder must be mandatory, nonparolable prison, reasoning life in Legislature, that present conspiracy when it enacted the statute, punish conspiracy felony intended to at seriously least as as the commission of the itself and was charged knowledge was, passage present murder at the time of of the be, mandatory, nonparolable and continues to imprisonment. Additionally, Judge give great Gillis would weight interpretation board’s similar statute. Conspiracy — First-Degree — Sentencing — — Homicide Murder Parole. A murder is eligible parole upon serving release on ten calendar (MCL mandatory prison his 791.23[4]); sentence of life in 28.2304[4]).
Frank J. Kelley, Louis J. General, Attorney Caruso, O’Hair, General, Solicitor John D. Prose- cuting Attorney, A. Timothy Baughman, Chief of Division, Research, Criminal Training and Appeals, Chambers, Thomas M. and Assistant Prosecuting Attorney, the people.
State Appellate Defender Susan Meinberg (by Thomas), for defendant on appeal.
ON REMAND P.J., Before: and J. H. Gillis Beasley, JJ. Gribbs, appeal, On the Supreme Court has
Per Curiam. reversed the decision of this Court1 and held that a Fernandez, App 388; Fernandez Opinion op the Court conviction required life sentence mandatory murder under Court The 750.157a; MSA as follows: provided further Appeals for to the Court of the case We remand person sen briefing decision on whether imprisonment to com tenced to life parole con first-degree murder mit 2304(4) under MCL sideration so, and, decision.[2] of such proper if retroactive effect in MCL "lifer law” set forth (4) as follows: MSA 28.2304 life or for a term sentence for for life prisoners than years, other prisoners sentenced in the first *3 imprisonment term of life or for a minimum offense, who major controlled substance for a subject the sentence is years of served calendar may be parole board and jurisdiction board, subject to parole by the released on .... conditions agree that prosecutor Both defendant and the is serving ten defendant years after 791.234(4); MSA MCL parole consideration to life where, here, as he was first-degree to commit conspiracy specifically does not law statute murder. The lifer convicted persons exclude imprison- to life murder and first-degree board from the jurisdiction ment of the sentence. ten calendar serving after 750.157a; MSA statute, MCL punishment provides Fernandez, 321, 343; 398 NW2d 164 Opinion of the Court equal to that imposed which could be if defendant committing had been convicted the crime he conspired first-degree to commit. The murder stat- ute, 750.316; 28.548, MCL that a of first-degree murder shall be punished by imprisonment for life. statute This not, however, does state that such a sentence of life is nonparolable. What makes nonparolable murder life offense is words, In other murder because specifically excluded from the above while conspiracy to commit first-degree murder is not.
Furthermore, Proposal b preclude does not appli cation of the lifer law to persons In first-degree murder. Johnson,3 in the Supreme Court held that Proposal application had no to fixed or b Therefore, sentences. as Court recog nized the within case: Thus, apparent arising there is no restriction Proposal on application from a life of the "lifer law” to b imposed sentence murder.[4] agree We with both defendant prose- and the cutor and conclude that a person sentenced to life jurisdiction board after serving ten years. calendar
We further decision, believe that which is essentially a restatement clarification exist *4 law, ing should receive full retroactive effect.5 3 494, 498; Mich 421 364 654 NW2d 4 Fernandez, supra, 427 at 333. 5 Kamin, 482, 494; (1979); See 405 Mich 777 NW2d People Szymanski, 745; v Fernandez J. H. J. by Gillis, Dissent (dissenting). Gillis, I would dissent and J. to com- hold a sentenced man- mit murder must be prison. life in datory, 28.354(1) part: in 750.157a; MCL MSA conspires together or Any person who prohibited by offense persons to commit an more law, legal illegal in an manner act or conspiracy punishable of as guilty of crime the provided herein: (c) (a) (b), except provided paragraphs in as
(d) prohibited by the law if commission of offense more, punishable year or by shall be convicted under section punished by penalty equal to that which could committing imposed if had been be he in conspired he crime an of a discretion the court additional $10,000.00 [Emphasis sup- may imposed. be fine of plied.] 28.2304(4) provides:
MCL term for life or for a under sentence life prisoners years, other than prisoners in the ñrst or for minimum term of offense, who has major for a controlled substance the sentence served to calendar may jurisdiction board and board, subject to on released supplied.] [Emphasis .... conditions became effective 791.234(4); MSA March 1967. MCL of those con- as pertains nonparolability murder, has been effect victed 791.234(4); MSA Although MCL since *5 App 164 Mich J. by Gilus, Dissent 28.2304(4) 1948, has been including amended since 1978, not language been altered. argues
While the majority
that MCL
28.2304(4)
MSA
unambiguous,
I believe other
rules
statutory
construction
are more properly
First,
applied to this
I
Legisla-
case.
note that
the
charged
ture is
knowledge
with
the existing
laws
the same
it
subject
promulgates
when
new
People Buckley,
See, e.g.,
12,
laws.
21;
302 Mich
(1942).
Second,
NW2d 448
an administrative
agency’s interpretation
given great
statute is
weight due to the
agency
expertise
PSB
respect
jurisdiction.
its
Inc,
State Bank v
Comerica
452,
460;
Third,
Legislature’s
the
reenactment
which
interpreted
statute
was
a particular
gives
manner
rise to an inference that
Legislature
the
approved
See,
interpretation.
that
Wayne
General,
Co
v Auditor
e.g.,
237;
Fourth,
As defendant present the statute was Legislature’s enacted dissatisfaction with the penalties previ- lenient provided. ously At the time MCL passed, was penalty murder was nonparolable mandatory, life. The Legislature charged must be with knowledge of Buckley, supra. See, this penalty. e.g., Further- more, board has inter- consistently preted the conspiracy to commit first- degree murder as mandatory, life. In amending
Legislature did not that specifically conspir- state v Fernandez H. J. J. Gilus, Dissent was a in the first acy knowledge despite chargeable its offense parolable See, e.g., interpretation. board’s Wayne supra. Buckley, supra; Co, Finally, believe punish conspiracy Legislature intended as the seriously at least as *6 itself. MCL commission conspiracy may I note that the defendant because severely punished more Id. For these with another. plan must crime sen- reasons, properly I that defendant believe life. further mandatory, tenced to that defendant should I do not believe note that were the hit men he hired merely benefit because unsuccessful. restate- believe that decision
I further and, therefore, entitled to existing law ment Szymanski, effect. full retroactive (1981), lv den 411 745; 302 NW2d (1981). I would affirm. Mich 863